Worldview Commentary No. 252 on Chicago Public Radio, 91.5 FM WBEZ

“Saddam: How Not to Try a Tyrant”

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Few people outside Saddam Hussein’s base among Iraqi Sunnis will mourn the bloody
dictator’s passing. But Americans may come to regret our government’s complicity in
putting him to death after a patently unfair trial. For some observers, we will have
transformed a monster into a martyr. For many more, we will have shredded our already
tattered human rights credibility. Our denunciations of show trials in countries like Cuba
or China may now ring hollow and hypocritical.

Why bother to give a tyrant a fair trial? Quite simply, because that is what our country is
supposed to stand for. The question might as well be turned around: Why not give him a
fair trial? If he indeed committed manifold atrocities, a fair trial would find him guilty.

But that is not what Saddam got. After an eight-month trial, in November he was
convicted and sentenced to death in the first of several cases brought against him: the
killing of 148 men and boys from the Shiite town of Dujail in 1982. An appeals court
upheld his death sentence on December 26 – only one month after defense lawyers
received a copy of the trial judgment. The hangman executed Saddam only four days
later.

President Bush publicly opined that Saddam got a “fair trial.”

Evidently the Commander in Chief did not read the extensive report published in
November by Human Rights Watch, based on observation of the trial and interviews with
judges, prosecutors and defense lawyers. (Disclosure: I am a member of the Chicago
committee of Human Rights Watch.)

The following examples illustrate the unfairness of Saddam’s trial:

1. The court lacked independence. Three presiding judges quit or were fired during
the trial. The first resigned after Iraqi parliamentarians complained that he was
too lenient and demanded his resignation. The second was removed after a
government body accused him of being a former member of Saddam’s political
party (which all judges had to be under Saddam). The third was yanked by the
government, after commenting in court that Saddam was “not a dictator.”

2. Iraqi Prime Minister Nouri al-Maliki publicly announced the result before the
court did. In July he declared that Saddam’s “execution for the crimes he
committed will come soon, just after the court ruling.” Not surprisingly, in this
atmosphere of external pressure, the court complied with his prediction.

3. Three lawyers for the defendants, including one of Saddam’s defense counsel,
were killed during the trial. All defense lawyers filed a detailed motion for
security with the court, but the court never ruled on their motion. The
government offered police protection but failed to pay the policemen, who quit,
leaving Saddam’s lawyer unprotected. The lawyer was then killed.

4. The prosecution gave a file of evidence to the defense before trial, but a third of
the file was illegible. It was also inexplicably missing several hundred pages, not
turned over to the defense until three months after the trial began.

5. No detailed charges against Saddam were made available until seven months into
the trial. And then the prosecution added two new charges, for enforced
disappearance and “other inhumane acts.”

6. The court read the statements of 23 prosecution witnesses into the record without
making them available for cross examination. Thirteen of their statements were
not in the evidence file given to the defense.

7. The prosecution relied on what Human Rights Watch calls “trial by ambush”:
incriminating documents were not disclosed to the defense until the day they were
presented in court.

8. Private defense counsel boycotted the trial in protest. They were replaced by
public defenders who, unlike the judges and prosecutors, received no training in
international criminal law. Their closing statement at trial was written in English
by a foreign adviser, a non-lawyer, and translated into Arabic so that they could
read it.

9. Prosecutors had to prove that Saddam knew that his regime’s trials of the Dujail
victims were a sham. Yet according to Human Rights Watch, “no evidence was
presented from which the intent and state of knowledge of Saddam Hussein could
be discerned or inferred in relation” to those trials.

10. In June the presiding judge suddenly closed the defense case, with no prior notice,
no explanation other than that he had heard enough, and no inquiry into the
relevance and materiality of the remaining witnesses.

Americans cannot escape responsibility by blaming all this on the Iraqis. We wrote the
court’s statute. We trained its judges and prosecutors. We paid for it. Our Embassy in
Baghdad, according to one judge, was in effect the executive office of the court. We held
Saddam in our prison on our military base, until we finally turned him over to the Iraqis
for execution.

And our government may have had its own interests in an early execution. Iraq disclosed
to the United Nations in 2002 that two United States firms provided precursors to
chemical weapons to Iraq in the 1980’s. The next trial of Saddam – indeed it had already
begun – involved his using chemical weapons to kill thousands of Kurds. Defense
lawyers had threatened to present evidence of US complicity in Saddam’s chemical and
biological weapons programs. Now that the dictator is dead, that evidence may become
irrelevant.

The botched trial of Saddam cannot be undone. But other cases continue in Iraq. Our
government should not be party to any further executions based on trials that fail to meet
minimum international standards.


Doug Cassel’s commentaries are broadcast, usually on Wednesdays, during the noon hour of the
Worldview program on Chicago Public Radio, 91.5 FM. Views expressed are personal views of the
author and not necessarily those of Notre Dame Law School, the Center for Civil and Human Rights
or Chicago Public Radio.