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Powell's No Prosecutor

Attorney Andrew Cohen analyzes legal issues for CBS News and
Don't think for a second that Secretary of State Colin Powell brings with him to the United Nations the same burdens of proof and persuasion that a prosecutor brings to court. It's true that Secretary Powell will lay on the Security Counsel table America's case against Iraq over the issue of weapons of mass destruction. But that case is a political, diplomatic, military or even psychological one. It is by no means a legal one.

So pay no attention to those silly stories you might have glanced at over the past few days, the ones in which legal experts have opined about the strength of the government's evidence against Saddam Hussein using domestic American law as the parameter. Those evaluations aren't worth the computer paper they were generated on. Holding Secretary Powell to a prosecutor's standard is like timing a racehorse at a NASCAR event. At least apples and oranges are both fruit.

Forget, then, about the "reasonable doubt" standard or the "clear and convincing" test or the need for Secretary Powell even to prove the US case by a mere "preponderance of the evidence." Forget about hearsay or circumstantial evidence, for that matter, and all the other substantive and procedural rules we all get familiar with from time to time when a domestic case captures our fancy. They simply don't apply. The United Nations doesn't run by constitutional mandate and the Security Counsel itself isn't exactly a jury of anyone's peers.

Actually, the notion of a jury is a good way to begin to explain how and why Secretary Powell's task Wednesday is different than a prosecutor's task might be during closing argument. Imagine a jury where every single juror's own biases, prejudices, perspectives and agenda is encouraged instead of discouraged and you begin to understand what kind of listeners the Secretary of State will be talking to when he addresses the Security Counsel.

Then imagine those jurors present in a courtroom where there is no judge to preside over matters weighty and small. Wait. Imagine those jurors qua Security Counsel members as judges since that's essentially what they are. And then imagine that there are no appeals built into the process. How'd you like to be a defendant then?

Now that you have some sense of how much a Kangaroo Court the United Nations would be if we were to hold it to the standards of our criminal justice system, it's worth talking about what kind of tactical questions arise when people try to compare Secretary Powell's mission to one of a lawyer. First, imagine a closing argument that comes before there has been a trial. Makes no sense, right? Of course, right.

But most every fact upon which our government will rely in making its case against Saddam Hussein has never been tested in the fire of a legal contest. No cross-examination. No chain-of-custody. And when the Iraqis offer their "rebuttal," as they surely will in the coming days, it, too, will be a summation without a beginning, a closing argument without a trial.

This legal disconnect doesn't mean that America has her facts wrong or that we cannot prove a convincing case against Hussein and his regime. Nor does it mean that the Iraqis might not have some compelling points of their own to make. It just means that there is no agreed-upon notion of what has and has not been- or what can and cannot be-- proven to the biased, self-motivated, political "jurors" we call Security Counsel members. And please don't tell me that UN Resolution 1441 or its predecessors or successors represent the factual findings upon which the American "case" rests. As near as I can tell, none of those Resolutions would hold up in court.

So the structure of the Security Counsel is hardly "legal" and neither is the format through which the Secretary will make his remarks. What's left? The substance of the law. If we are to turn the United Nations into a court and the Security Counsel chamber into a courtroom we have to have some substantive law to apply.

Never mind that we already have international courts that fumble with this problem on a regular basis, or that international law itself almost always stumbles over the practical problem of which country gets to enforce it, what standards of proof and persuasion should Powell be held to? America's standards? Or Iraq's? Or perhaps some ginned-up standard that the international community has agreed to, except when it applies to certain countries that aren't crazy about it?

I know this is hard for people to understand in an age where lawyers seem to be everywhere and where every dispute seems ultimately to end up in court. And I know that America's beef with Iraq -- the free world's beef with Iraq --foundationally is rooted in reasonable and necessary international law and norms. But some events just have no legal analogy.

This is one of those events. No matter what the Secretary says, there will be no unanimous verdict in the court of public opinion. No matter what he proves, the other side will say that there is no proof. No matter what the final outcome will be when the Security Counsel decides, this dispute will be resolved on the ground or in some back room somewhere in Baghdad. Those realities alone ought to have dissuaded even the most creative reporters and talk show hosts from trying to tar the Secretary of State with an attorney's brush.

When Secretary Powell talks to his colleagues Wednesday -- when he speaks to an anxious planet -- he'll have to be convincing and persuasive and passionate and logical. He'll have to weave together the facts at his disposal with the analysis that ties it all together. He will have to sense the rhythm of the room and adjust his pace and tempo to match it. But he will have to do all those things as a politician, diplomat and soldier -- not as a lawyer.

By Andrew Cohen