This record is a partial extract of the original cable. The full text of the original cable is not available.

C O N F I D E N T I A L SECTION 01 OF 03 BAGHDAD 004090 
 
SIPDIS 
 
E.O. 12958: DECL: 10/03/2015 
TAGS: PGOV PNAT PHUM KDEM IZ
SUBJECT: NEW TNA INTERPRETATION OF "VOTER" COULD SPARK 
SUNNI PROTEST 
 
Classified By: CHARGE D'AFFAIRES DAVID M. SATTERFIELD FOR REASONS 1.4 ( 
b) AND (d). 
 
¶1. (C) SUMMARY.  Two days before recess, the Transitional 
National Assembly (TNA) passed a resolution on October 2 that 
could dim the hopes of Sunni Arabs seeking to vote down the 
constitution.  The resolution inconsistently defines the word 
nakhabeen, or "voters", as it appears in Article 61 (c) of 
the TAL.  Under the new clarification, the constitution would 
pass if a majority of voters ("those who vote") approve the 
constitution and if two-thirds of the voters ("those who are 
registered to vote") do not veto the constitution.  Thus, the 
TNA resolution interprets the word "voters" to have two 
different meanings at two different places in the same 
sentence.  It would be harder for Sunni Arabs to muster 
two-thirds of the registered voters in three provinces, a 
benchmark not intended in the TAL.  We are hearing different 
justifications from different Shia Coalition leaders about 
why this resolution is needed.  In any case, UN officials 
believe that this interpretation fails to meet international 
standards and are meeting with TNA officials.  We already are 
starting to get charges from Sunni Arabs that the process is 
discredited, and this likely will build.  We have emphasized 
to Iraqi leaders that this provision is problematic and are 
working with the UN election team and the British Embassy to 
convince the Shia Coalition to let the Independent Election 
Commission make its own determination in line with 
international standards.  END SUMMARY. 
 
---------------------------- 
DEFINING THE WORD "NAKHABEEN" 
---------------------------- 
 
¶2. (C) TAL Article 61 (C) reads " The general referendum will 
be successful and the draft constitution ratified if a 
majority of voters in Iraq approve and if two-thirds of the 
voters in three or more governorates do not reject it."  The 
TNA resolution interprets the word "voters" to have two 
different meanings in the same sentence.  According to the 
TNA resolution, the referendum will pass if a majority of the 
"voters" who participate on referendum day approve it and if 
in three provinces two-thirds of "registered voters" - not 
merely those who vote on referendum day - do not vote against 
it.  Although this resolution is not a legally binding 
determination, it is the only definition of the term 
"Nakhabeen" on record and was officially voted on in the TNA. 
 
 
----------------------- 
HOW THE VOTE WENT DOWN 
----------------------- 
 
 
¶3. (C) The Legal Committee introduced the resolution to 
parliament.  After the resolution was read, TNA members were 
asked if there were any objections.  Since none were raised, 
TNA members then were asked to vote on the interpretation. 
One hundred and forty-one members voted to support the 
measure, and the remaining ten members present from the 
Iraqia list refrained from voting. 
 
--------------------- 
UN OPPOSES RESOLUTION 
--------------------- 
 
¶4. (C) UN officials strongly oppose this provision.  After 
meeting with TNA Deputy Speaker Sharastani on October 3, 
UN/EAD Carina Pirelli told PolOffs that if this provision 
holds, the UN would declare that the referendum does not meet 
international standards and would check with the General 
Assembly for next steps.  Pirelli will meet once again with 
Sharastani, Abdul Mehdi, and Barham Saleh to convince TNA 
members to back out of this resolution.  Pirelli told PolOff 
that TNA members were surprised by the international 
response, and she believes that TNA members believed that 
this issue would not result in such a backlash. 
 
------------------------------------------ 
SHIA ACKNOWLEDGE FEAR CONSTITUTION TO FAIL 
------------------------------------------ 
 
¶5.  (C)  Deputy President Adil Abdul Mahdi told Charge on 
October 3 that he understood U.S. concerns about the TNA 
decision.  He explained that the Shia reacted very strongly 
to the bombing in Balad and took it as a signal that there 
will be voter intimidation in Salahadin and other areas that 
are considered supportive of the Constitution.  He asked for 
assurances that voter intimation would not occur.  Charge 
recommended that he work with the UN to set up a mechanism 
whereby incidents of voter intimidation would be promptly 
investigated.  Mahdi suggested that the President could make 
a statement countering the TNA resolution.  Charge said that 
it is better to keep the matter within the TNA and repudiate 
it there. 
 
¶6. (C) Leading Shia Coalition member Humam Hammudi told 
PolOff October 2 that the idea originally had been proposed 
by KDP parliamentary leader Saddi Barzinji.  With Charge 
October 2, Muwaffak Rubai'e, the Iraqi National Security 
Advisor, vehemently defended "fixing" the referendum to 
ensure passage of the constitution.  Otherwise, the Sunni 
Arabs could well defeat the draft on October 15, he 
predicted, and the American government should recognize the 
extent of the resulting political defeat.  Charge warned 
Rubai'e that the National Assembly risked destroying the 
credibility of the process and seeing gaps emerge between its 
position on Iraqi democracy and our own.  PolCouns on October 
3 similarly warned Hammudi that the new TAL interpretation 
would hurt the referendum's credibility internationally, as 
well as hurt the likelihood of pulling more Sunni Arabs into 
the political process.  Hammudi retorted that the insurgents 
would target Shia voters in battleground governorates like 
Diyala, forcing the Shia voters to stay at home and thus 
allowing Sunni Arab voters to defeat the draft constitution. 
PolCouns also cautioned Deputy Speaker Aref Taifur on October 
3 that the resolution would cause major problems.  Taifur did 
not argue back and said that the TNA planned to meet again on 
October 3 to discuss its resolution and then would meet the 
UN again. 
 
¶7.  (C) Another leading Shia Coalition member, Ali Dabagh, 
opined to PolCouns October 3 that a small turnout in Anbar 
that was heavily negative should not count the same as large 
turnout in a Shia heartland province that was heavily 
favorable.  PolCouns warned about the referendum's 
credibility at home and abroad, cautioning that Iraq needed 
more international support, not criticism.  Debbagh conceded 
that, although he had voted for the provision, he avoided 
trying to justify it in the media when asked to do so. 
Although Rubai'e told Charge October 2 that Ayatollah Sistani 
supported the TNA resolution, Debbagh was more guarded.  He 
said that the Najaf clergy was nervous the draft would fail, 
but he carefully avoided saying that they had taken a 
position on the resolution. 
 
¶8. (C) Many Iraqi leaders were unaware that this resolution 
was proposed.  When the DCM met with Prime Minister Jaafari 
the evening of October 2, Jaafari was surprised to learn of 
this resolution. On October 3, PolOff spoke with Iraqi 
Islamic Party Leader Naseer Al-Ani who had also just been 
informed of the provisions and found the provision 
disturbing.  He told PolOff that he would review the 
provision with his party.  National Dialogue Council Leader 
Saleh Mutlak has told reporters that he would not consider a 
referendum conducted under the new interpretation to be valid. 
 
 
-------------- 
PROPOSED FIXES 
-------------- 
 
¶9. (C) Although this resolution is technically not legally 
binding, it has staying power.  It therefore needs to be 
neutralized.  The first way would be to convince TNA members 
to amend the resolution.  An amendment could provide a 
consistent and equitable interpretation of the word voter. 
The second option would be for the IECI to issue regulations 
or a statement.  UN/EAD Pirelli told PolOff that this could 
result in a power struggle between the TNA and the IECI 
possibly leading up to Supreme Court involvement.  The third 
option would be to establish a minimum threshold of voter 
turnout that would be needed before the veto clause, "if 
two-thirds of the voters in three or more governates do not 
reject it," could be applied. 
 
------- 
COMMENT 
------- 
 
¶10. (C) This resolution shows that Shia and Kurdish coalition 
members are clearly worried that the constitution won't pass 
the referendum.   Their fear of a targeted terror campaign 
against Shia voters to keep them away from the polls leads 
them to conclude that the draft constitution might lose in a 
swing governorate like Salah ad-Din or Diyala. 
Unfortunately, rather than considering amendments to win 
broader Sunni Arab support, they have decided to play with 
the rules of the game.  Iraqi leaders clearly have our 
message that they have chosen a bad method of addressing a 
real concern.  The best option now is to let the IECI 
interpret the TAL and the referendum law in line with 
international standards. 
 
¶11. (C) The local UN has relayed this issue to New York but 
does not yet have an official response.  Charge met with the 
British and UN charges, and all agreed that the suggested 
interpretation is problematic.  They will meet the morning of 
October 4 with Shia leaders to focus on the Shias' real 
security concerns as a way to deal with the impetus of the 
resolution.  Also, evening of October 3, MNF-I was tasked 
with developing (on an urgent basis) a focused security plan 
for those cities in Salah ad-Din, Diyala and Ninewa provinces 
containing Shia population clusters and believed by our Shia 
interlocutors to be most at risk of intimidation. 
 
¶12.  (C) Finally, in a late evening call to Charge, Rubai'e 
said that Mohammed Ritha Sistani had been briefed on the 
UN-proposed fix establishing a minimum threshold for a "no" 
vote and had sought his father's views.  According to 
Rubai'e, MRS said his father wanted to know the U.S. position 
before any decision was taken.  Charge reiterated to Rubai'e 
our concern over the impact of a last-minute change in the 
rules in order to address what had been outlined to us as a 
security concern.  Charge told Rubai'e no action should be 
taken in the TNA (Sharistani, according to Rubai'e, intended 
to propose the UN language Tuesday morning) until discussion 
had been had on a Coalition/Iraqi Security Forces security 
plan to address Shia concerns.  Charge noted that, if the 
Shia are now preoccupied with the idea of a Sunni "no" vote, 
the best way to address the issue would be adoption of the 
constitutional changes proposed by Ambassador Khalilzad, 
rather than the dubious short-cut now being proposed. 
Rubai'e said he would inform MRS and would await the outcome 
of discussions on security issues, but he reiterated his 
bottom line:  "the Sunnis should not be allowed to vote down 
the constitution."  Charge cautioned that the political fix 
being advocated not only was likely (if not certain) to 
produce a "no" vote from the overwhelming majority of Sunnis 
but also would call into question the credibility of the 
entire referendum in the eyes of the international community. 
Satterfield