DE-BA'ATHIFICATION CONTROVERSY SHIFTS TO APPEALS

C O N F I D E N T I A L SECTION 01 OF 02 BAGHDAD 000200 SIPDIS E.O. 12958: DECL: 08/18/2019 TAGS: PGOV KDEM IZ SUBJECT: DE-BA'ATHIFICATION CONTROVERSY SHIFTS TO APPEALS PROCESS, BUT TIME REMAINS KEY FACTOR Classified By: A/DCM Gary A. Grappo, for reasons 1.4 b and d. ¶1. (C) SUMMARY: Developments January 26 confirm that the political parties have backed away from a political fix to the de-Ba,athification controversy, out of fear that the Iraqi public will not tolerate a solution that creates the perception of being soft on Ba'athists. Speaker Samarrai,e told A/DCM January 26 that PM Maliki and President Talabani had agreed over the weekend to throw their weight behind the appeals process, offering public support to the judges and expressing confidence that this was the only way to solve the de-Ba,athification controversy. The Cassation Chamber, recently established to hear appeals of the disqualifications recommended by the Accountability and Justice Commission (AJC),has been fully formed and has received 305 appeals to date; meanwhile, the AJC has reversed its disqualification of 54 candidates who were mistakenly identified because their names were similar to those of known Ba'athists. The COR seems poised to appoint seven new members to the AJC. We are determining how this process might be handled in the next week to allow IHEC to maintain the electoral timeline (printing candidate lists by February 1). END SUMMARY. SPEAKER INSISTS ON LEGAL PROCESS, PRE-ELECTION VETTING -------------- -------------- ¶2. (C) Speaker Samarrai,e told A/DCM January 26 that in his meeting with the PM and President Talabani over the weekend, they had agreed to throw their weight behind the appeals process, offering public support to the judges and expressing confidence this was the only way to solve the de-Ba,athification controversy. It would be seen by the Iraqi public as more fair, said the Speaker. Samarrai,e said he had asked the PM about the prospects for a political track to help resolve the issue. The PM had responded that it was impossible because there was too much anger against the Ba,athists, which was creating political pressure on the parties to avoid actions that could be viewed as "soft" on the Ba,athists. (COMMENT: Samarrai,e,s statement confirms our suspicion that political players have backed away from seeking a political solution out of fear that the Iraqi public now sees this as an issue requiring genuine de-Ba'athification action, supported by law, as opposed to a political fix. END COMMENT.) ;ACKNOWLEDGES THAT TIME IS RUNNING SHORT -------------- ¶3. (C) The Speaker said they also agreed that such an appeals process should be held before, not after, the elections. He acknowledged concern about delays in the elections process caused by the de-Ba'athification controversy, noting that IHEC Chairman Faraj al-Hadairy had said that the candidate lists must be sent to the printer by February 1. (COMMENT: IHEC also needs to kick off the campaign season, the start of which has already been postponed once. It will face real challenges doing so before there are final decisions on all the appeals. END COMMENT.) Samarrai'e suggested that some candidates might be able to swear that they were not Ba'athists and be included in the candidate list on the condition that they would accept removal if it was later determined that they were ineligible under the AJC law. (NOTE: Despite his stated opposition to the idea, this is essentially a variation on post-election vetting. END NOTE.) GETTING A REAL AJC APPOINTED -------------- ¶4. (C) In tandem with the emphasis on the judicial process, the three had agreed on the importance of re-constituting the Accountability and Justice Commission (AJC),according to Samarrai'e. A list of suggested names has been forwarded to the PM,s office. The Speaker expressed hope that the PM would send the list of nominees to the COR January 26, blessed by the Council of Ministers. Once re-constituted, the Commission would be independent and free to revisit the list of 500-odd names disqualified as candidates, or just to move forward. In Samarrai,e,s view, this would address the question of the illegality the AJC,s decisions. DISCOUNTS IMPACT OF 500 DISQUALIFIED CANDIDATES -------------- -- ¶5. (C) Samarrai,e said these decisions also reflected the political judgment that excluding 500-odd people as candidates would not have a significant impact on an election with 6,000 candidates remaining. This judgment was reinforced in his view by the reality that the 500-odd candidates were spread over a significant number of political parties/lists and were not focused on one sectarian group. Sixty-odd candidates from Iraqiyya were targeted for exclusion; out of a coalition list of 600-700, the impact would be dispersed. (COMMENT: Regardless of the arguable dispersed impact, Iraqiyya political figures tell us the disqualifications were unjustified and deeply problematic for their coalition. END COMMENT.) 60-ODD CANDIDATES REINSTATED; DISQUALIFIED BY MISTAKE -------------- -------------- ¶6. (C) The Speaker said he thought that 60-odd people have been reinstated by the ad hoc COR committee on de-Ba,athification. (NOTE: Its three members were drawn from the larger COR oversight committee on de-Ba'athification. END NOTE.) Abdullah Aliyawi, one of the members of the committee, confirmed that his committee had reinstated a significant number of candidates, but he put the number at 54, telling Emboffs the committee had determined that these people were never Ba,ath Party members and their names just happened to be confused with similar names who were Ba,athists. Contacts tell us no names of significant political figures are on the list of reinstated. ¶7. (C) Aliyawi also told Emboff that the three-person committee has now disbanded, considering its work done. (NOTE: We have been told that one member of the committee, outgoing Sadrist Trend COR member Falah Shanshal, has ambitions to be appointed to the AJC. His name is reportedly on the list submitted to the PM. END NOTE.) Its main job had been to review a 1,320 person list from the AJC and whittle it down to the 511 names eventually given to IHEC. The 54 names were subsequently removed from the list of 511. The press is reporting that 62 names have been reinstated. APPEALS CHAMBER HAS RECEIVED 305 APPEALS -------------- ¶8. (C) Supreme Court Chief Judge Medhat told Emboff today that the seven-judge Cassation Chamber, established to hear appeals of AJC decisions, has now received 305 appeals to date and he expected more to come. Medhat confirmed that the Cassation Chamber had not been involved in the decision to reinstate the 54 candidates. He also confirmed that there were two ways in which candidates could object to their disqualification, either to IHEC or to the AJC but that the Cassation Chamber, not the Electoral Judicial Panel (EJP) would review all the appeals. (COMMENT: The Iraqis are obviously making this up as they go. Initially contacts indicated that there would be two possible appeals channels, but the decision seems to have been made to streamline the process, possibly based on a reading of IHEC law which assumes that the EJP's role as an appeals body is to hear appeals of election complaints on election day. END COMMENT.) ¶9. (C) Sunni candidate Saleh al-Mutlaq told Emboff January 26 that he believes the decision to disqualify him will be upheld. He also noted that he was getting increasing worried and frustrated and claimed he might ask Iraqiyya leadership to formally protest the decisions and to consider a boycott. ¶10. (C) The press today is reporting that IHEC, accepting instructions from the AJC, has now ordered nine entities (parties) decertified. Our understanding is that candidates who were running in these parties can remain as candidates in their respective broader coalitions, for example, Iraqiyya (unless they were removed as individuals by the AJC). Mutlaq complained about what he described as IHEC's January 25 decision to disqualify his political party, the Iraqi Front for National Dialogue, saying "this is not IHEC's job." HILL