Monday, February 23, 2009

“Enemy of the State” by Michael A. Newton and Michael P. Scharf – The Trial and Execution of Saddam Hussein

Like most Americans, my awareness was murky, at best, of the chain of events that transpired between the time that Saddam Hussein was disinterred from his “spider hole” to his ignominious execution by hanging. I was vaguely aware that there had been a much-publicized trial that was marred by outbursts from Hussein and his co-defendants. I recall comments by the media that the court was either a puppet of the U.S. occupation force or a “kangaroo court” cobbled together as a fig leaf to cover raw revenge on the part of the dictator’s Iraqi enemies and victims.

Michael A. Newton and Michael P. Scharf have provided an important service in setting the record straight – not only about the trial of Saddam Hussein, but of the steps that led to the establishment of the tribunal that sat in judgment of him. Both authors worked behind the scenes in advising those who set up the Iraqi High Tribunal and guiding the intricate blending together of Iraqi domestic law and international law that governed the trial. Theirs is a straight-forward and illuminating peek inside the proverbial tent that housed the trial and execution of the Iraqi despot.

It became clear to me in reading the authors’ account of the last months of Saddam Hussein’s life, that his trial was not the three-ring circus and rush to judgment that some of the global media have portrayed it to be. Neither was it the flawless exercise of judicial probity and restraint that the new Iraq government and their supporters hoped it could be. The messy truth of how it played itself out is a compelling story and important historical footnote.

Despite the best efforts of U.N. Secretary General, Kofi Annan, to withhold support and counsel to the Iraqi jurists, there were some recognized experts in international law who made themselves available to the Iraqi judges, who under Saddam’s regime had been kept hermetically sealed off from developments in the field of jurisprudence outside of Iraq. There was a need for them to be given a quick remedial course in how to apply international law and judicial practice to the trial of Saddam.

“They knew that they were unprepared for the rigors that lay ahead. Saddam had prevented Iraqi lawyers from traveling abroad to learn the detailed provisions of modern international criminal law. Iraqis were often embarrassed that the regime had kept them from staying abreast of the latest developments of the integrated body of law that had developed since the end of the Gulf War in 1991. The trainers in London were notable experts in the complex body of international law that would need to be used by the Iraqis.

The judges were attentive both in large groups and in the small working groups. This week of training was followed by a mock trial held at Stratford-upon-Avon, as well as more training at the International Institute fro Higher Studies in Criminal Sciences in Siracusa, Italy. The tribunal investigators had a special training session dedicated to their unique needs held in Bornemouth, England. The director of the RCLO [Regime Crimes Liaison Office] at the time, Greg Kehoe, helped to arrange and fund these training events. Kehoe, an American, is a booming man with an imposing presence. He believed that the Iraqis could deliver a fair and independent trial. ‘The whole process is very important for reestablishing the rule of law in Iraq,’ he would say. ‘The trials not only have to be fair, but also have to be seen to be fair. A rush to judgment would do nothing to restore the Iraqis’ faith in the rule of law.’ These aspirations would be put to the test in the Baghdad courtroom almost exactly two years later.” (Page 73)

It became clear to me in reading the account of what happened during the trial that despite the best efforts on the part of the judges and their cohort of international advisors, there were times when the decorum of the courtroom devolved into slapstick comedy and farce. Saddam, taking a page from the trial of Slobodan Milosevic, frequently used the trial as a platform for long rants and dramatic diversions. Milosevic had been allowed to represent himself in his trial, thereby giving him unlimited opportunities to address the court. Saddam was not allowed to represent himself, but under Iraqi law, a defendant is able to address and question witnesses after their testimony and cross-examination has been completed. This loophole is one that Saddam employed throughout the trial to create the very circus atmosphere the judges had hoped to avoid.

The authors spent a considerable amount of time comparing and contrasting the trial of Saddam with the infamous Nuremberg trials that brought to justice leaders of the Third Reich. In this excerpt, they discuss the relationship between Saddam’s trial and execution and the trial and death by suicide of Hermann Goring:

“Incredibly, the flickering images managed to lend an eerie air of dignity to the death of one of the cruelest and most calculating tyrants of his era. Saddam was a cold-blooded murderer whose narcissism dominated a nation. There is no question that the conduct of the executions will always cloud the historic perception fo the fairness and legitimacy on the Iraqi High Tribunal. But the abysmally implemented execution cannot overshadow the Iraqi-led process that riveted the region for over a year. Nuremberg is not judged today based on Goring’s success at frustrating Robert Jackson’s cross-examination or cheating the hangman.” (Pages 214-215)

In drawing a final parallel between Nuremberg and the trial of Saddam for the atrocities committed at Dujail, the authors sound a note of caution about we must – in a post-9/11 world – conduct the war against terror in a way that is consistent with the rule of law:

“In thinking about these questions, it may be helpful to consider the seminal passage form the classic film, in which the judge played by Spencer Tracy delivers the tribunal’s judgment: ‘This trial has shown that under a national crisis, ordinary, even able and extraordinary men can delude themselves into the commission of crimes against humanity. How easily it can happen. There are those in our country too that today speak of the protection of country, of survival. A decision must be made in the life of every nation, at the very moment when the grasp of the enemy is at its throat; then it seems that the only way to survive is to use the means of the enemy, to rest survival on what is expedient, to look the other way. Only the answer to that is – survival as what? A country isn’t a rock; it’s not an extension of one’s self. It’s what it stands for. It’s what it stands for when it standing for something is the most difficult.’

As these stirring words suggest, the legal issues at the core of both the Alstoetter trial and the Dujail trial is relevant to the United States and its allies, which today find themselves in a ‘war on terrorism.’ Where is the line to be drawn between those actions that can be justified by the necessities of such a war and those that are criminal? This may be the most important legal question of our generation.” (Pages 215-216)

By pointing out the very practical ramifications of the decisions that will need to continue to be made – in Iraq and at home in the U.S. – to combat ongoing threats of terrorism, the authors added a much-needed cautionary voice. This book is a worthwhile read for anyone who is willing to wrestle with the complexities of what it has meant and continues to mean for the U.S. to involve itself with regime change in Iraq.

1 comment:

Anonymous said...

the website for the book is at -- contains excerpts, available reviews, some pictures, bios of the authors, and a number of interviews with the authors.