Saddam’s trial will begin next week, according to news reports, and will even be televised. I will, from time to time, post comments on this trial, as it unfolds. In an op-ed published two weeks ago, I argued that one danger posed by the trial is that if the judges interpret the law broadly, former Baathists, and those complicit in their crimes, will fear that they will be arrested next, and will therefore be driven into the arms of the insurgents (or more deeply into their arms, as the case may be). The decision about who to punish and who to amnesty is really a political, not a legal, decision, and the court should act cautiously by applying the law as narrowly as possible, since it seems likely that any successful constitutional settlement will not involve the eventual incarceration of a large number of Baathists.
Today, I want to discuss Saddam’s strategy. We don’t know what Saddam wants to accomplish: does he want to be a hero or martyr? Does he want to justify his reign? Does he hope to stir up such chaos in Iraq so that America will leave and he will be released? Does he think that he can persuade the judges to declare his innocence? We don’t know the answers to these questions, but it is nonetheless useful to describe Saddam’s two main options – options that are faced by every defendant in a political trial, whether a national leader or a local anarchist. (I discuss these issues in more detail in an academic paper.)
The main decision faced by a defendant such as Saddam is whether to cooperate with the tribunal or to refuse to cooperate. Each approach has advantages and disadvantages.