It's Not Just Saddam On Trial

Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

In fact, don't expect anything. When a brand-new justice system gears up for its first big test, and that test happens to be a capital trial for the Mother of all Middle-Eastern dictators, anything can happen. Better to expect chaos and then be pleasantly surprised if order ensues, right?

Five judges will determine the fate of Hussein and seven other defendants, all of whom are charged with war crimes stemming from the execution of approximately 140 men in Dujail, Iraq in the early 1980s. The men were killed - often at the Abu Ghraib prison - after an assassination attempt on Hussein in 1982.

Capital punishment is the almost certain outcome of the trial, as it is in many cases here in the States which pit creepy and unpopular defendants against outraged citizens.

Why a Dujail trial before a trial involving Hussein's more infamous (and widespread) alleged crimes? Because the Iraqi government figured it would be best to start off with something relatively simple.

And it ought to tell you something about what lies ahead for the newly-created justice system that in Iraq a mass murder case involving 140 or so victims constitutes a "relatively simple" case. By contrast, remember, the Oklahoma City bombing trial, still the largest murder trial in American history, involved 168 deaths.

Hussein has no traditional legal defense. He can't point to some other maniacal dictator and blame him. He can't argue that the witnesses against him are falsely testifying because they made plea deals with the government. He can't say that prosecutors haven't found the bodies or identified the victims. He can't assert an insanity defense or hire Barry Scheck to come in and talk about the fallibility of scientific evidence.

Hussein can, however, try to turn his legal fight into a political and historical battle and that's precisely what he already has told the world that he will do. He will blame America and her allies. He will blame his domestic opponents. He will blame Iran.

He will blame everyone and anyone he can think of as a way of offering his view that he is a victim in all of this: a noble leader who was just trying to do what he thought was best for his beleaguered country. And there will be no federal rules of evidence or judicial decorum orders to rein him in.

Forget about the ultimate disposition of the case. It is preordained — as are the results of virtually all post-trial tribunals like this. Forget about Iraq's new appellate process — it's still being hashed out even as this trial begins.

Forget about a worldwide impression of the trial as a fair process that gave all of the defendants every universally-recognized due process right to which they were entitled. That doesn't necessarily happen here in America in every case so why should anyone expect it to happen in a place an impartial judiciary was a fantasy for decades during Hussein's reign? This event is more about politics and history and tradition than it is about the law and everyone involved knows it.

So the only open questions about Wednesday's proceeding are whether Hussein will push his judges to their wit's end even at the outset of his trial and what those judges will say and do if he does.

We are told that there will be no opening statements or witnesses Wednesday the way you ordinarily would see at the start of an American trial. Instead, we are told that the judges will simply announce the charges against the defendants — the way we would see during an arraignment — and then sit back and permit defense counsel to ask for more time to prepare their defense and for more documents.

We also expect to hear Hussein's lawyers formally challenge the tribunal's jurisdiction and authority. You don't see this much in our courts but it is fairly standard stuff during a show trial of this magnitude; especially a trial that follows the conquest of a country and the fall of a government.

Hussein claims that he is still the valid leader of Iraq and that the government set up following his military defeat cannot legally speak for Iraq. The Nazis tried a version of this defense, too, at Nuremberg, and what it lacks in legal force it makes up for in sheer gall.

This political defense would have happened in a trial of Saddam Hussein whether that trial occurred in Iraq under Iraqi law as dispensed by Iraqi judges or before an international tribunal at The Hague.

You just need to read this week's headlines from Amsterdam — where Slobodan Milosevic's war crimes prosecutors are warning that his already four-year-long trial may last another four or five years — to know how even an august body can be twisted and turned this way and that by a wily defendant who is more interested in making points for posterity than for an appeal. And right now Hussein's judges, whomever they are, don't yet qualify for "august" status.

On the day that this long-awaited trial begins, we have no way of knowing exactly what to expect.

We don't know, for example, whether the judges will consider the defense motions on the merits or simply schedule a hearing for another day. We don't know if we'll get a glimpse into the specifics of the defense cases or whether the event will be as ministerial as many of our pre-trial hearings are on this side of the Atlantic.

Mostly, however, we really don't know whether any or all of the judges will permit any or all of the defendants to say anything in their own defense.

There is room in any trial, in any case, for a political defense — just ask former House Majority leader Tom DeLay about the merits of a political defense. Indeed, some of the greatest trials in American history, for example, have had strong political components to them, including some of the great counterculture trials of the 1960s and 1970s. And if Hussein wants to go down shouting about all the injustices foisted upon him he has that right, even as one of history's losers.

But there should be no room in a trial, especially the first Iraqi war crimes trial that involves Saddam Hussein, for the sort of finger-wagging harangues for which Hussein is famous.

Will the judges stand up to Hussein even as they hide under a cloak of anonymity for fear of terrorist retribution? Will the prosecutors rise up when Hussein winds up? Can the people in charge of the process show their fellow citizens and the rest of the world that a rule of law has emerged from the fog of Hussein's tyranny?

Stay tuned. Hussein's on trial for his life. His judges and prosecutors are on trial for their country and its future.