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Cablegate: Mgle01: Uniiic and the Defense's Case for Jailed

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S E C R E T BEIRUT 002034

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NSC FOR ABRAMS/WERNER/DORAN/SINGH

E.O. 12958: DECL: 06/20/2016
TAGS: PTER KCRM PINR KISL ASEC LE SY UN
SUBJECT: MGLE01: UNIIIC AND THE DEFENSE'S CASE FOR JAILED
GENERAL JAMIL AS-SAYYID

REF: BEIRUT 1823

Classified By: Ambassador Jeffrey Feltman. Reason:
Sections 1.4 (b) and (d).

SUMMARY
-------

1. (S) Reftel reports that UNIIIC Commissioner Serge
Brammertz is deeply worried that the evidence against the
four jailed Lebanese generals, suspected of complicity in the
Hariri assassination, may not be strong enough to justify
their continued detention. Release of the generals would
have a seismic effect on the political scene in Lebanon.
General Jamil as-Sayyid, former head of the Surete Generale,
has been held, like the other three generals, since August
30, 2005. As-Sayyid is represented by an attorney who is
requesting as-Sayyid's immediate release from prison. His
arguments are based on procedural and substantive grounds
that are discussed below. This attorney also told us that he
would be approaching PM Siniora, Sa'ad Hariri, Walid
Jumblatt, and Amine Gemayel with the offer that if as-Sayyid
were to be released from prison, as-Sayyid would respond
cooperatively by departing the country within 24 hours.
As-Sayyid's attorney's largely procedural arguments may or
may not be meaningful elements in an eventual trial before an
international tribunal. The real question, by our own
informal legal analysis, is whether the UNIIIC and Lebanese
prosecutors have gathered sufficient evidence to justify the
continued detention of as-Sayyid and the three other
generals. Brammertz's concern about the eroding basis for
continued detentions prompts us to report these legal issues
in greater detail. End Summary.

THE ARRESTS
-----------

2. (C) On August 30, the Lebanese judicial authorities
issued a restraining order authorizing the detention of four
generals at the headquarters of the UN International
Independent Investigation Commission (UNIIIC) of four
generals. The four, who continue to be held in Lebanese
facilities, were General Jamil as-Sayyid, former Director
General of the Surete Generale; General Ali Hajj, former
Director General of the Internal Security Forces, General
Raymond Azar, former head of military intelligence for the
Lebanese Armed Forces; and General Mustapha Hamdan, who was
at the time of his arrest still serving as director of the
Presidential Guard. They were, a few days later on September
3, subjected to an arrest warrant issued by the Lebanese
examining magistrate Elias Eid. Eid was acting at least in
part on the recommendation of then-UNIIIC Commissioner Detlev
Mehlis. Mehlis had also conveyed the arrest recommendation
to Lebanese Prosecutor General Said Mirza. The four generals
have been held in Lebanese detention ever since.

AS-SAYYID'S CASE
----------------

3. (S) Upon Jamil as-Sayyid's detention in August, he
engaged as his lawyer Akram Azoury, a respected and able
attorney known for an interest in human rights issues.
Azoury has since submitted to the UNIIIC about ten legal
memoranda on as-Sayyid's behalf, as well as related requests
to the UN SYG. Azoury has met discreetly with the DCM on
several occasions during the past six months to apprise the
U.S., as a permanent member of the UNSC, of his case for
as-Sayyid. The most recent meeting took place on June 16.
Azoury also meets with other P-5 missions in Beirut and the
UN SYG's personal representative Geir Pedersen. Azoury has
shared with us most of his legal memoranda. His latest memo,
dated May 23, was addressed to Serge Brammertz as UNIIIC
Commissioner. The memo makes the points discussed in paras
4-6 below.

4. (S) Azoury wants as-Sayyid released from detention. To
that end, he requests from Brammertz three actions:

-- That the UNIIIC issue an opinion favorable to the release
of as-Sayyid.

-- That written notification of this opinion be transmitted
by the UNIIIC to Lebanese judicial authorities.

-- That the Commission formally retract its early September
2005 (arrest) recommendation to the Lebanese examining
magistrate, in order to allow the Lebanese judiciary to
determine for its own part whether Jamil as-Sayyid should
continue to be incarcerated.

5. (S) UNIIIC Commissioner Brammertz has answered this
memorandum with a terse but significant reply. Brammertz, in
a June 6 reply to Azoury, which Azoury has also passed to us,
said that, "I regret to tell you that I cannot follow up your
memorandum, in as much as the points that you raise rest
exclusively within the jurisdiction of Lebanese judicial
authorities. For this reason, I have transmitted your
memorandum to the Prosecutor General." Azoury explained this
reply to DCM as signifying the following: While Mehlis in
September had recommended to the Lebanese authorities that
they arrest the four generals, Brammertz is suggesting that
in his analysis of his role as a Commissioner, such a
recommendation for arrest would have been beyond his
authority. Accordingly, Brammertz is suggesting now that a
retraction, by him, of the Mehlis September arrest
recommendation would also be an act beyond his authority.
Therefore, he passes the issues surrounding the detention of
Jamil as-Sayyid wholly over to Lebanese authorities. He
possibly implies these questions should have been adjudicated
in the first place without any suggestions or prompting from
UNIIIC Commissioner Mehlis.

6. (S) Azoury, in his latest memorandum of May 23, as well
as previous memoranda, lays out a case for why Jamil
as-Sayyid should be released from detention. The five
principal arguments that Azoury makes are as follows:

(a) The original arrest and detention of Jamil as-Sayyid
violated normal procedural practices and was essentially a
political act. UNIIIC Commissioner Mehlis exceeded his
authority in recommending arrest, the Lebanese judicial
authorities examined the evidence only briefly before issuing
the arrest warrant, and as-Sayyid was initially interrogated
without the presence of a lawyer. As Azoury told us orally,
"the policeman (Mehlis) was acting like a court, and the
court was not asserting is proper responsibilities."

(b) Jamil as-Sayyid has never been permitted to confront his
accusers, nor the witnesses of who have provided evidence
against him, nor any of the evidence itself. The most
important of these witnesses would be the Syrian national
Zouhair as-Saddik.

(c) UNIIIC, and perhaps Lebanese government interrogators,
have persistently confronted as-Sayyid with hypothetical
versions of how the Hariri assassination was planned and
executed. In each case, they say, "You had to have known
something about this. . . " This practice gives additional
weight to the argument that as-Sayyid's detention is based
more on politics than evidence of participation in a crime.

(d) The controversial "black box" issue, which revolved
around a Surete Generale slush fund of about USD 30 million
for special operations including possibly the Hariri
assassination, has been satisfactorily resolved. The "black
box" was legitimately authorized, and there are written
records to confirm the justifiable expenditures from the
"black box."

(e) UN investigators have used illegal and unprofessional
techniques in their interrogation of as-Sayyid. Here, Azoury
gives special attention to former UNIIIC chief investigator
Gerhard Lehmann. He describes, in some detail, Lehmann's use
of the game "prisoner's dilemma" with as-Sayyid. In this
classic gambit, Lehmann offered special treatment to
as-Sayyid if as-Sayyid would reveal more to him than the
other three detained generals, and told as-Sayyid that he
(Lehmann) was making the same offer to the other three.
(Comment: We do not know whether "prisoner's dilemma"
violates international legal norms, but Azoury treats it as
though it does. End Comment.)

THE OUTLOOK
-----------

7. (S) That Brammertz is worried about the GOL's continued
ability to detain the four generals is cause for us to worry
as well. Azoury's largely procedural issues discussed
immediately above may or may not be meaningful elements in an
eventual trial before an international tribunal. The real
question, by our own informal legal analysis, is whether the
UNIIIC and Lebanese prosecutors have gathered sufficient
evidence to justify the continued detention of as-Sayyid and
the three other generals. Brammertz, in his June 6 reply to
Azoury, begs this question by referring it entirely to the
Lebanese judicial authorities. Azoury, in his five arguments
above, does not really reach the issue of the weight of the
evidence, since he has maintained that as-Sayyid never had
anything to do with the Hariri assassination, including
foreknowledge that something might be up.

8. (S) An interesting aspect to all this is that Azoury
informed DCM on June 16 that he, as as-Sayyid's attorney,
would soon be approaching Lebanese PM Fouad Siniora, Future
Movement leader Sa'ad Hariri, Druze leader Walid Jumblatt,
and Phalange party leader Amine Gemayel to make a proposal.
The proposal would be that if Jamil as-Sayyid were released
from jail, he would depart the country within 24 hours. The
incentive to Lebanon's political leaders, presumably, would
be that they would have as-Sayyid out of their way soon,
rather running the risk of having him released for lack of
evidence and then mobilizing his pro-Syrian friends against
them all in Lebanon. We note here that the four political
figures mentioned by Azoury are members of the
pro-independence March 14 coalition. We will follow up
quietly with them for their views on as-Sayyid and the other
generals.

FURTHER ELEMENTS
----------------

9. (S) Azoury, in the course of our June 16 meeting with
him, made several other comments about the unfolding UNIIIC
investigation. Among them, he said that Jamil as-Sayyid, as
head of Lebanon's Surete Generale, had never met Syrian chief
of military intelligence Asef Shawqat, an object of UNIIIC
interest. Azoury, for his part, said that he had never met
Jamil as-Sayyid until taking on his case. He reported that
he meets three times per week with as-Sayyid. He reported
that controversial former chief investigator Gerhard Lehmann
continues to travel to Lebanon, and disclaimed any knowledge
of what he is up to, but said he had seen Lehmann in a Beirut
restaurant this past month.

10. (S) The Syrian national Zouhair Ibn Mohamed Said Saddik
remains an enigma. Former UNIIIC Commissioner Mehlis appears
to have drawn in part on Saddik's testimony in writing the
October 2005 conclusions about Syrian and Lebanese
intelligence complicity in the Hariri murder. Azoury said
that Saddik had approached the UNIIIC on his own accord,
suggesting that he was a Syrian intelligence set-up. Saddik
was then sent to France, which has no extradition treaty with
Lebanon or Syria, thus protecting him. There was a
conspiracy, of which Saddik was a small part, and one of his
roles was to bring about the incarceration of General
as-Sayyid. The Syrians are nervous, especially about the
information that might have been provided to the UNIIIC by
the Syrian witness Houssam Houssam in Damascus. Meanwhile,
Azoury wondered, who is paying Saddik the USD 2,000 or so per
month that it must cost him to live in France. Azoury
thought that 99.5 percent of what Saddik told the UNIIIC was
probably false or contrived, but the .5 percent was real, and
Brammertz is trying to find that .5 percent.

COMMENT
-------

11. (S) Azoury, despite his objections to as-Sayyid's
detention as a "political" matter, is advocating a purely
political solution to his client's problem, approaching
Jumblatt, Hariri, and Gemayel, none of whom have any judicial
authority. It is not even clear to us what authority Prime
Minister Siniora has to make a decision to release as-Sayyid.
From our perspective of advocating judicial independence,
this would probably not be a step in the right direction.

12. (S) Comment, continued: In any case, Jumblatt, Siniora,
Hariri, and Gemayel could be expected to ask whether
as-Sayyid -- like his longtime ally, Hizballah -- might be
highly selective in how he chose to uphold his end of the
bargain, much as Hizballah has been in the National Dialogue
talks. They might wonder how quickly he would leave
following his release -- Azoury's promise of departure within
24 hours notwithstanding -- and how long he would stay away.
In the end, they might well prefer the possibility of
as-Sayyid being released in the future to the certainty of
him being released now.

13. (S) Comment, continued: However, in two separate
meetings last fall, senior justice Ralph Riache, President of
Lebanon's Criminal Court and the Ministry of Justice's
official contact with the UNIIIC investigation, told emboff
that the government of Lebanon has the legal authority to
hold individuals suspected in crimes of state indefinitely.
Riache mentioned this clause on two separate occasions, in
direct response to emboff questions about the legal status of
as-Sayyid and the three other incarcerated security chiefs.
While the Embassy does not claim expert legal opinion on
Lebanese penal codes, it appeared during our last meetings
with Riache that the MOJ felt no obligation to release
as-Sayyid and no reservations about holding him indefinitely.

14. (S/NF) Comment, continued: Besides having a seismic
effect on the political situation here, as-Sayyid's release
might well have security implications for us as a diplomatic
mission. If as-Sayyid gets out, he is going to be angry and
seeking payback, and he is going to see the United States as
at least partly responsible for his interrogation by the
UNIIIC and his long months in detention. A released
as-Sayyid might conceivably quickly reconstitute a network of
contacts and clients in the security apparatus, his task made
easier and his influence enhanced by the public perception of
a pro-Syrian resurgence that his release would cause.
Working with Hizballah and the Syrian regime, as-Sayyid --
despite his close cooperation with us over the years before
Hariri's assassination -- could potentially employ that
network, when the right time came, to do us harm. End
comment.
FELTMAN

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