Trying the Tyrant: Saddam’s New Legal Right

Robert Alt

June 30, 2004

Baghdad, Iraq—Today the new Iraqi government will assume legal custody of Saddam Hussein. Tomorrow, Saddam and 11 of his cronies, reported to include Ali Hassan al-Majid, the notorious “Chemical Ali”, will be brought before an Iraqi investigative judge to be charged with crimes against humanity, genocide, and war crimes. And so, the legal process for Saddam, which promises to be one part Nuremberg, one part CourtTV, begins.

As the trial approaches, international attention will focus on the evidence which will be presented at trial—evidence of the atrocities committed by the tyrant. As for me, I have seen the results of Saddam’s handiwork, and have heard from many of his victims during my time in Iraq. I have spent time in village after village, which serve as living testaments to the theft committed by Saddam. The people eked out their existence in mud huts with poor sanitation, insufficient water, and poor electricity, while Saddam and his family lived in opulent palaces—at least one of which was built with Oil-for-Food money. I have spoken to men who knew firsthand of the torture of Saddam’s prisons. I met men like Ala’a Abdul Hussien Hassan, who was maimed in Abu Ghraib.

Saddam’s abuse was not reserved for the commoner, as I learned when I met a former Justice of the Iraqi Supreme Court who was tortured for months for the offense of having a British relative. I have walked through the remnants of a Kurdish village once containing 480 homes, which were reduced to rubble by Saddam’s attack helicopters and bulldozers. When the attacks began, those who could run did; those who could not were buried alive. I have eaten with a peshmerga intelligence officer, who recalled the day when the Kurdish leaders in the region south of Kirkuk were called to a special meeting called by Chemical Ali—a meeting from which none of the participants ever returned. And yes, I have spoken to those who know a thing or two about weapons of mass destruction, having witnessed the deadly effects of Saddam’s poison gas on thousands of their family and friends. Finally, I have seen hills covered with myriad graves—hills which reach out to the heavens to provide witness to God and man of the violence which once consumed the valleys below.

To respond to the voluminous evidence which will be brought against the former dictator, Saddam is reported to have retained the services of no less than 1,500 attorneys. It is truly amazing how much counsel Oil-for-Food kickbacks can buy. The attorneys will of course use every argument at their disposal, but one line of argument is already taking shape. Ziad al-Khasawneh, one of Saddam’s harem of lawyers, told AP that the United States has no legal basis to keep prisoners, including Saddam, now that it has transferred authority to an interim Iraqi government. This argument would appear to be largely moot after today’s transfer of legal custody, but that was before Monday’s Gitmo decision by the United States Supreme Court. As I explained here, the Supreme Court established a new rule which permits anyone in the custody of the United States to seek a writ of habeas corpus in U.S. federal court. While the decision does not parse the line between legal and physical custody, a claim filed on the basis of physical custody is certainly within the corners of the Court’s reasoning.

The decision sets the stage for a media circus. First, under the Court’s decision, Saddam would get to choose which of the 94 federal judicial districts in the United States he would like to hear his claim. His counsel can take the time to find a district court judge with views in the mold of, say, Second Circuit Court of Appeals Judge Guido Calabresi, who compared President Bush’s rise to office and exercise of Executive Power to Il Duce in a recent speech. (He later apologized, stating that he did not mean for his statements to be taken in a partisan way. How could anyone get that impression?)

Once Saddam finds a preferred judicial district, the real fun begins. First, the man who ran torture rooms without a hint of irony will inevitably file papers complaining of the conditions of his detention. Next, Saddam’s lawyers will likely argue that because the U.S. has not charged him with any crime, there is no basis for U.S. detention. And finally in the coup de grace: the lawyers will undoubtedly attempt to challenge the detention as derivative of on an unlawful seizure—that is, they will claim that the United States was not legally justified in removing the sovereign. It is foreseeable that they would attempt to subpoena virtually every major player in the administration, and that they will make claims which will lead people to wonder whether Michael Moore is acting as a litigation consultant. Will these tactics work? Almost certainly not, for even a partisan judge should be able to see through these ultimately meritless claims. But the media will lap up every minute of it. You can picture the headlines now: “Saddam seeks testimony of Condi Rice;” “Saddam Says ’Bush Lied’,” and “Saddam Says: ’No Terrorist Connection.’”

Saddam’s lawyers will know that they are not likely to succeed, but they will also know that they can use this newly permitted legal tool to launch a PR attack on the administration that deposed their client and put him behind bars. For Saddam, whose response to the Gulf War was to seek to assassinate George H. W. Bush, this chance at some measure of political revenge will be irresistible, if to his mind insufficient. Over fifty years ago, the Supreme Court recognized that allowing enemies held outside the United States to seek habeas review in federal courts would give comfort to the enemy and would unduly distract the Executive Branch from its essential military functions. The decision was correct then, and Saddam’s petition may establish that it is correct now as well.

Robert D. Alt is a Fellow in Legal and International Affairs at The John M. Ashbrook Center for Public Affairs at Ashland University currently reporting from Iraq. You can follow his daily progress at No Left Turns.