Mark Geragos and Pamela Mackey are busy. Gerry Spence's country-boy shtick won't play well in Baghdad. Marcia Clark is working for E! and Johnnie Cochran is now an author. Nancy Grace can't prosecute from Larry King's chair and the famed Michael Tigar probably has more important things to do with his time than represent a former dictator. Meanwhile, O.J. Simpson judge Lance Ito, understandably, is laying low; Timothy McVeigh judge Richard Matsch is in semi-retirement; and Judge Judy has a television show to star in.
So who is going to represent Saddam Hussein, aside from the Jordanian lawyers who were asked Monday by their bar association to help defend the "leader of a liberation movement against occupation"? Who is going to preside over his looming trial? And what is that trial likely to look like?
Beats me. The decision on how and when to try Saddam, when it finally is made, will be as much about politics and diplomacy as it is about the law. And it will be as much about international law as it is about American law or the nascent concept of Iraqi law.
Right now, clearly, there is a great jurisdictional tug-of-war over the prize: which body in which nation under which law gets to prosecute and convict the former leader. And over Saddam's ultimate fate: whether he lives or dies once he is convicted. But that's just about process. If you are interested in substance only, and if you want to lay odds, book a hotel room in Baghdad for a 2004 trial, don't worry about airfare to The Hague and take the "under" on Saddam's life. As confusing as the legal situation is right now, and as long as it looks like it will take to sort out, it seems inconceivable that Saddam ultimately won't be tried, convicted and then executed in Iraq by Iraqis under whichever law is decided upon.
It won't be easy, though. It's not as though Iraq has a few hundred years of relevant legal precedent to rely upon in determining how to go about giving Saddam a fair trial. In fact, just last week some of the country's leaders put in place a tribunal process designed to try Iraqis accused of committing war crimes, genocide and crimes against humanity. Now, it would be entirely fitting if Saddam himself were the first person tried under these new rules and there are plenty of charges against him based upon his actions inside Iraq. Complaining witnesses would include the Kurds, who were gassed under Saddam's orders, and the thousands, or perhaps millions, of Iraqi families whose loved ones were murdered during his reign. Exhibit A would be the mass graves. The verdict almost certainly would be death.
But there is international law to consider, too. Already boosters of international law, like the group Human Rights Watch, are expressing worry that Iraq's justice system simply isn't up to the task of trying Saddam after decades of inactivity during his reign. There is some merit to this argument. You don't crank up a justice system that has been dormant for so long and expect its working parts – the men and women who ultimately would be responsible for dispensing justice – to immediately meet the challenge of the trial of the century. Some of the folks who hold this view are suggesting a trial in Iraq under international law (and, presumably, under the auspices of international law judges and attorneys). This is the hybrid model of justice for Saddam, an internationalized Iraqi trial, otherwise known as Option B. The verdict after such a trial, again, certainly would be guilty as charged. But Saddam's ultimate fate might be a little more ambiguous. International law and the death penalty go together like French companies and Iraqi reconstruction contracts.
Then there is the pure international law solution, Option C, which has the least likely chance of getting approved by all the relevant players. Saddam's long list of crimes isn't limited to his countrymen and countrywomen. Iran wants him on trial on charges that he gassed Iranians during the war between the two countries back in the 1980s. Israel wants to try Saddam for the missile attacks against its citizens during the Persian Gulf War. And the Kuwaitis are chomping at the bit, too, knowing that it wouldn't be terribly hard to prove that Saddam's troops committed atrocities during the Iraqi invasion of Kuwait in 1990. Each of these countries has a tenable jurisdictional claim to trying Saddam, though none necessarily has a claim to go first, especially before a trial in Iraq.
Maybe the easiest way to think about the international law part of the puzzle is to think of Saddam like you do the two sniper suspects here in America. Lee Malvo and John Muhammad are facing a long list of trials, the jurisdictions of which are stacked in line like flights at La Guardia. And if you think of Saddam's legal future this way, you could do worse than thinking of President Bush as you would Attorney General John Ashcroft. In the sniper cases, Ashcroft made the call and allowed Virginia to try the men first because the chances of prosecutorial success were best in the Commonwealth. President Bush is almost certain to play that same role with respect to Saddam. Because he can, politically and militarily, the president almost certainly will ensure that Saddam gets tried and convicted and executed in the most efficient way possible. Winners talk and losers walk.
So here is my best guess. After being treated like a prisoner of war under the Geneva Convention, and after his intelligence value is completely exhausted, Saddam will be tried in Iraq, under Iraqi law, by Iraqi lawyers and judges aided by their American counterparts. The death penalty will be on the table and shortly after Saddam is convicted, perhaps after a brief appeal, he will be executed – in public. Iran, Kuwait, Israel and other countries hoping for their own Saddam trials will have to console themselves with the notion that they were spared the time and money and effort such a trial would expend. And the international community will have to be satisfied with the fact that Saddam got far more justice than he meted out during his reign. We won't see a 21st century version of the Nuremburg trial and we won't see a Milosovic trial. We won't hear Saddam political rants from the dock and we won't know until he's dead whether he becomes a martyr to the Arab world or just another bad chapter in its history.