Saddam Hussein: On Trial

The Weekly Standard: Strategies Are Set Before Trial Begins

(Weekly Standard)  Saddam’s legal strategy, as explained to me by a leading member of the defense team – Abdul Haq al-Ani, retained by Saddam’s daughter – is fourfold:

* Argue that the war that overthrew Saddam was illegal under international law and, hence, Saddam is still legally president. If he’s still president and his regime still sovereign, then the Saddam-era Iraqi Constitution--which gives him full immunity – must prevail.
To al-Ani, it is meaningless that millions of Iraqis voted for a new post-Saddam government last January, and that the newly-elected government has been recognized by the U.N. Security Council. “The Security Council does not have the authority to breach the charter that created it,” he told me in his home. And a correct reading of that charter, he says, would interpret as illegal the war that preceded post-Saddam Iraq.
* The second pillar is to argue that the alleged crimes committed by Saddam are no different from President Bush’s response to the September 11 attacks. Responding to insurrection – whether for Saddam in Halabjah or Bush in Afghanistan--had to be swift and overwhelming. If innocents are killed, that’s analogous to Bush’s wars, too, he claims. Of course, al-Ani fails to distinguish between accidentally killing civilians in pursuit of terrorists and intentionally targeting innocents to permeate fear in a population.
* The third pillar will be to call Presidents George W. Bush, Bill Clinton, and George H.W. Bush to testify, just as Gen. Wesley Clark was called to testify at the Hague. Defense Secretary Rumsfeld is expected to be singled out, too, as the embodiment of the alleged support that the U.S. gave to Saddam in the 1980s during his use of chemical weapons.
* By airing the dirty laundry of America’s foreign policy over the past several decades, Saddam’s lawyers believe that they will embarrass the Bush administration into abruptly ending the trial and figure out a way to cut a deal with Saddam, which will include returning him to power. Seriously. How likely is this? According to al-Ani, odds are better than 50 percent that it could happen within a year. Yes, he truly believes that Saddam or, as the defense team refers to him, “President Hussein,” could be back running Iraq by this time next year.

As for residual effects in the region, al-Ani believes that many Arabs watching the televised trial may identify with Saddam’s “humiliation,” which could even cause a spike in the insurgency – an increase in violence is anticipated by Commanding General George Casey too.

Interestingly, al-Ani shares the Bush administration’s view of the possible ripple effects of the proceedings: “All these [Arab regional] leaders will hate the day when they, the public, sees Saddam on trial.” When I asked if this was because it could encourage the populations of neighboring dictatorships to question the invincibility of their own leaders, he responded: “Indeed, indeed, that’s part of it.”

It is disappointing that the international community has not rallied more behind the trial. The arguments from the European Union and many NGO’s include opposition to the death penalty, which the Iraqis have decided on their own to reinstate, and concern that Saddam cannot get a fair trial inside Iraq, and that it should instead be held elsewhere, much like the International Tribunal on Rwanda was held in Tanzania. But a sovereign nation should be able to make these decisions and still receive international support for a process that’s crucial to Iraq’s own truth and reconciliation.

Indeed, the Iraqis have the indigenous legal talent to make reasoned decisions on their own. Theirs is a legal tradition going back to the Baghdad and Basra Law Schools that pre-date Saddam. And really all the way back to Hammurabi, too. What’s interesting is that the pre-regime legal institutions were basically left untouched during Saddam’s reign. He instead built extra-judicial institutions, such as the Revolutionary Command Council, rather than corrupt the still-standing judicial system.

As for his own motives, al-Ani told me that even he believes Saddam Hussein is despicable for the illegal imprisonment and torture of innocent Iraqis. So why is he defending him? “Because I’m anti-American. I’m not for Saddam. I’m anti-American. And defending Saddam is the best way I can express it.”
Defending Saddam, of course, is what al-Ani will accuse the U.S. of having done years ago. The question is what conclusions the peoples of the Arab world will draw regarding those who defend him now, and governments who, through their lack of support for the new Iraqi government, side with the insurgents who would gladly return him to power.

Dan Senor was a senior adviser to the Coalition in Iraq when Saddam Hussein was captured.