Human Rights Watch lists the following concerns about the fairness of Saddam Hussein’s trial:
• No requirement to prove guilt beyond reasonable doubt.
• Inadequate protections for the accused to mount a defense on conditions equal to those enjoyed by the prosecution.
• Disputes among Iraqi political factions over control of the court, jeopardizing its appearance of impartiality.
• A draconian requirement that prohibits commutation of death sentences by any Iraqi official, including the president, and compels execution of the defendant within 30 days of a final judgment.
Trenchant criticisms of this argument and related fairness concerns can be found here and here. But although these authors cast doubt on HRW’s particular claims, they do not refute the underlying concern that animates these claims. This concern, expressed as a question, is, What does fairness require? Why might we think it necessary for Saddam to have a lawyer, or an opportunity to testify, but not, say, to have a jury of his peers?
The lawyer's instinct is to insist that Saddam receive the same process that an ordinary criminal defendant would received in an advanced liberal democracy. But why should we think that procedures of ordinary criminal trials have any relevance to this one?
One cannot make headway with the question of what fairness requires without understanding the function of procedural protections in criminal trials. For domestic criminal trials, procedural protections have a simple function: to minimize the likelihood that innocent people will be sent to jail. Of course, innocent people are sent to jail from time to time anyway, and the reason is that the amount of process that would be necessary to reduce the probability of wrongful conviction to zero would be infinite, and thus infinitely expensive. Judicial systems trade off this cost and the cost of wrongful conviction. Fairness thus does not require a uniform system of procedures, applicable everywhere. Indeed, that is why procedures vary across contexts – they are limited or compromised, for example, in trials of soldiers, enemy combatants, ordinary civilians in territories subject to military rule (as in the Civil War and World War II), spies (who might be denied access to classified evidence), political defendants (impeachment), and so forth. In all these cases, what counts as fair depends on varying logistical, administrative, and security needs. When conventional procedural protections would ensure that highly dangerous people go free under conditions of fragile security, the standard of proof is lowered, independent lawyers are prohibited, access to evidence is reduced, and the other conventional protections are similarly compromised. (A more familiar example is the practice of allowing exceptions to the warrant requirement when the police are in hot pursuit and in similar circumstances.)
Saddam is not an ordinary criminal defendant, and so there is no reason to think that fairness requires that he enjoy ordinary criminal defense protections. Indeed, there is a respectable argument that he deserves none at all. If the function of criminal procedural protections is to prevent the wrongful conviction of innocent people, then there is no reason to apply them to Saddam, because we know that he is not innocent, and indeed that he deserves the harshest punishment that the criminal justice system metes out, whether that is death or life imprisonment. (This argument does not necessarily apply to his various codefendants, however.)
The argument for granting Saddam “fair” procedure is a political argument. The argument is that, whatever we might think about Saddam, many people in Iraq (and elsewhere) believe that (1) Saddam did not commit the crimes that he is accused of; (2) he did but that he should not be punished because he had reasons of state; (3) the U.S. and other nations were complicit in Saddam’s crimes; or (4) some possibly inconsistent combination of (1), (2), and (3). It would be a good thing if these people were convinced that (1), (2), and (3) are wrong. (I put aside the question whether (3) is in fact wrong.) The minds of these people will not be changed if they believe that the trial is not “fair.”
But “fairness” here is not about protecting Saddam from wrongful conviction. It is about ensuring that the message that the trial sends is credible. The reason for allowing Saddam or his lawyer to conduct cross-examination, for example, is that otherwise people might disbelieve testimony about his crimes that is in fact truthful. Note that the standard of proof, which is criticized by HRW, really doesn’t matter. The judges will and should convict Saddam, and if they do so under a weaker standard of proof, we nonetheless know that they could have done so using a higher standard of proof – no harm, no foul. It doesn’t matter whether judges or jurors convict Saddam as long as someone convicts him. What matters is that the Iraqi people believe that the conviction was justified by the evidence.
This focus on the credibility of the message sent by the trial, rather than its fairness, may cut in Saddam’s favor as well. In ordinary criminal trials, we don’t permit defendants to justify their crimes by appealing to political morality. For example, a bank robber or his lawyer would not be permitted to seek jury nullification by arguing that his bank robberies were part of a revolutionary plot to overthrow an unjust government. But it is a harder question whether Saddam should be forbidden to argue analogously that his crimes were justified by Iraqi security needs. If he is not permitted to make this argument, viewers might infer that they are not being allowed to hear the whole story, and thus disbelieve or discount the conviction. If he is permitted to make this argument, and the audience does not believe him, then the trial will have accomplished its main purpose. The problem is that if Saddam is permitted to make this argument, he might persuade Iraqis, or many Iraqis, or many crucial Iraqis, that he was better for Iraq than the emerging political system is. And that would have bad consequences indeed.