Putting Saddam on Trial

President Bush said that he would bring the evil ones to justice. This is now coming to pass with Saddam Hussein, who apparently will be tried in Iraq. His trial will raise a number of legal issues, of course, but it will also inevitably raise lots of political issues.

Consider the decision of where to try Saddam. The choice was Iraq or some international venue such as The Hague. To retain the option of putting Saddam to death one would choose Iraq, since the international court does not impose the ultimate penalty. Additionally, it might do the Iraqis and the cause of self-government in Iraq a lot of good to try the former tyrant and punish him. If we want to do this good, and we should, it will be necessary to let the Iraqis run the trial. This argues for giving the Iraqis a free hand.

Turning the trial over to the Iraqis, however, is not without its problems. First, as became clear in Eastern Europe after the collapse of Soviet influence, those who live under tyranny can not easily avoid cooperation with the tyrants. We can only imagine how difficult it must have been to resist without compromise the brutal power of Saddam’s regime. How many of those Iraqis now in positions of authority in the country can say that they never gave information to Saddam’s thugs or cooperated with his regime? Not even those who escaped and lived outside Iraq and have now returned might have completely escaped Saddam’s power. Did they not have relatives still living in Iraq? How many of them were coerced into giving information on the external opposition to Saddam’s intelligence agents? Saddam had a good record of infiltrating the overseas opposition. Would the evidence of such cooperation not emerge during Saddam’s trial? Would his lawyers not try to use such information? If the Iraqis run the trial, will they allow all of this to come out? How much will be hidden?

The Iraqis might have other motives to tailor the evidence about Saddam. The evidence we have collected and other evidence that might come out in the trial could well reveal cooperation between Saddam and neighboring countries. Will the Iraqis want this to be known? They must live in their rough neighborhood and may well prefer to keep certain past dealings hidden in order to maintain some semblance of friendly relations with their neighbors.

Would it be so bad if some things remained hidden? Certainly, a small portion of his crimes should be enough to convict Saddam. Yet recent experience suggests that following the fall of tyrannical regimes it is better that as much come to light as possible. Such wrenching enterprises as the Truth and Reconciliation Commission in South Africa, which revealed the terrors of apartheid, seem to have helped create the possibility for a more decent politics. If such catharsis is possible, Iraq is in desperate need of it.

But if there is concern that the light of impartial justice might not shine everywhere it should if the Iraqis run the trial, should we exert influence openly or secretly? To do so openly would undermine Iraqi self-government. To do so secretly would be impossible. Some political factions involved in the governing council in Iraq are sufficiently wary of our influence that they would certainly do their best to make public our hidden hand in the proceedings. Such revelations would more certainly undermine both our credibility and emerging Iraqi self-government than would our overt control of the trial.

Despite the difficulties of exerting control over the trial, we might be tempted to try, for our own hands are not clean with regard to Saddam. Certainly, Saddam’s lawyers will point out that the government most responsible for bringing Saddam to trial, the government of the United States, looked favorably on him during the 1980s, when Iraq was fighting Iran. Not only did we apparently share intelligence with Iraq during the war, we also removed Iraq from the list of states that sponsored terrorism, apparently because inclusion on the list would have prevented certain kinds of cooperation with Iraq that we thought necessary to insure that Iran did not win. How could Saddam’s defense fail to use the fact that we denied Saddam was a supporter of terrorism when it suited us and claimed he was when that suited us? Will that not embarrass the United States, while undermining the gravity of the charge that Saddam was a supporter of terrorism?

Another reason we might want to exert influence over Saddam’s trial or at least maintain control of some of the documentary evidence that we have gathered in Iraq is that it might give us leverage with the Europeans. Many have speculated that we are likely to uncover or may have already uncovered documents that establish various sorts of unsavory cooperation between Saddam and European governments or politicians. If this cooperation did take place, what must be in the minds of the European heads of state that former Secretary of State James Baker is meeting this week to discuss forgiving Iraq’s debt? If they are worried about what we have discovered or might discover, we will want to keep them worried and, therefore, more inclined to see the reasonableness of our position, for as long as possible.

Such are the politics of putting Saddam on trial that we might want to reinterpret the image of justice as a blindfolded goddess. Usually, this is taken to mean that justice is impartial. In the case of Saddam, it may mean that the goddess does not care to observe what is done in her name.

David Tucker is a Member of the Board of Advisors at the Ashbrook Center for Public Affairs at Ashland University and an Associate Professor of Defense Analysis at the Naval Postgraduate School. He is the author of Skirmishes at the Edge of Empire: The United States and International Terrorism. The views expressed here are his own and do not reflect the position of the Naval Postgraduate School, Navy Department, or Department of Defense.