Should Saddam's Trial Be Fair?

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.

Comments

[anon]

this argument only holds water because you "know" that saddam is guilty. so, a few questions:

1. what do you know he's guilty of?
2. what about lower commanders - do you "know" they're guilty? or does each one get a varying degree of due process - a jury for one, a lawyer for another?
3. with the arguable exception of saddam (and only with respect to particular charges), how do you know what you know before the trial begins?

[JackD]

Once again, you're impatient for the hanging without any concerns for those in the wide wide world who might have believed your government's bullshit about wanting democracy and due process. Youe shouldn't be in the law school. Maybe in divinity? Wait, that's not fair to them.

[joe m]

Dear Professor Posner,

I have been thinking about this for some time now. I am an Iraqi -American who lives in the USA. And many of my family have been hurt by Saddam. I want to see justice done as much as anyone.

I do want to say that I do not disagree with the central point you make, that the justice itself is not requisite on the system by which it is applied. Basically, it is true without much doubt that Saddam has committed many crimes and hurt many people. Even if he has not personally killed (though, I am sure he has), his decisions have lead to the deaths of too many people, he has caused too much suffering not to see him get what he deserves.

But in all honesty, your argument strikes me as problematic for other reasons then how it would deal with specifically Saddam. You probably are a conservative, so my argument might not suit you, but at least hear me out.

Though I know the suffering that the Iraqi people lived under, and hold Saddam responsible for that suffering, I do not feel that is the end of the story. I was against the war not because I was for Saddam, but because I felt like it was an action preformed with a Saddamlike mentality. The way Bush, Cheney, Rumsfeld, and Wolfowitz went about going to war reminded me of something Saddam would do. They did not use reason, they used brute force and violence to achieve their objectives. And they killed nearly as indiscriminately as Saddam has in the past when he would sweep a city for enemies… As much as any military official will argue, they will never be able to convince me that their use of war is any less brutal as that used by Saddam. I do not believe for one single second that they went to war to help the Iraqi people (especially after the news broke this weekend that Saddam was even willing to leave the country to avoid the war: http://www.guardian.co.uk/worldlatest/story/0,1280,-5379027,00.html). Or, after the numbers of people the USA has killed in Iraq (luckily not my family, though obviously many others: http://news.bbc.co.uk/2/hi/middle_east/3962969.stm) with this war, it is hard for me to see justice in the idea of “getting rid of Saddam” either.

In the face of this, my problem with your argument is not one of whether Saddam should be hanged (I am against the death penalty, I mean “hanged” figuratively speaking), but whether it is fair for one butcher to hang another butcher. Honestly, it reminds me of the Soviet show trails where Stalin would sit in judgment of Bukharin for crimes against the State. I want to see Saddam suffer, but I can’t bear the idea of the USA (Bush, Cheney, Rumsfeld…) getting away with its crimes without also facing a trial.

Truth be told, the American people have no idea what life under Saddam was like. And they have no idea what their country has done to Iraq (over the last 25 years). And though his crimes are not justifiable, it is generally safe to argue that the reasons he committed those crimes should bear some weight. For example, if we were to simply tally deaths, the Hiroshima and Nagasaki bombs killed more innocents in a matter of seconds then Saddam did in all his 25 years in power. But one murder is considered justified while the other is inhuman. This I will never believe. But it is accepted by the public in America that these bombs were necessary and that those who dropped them and ordered them dropped are somehow heroes, rather then mass murderers. If it is even conceivably possible that one murder is more justifiable then another, if the arguments of “self-defense” or “national security” or “national interest” or even that of being unable to prevent such atrocities are applicable at all, then they must be universally applicable. I do not deny that Saddam has murdered. On the contrary, I know that he has far more personally then most. But if it is simply a matter of revenge, resulting in a bullshit show trial of Saddam, then it has no use to me. If the goal is simply to see him hanged, then do it without the trial. There is no need whatsoever for the trial if the purpose is simply to extract revenge and kill him.

Further, if we are to believe that it was necessary and in the best interests of humanity that Truman destroyed Japan, or if we are to believe that Bush and gang were truly trying to “liberate” the Iraqi people, the only method we have to determine such a thing is a broad, fair and open trial. For all to see and judge, including those who benefited and those who suffered. To me, Clinton is an epic criminal for forcing a genocidal sanction system on a disarmed country. My cousin was killed by those sanctions. He died from dysentery related to unclean water, because the chemicals needed to treat the water were denied the DISARMED Iraq by the sanctions. This was a criminal act to me, a political decision that caused the deaths of thousands of innocents. Who has the right? Who decides who is a criminal? Saddam is a monster! But he is not alone in that. There are many butchers, many have died, and too many leaders are able to make decisions that cause too much death.

I do not believe in the lie that some death is necessary, that some are “collateral damage” while others are crimes are punishable by death. That “the price is worth it” for some deaths while it is not for others. This is the biggest lie of “Western Civilization,” that it somehow has a moral authority that is different then that of the other tin pot dictators that dot the third world’s political landscape. It is impossible! The type of justification used is not relevant when it is your family member who is liquidated. I don’t care whether Saddam called my uncle a threat or Bush came to liberate, both are criminal acts to those who live through the pain and loss. The only thing I can say is that if we allow some to go free, what gives us the right to hold others in judgment? If some crimes are not punishable because they were done in good faith, why not others? There has been enough blood spilt on this poor earth to convict many. When you say that Saddam’s crimes are obvious and therefore it is unnecessary to have a fair trial, are you saying that the people he murdered were more righteous then those killed by other criminals/leaders? That the blood on Saddam’s hands is less clean then that on Cheney’s? I agree with you that Saddam is a murderer and should be punished, but I am worried by your argument. Please clarify for me.

Like I said at the outset of this rant, I do not believe that the system itself must be just for the outcome to be just. Seen as a discreet event, you are correct when you argue that the way Saddam’s trial is conducted is fairly arbitrary. But I, for one, do not see the Saddam trial to be a discreet event. And this is your essential mistake, the reason I disagree with you and support Human Rights Watch.

Thank you,
Joe

[So-Called "Austin Mayor"]

I really appreciate the way that this blog has provided readers the option to post comments, but the act of allowing comments is rather empty if you never ever address the issues and concerns raised in the comments.

[Louis Proyect]

I wouldn't expect Posner to answer any of his critics here. After all, he is unaccountable to mere mortals who are not on the faculties of places like Yale, Princeton or the U. of Chicago. But when you cut through the legalese bullshit, you find a variant on Alan Dershowitz's apologetics for torture. In this case, Posner raises the possibility that "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." This, of course, is the same argument put forward in defense of keeping people locked up in Guantanamo in perpetuity. But the creeps who make these arguments, like Alberto Gonzalez or Ann Coulter, don't have the nerve to make these arguments on an ostensibly progressive website like opendemocracy.org. That is why it is all the more disgusting. It is Pecksniffian to an extreme degree.

[Eric Posner]

Re anon:

1. Is this a serious question? We know he’s guilty of various human rights atrocities documented by human rights groups and others.
2. I agree, that’s why my argument was limited to Saddam himself.
3. See #2.

Re JackD:

I’m not impatient for hanging, and I don’t know whether my government really cares about democracy and due process.

Re Joe M:

Cheney, Bush, and others are unlikely ever to be tried and punished for violating international crimes. Are you saying that this is a reason for not trying and punishing Saddam; for trying and punishing him but without American participation; or, on the contrary, for trying him in as fair a way as possible? I just can’t tell where your logic takes you.

Re Louis Proyect:

It’s a simple fact that, in this country and liberal democracies, procedural protections are lowered when security concerns so require. The U.S. Supreme Court has always endorsed this view. The hard question is how much procedural protections should be reduced, and in what way, and different countries approach this problem in different ways. (Every European country with a terrorism problem, for example, has reacted with security measures that limit civil liberties.) The contrary view is accepted nowhere, and so it’s no help to say that if we relax this principle, we are indistinguishable from the Soviet Union or Nazi Germany, or that we are committed to torturing people.

[Louis Proyect]

Of course judicial standards are always lowered in liberal countries when "security concerns so require." That's how come you got the Trotskyists thrown in prison in 1942 for speaking out against WWII. That's also how you got the Rosenberg trial which was marked by judicial irregularities of one sort or another. That's also how you get Guantanamo with its permanent imprisonment of people whose crimes are kept secret. And that's the tradition that Posner obviously embraces. Disgusting.

[joe m]

Dear Professor Posner,

Admittedly my point was not completely clear. I apologize for the excess venting.

The point I wish I had made more clearly is that you are able to argue that the fairness of the Saddam trial is not important because you see the Saddam trial as being an isolated event. When you ask whether Saddam’s trial should be fair or not, you seem to do so with intention of punishing Saddam for the crimes which he is obviously guilty of, end of story. And so, my view is that that is simply not a wide enough scope. I muddied my argument with discussion of other atrocities.

To be more clear, my view is that if the goal of the Saddam trial is to simply met out retribution, then I agree with you that it is unnecessary to have a fair trial. But is it simply too narrow an understanding of the importance of this trial to believe that if you kill Saddam, that is it, justice has been served.

My view of “justice” in the case of Saddam is not simply one of convicting the man and sending him off to the gallows. What strikes me about your logic is that it is extremely practical. Arguing that it is basically a waste of time, money and dumb to provide Saddam with a forum where he can rant and cause trouble for years, like the Milosevic has done in The Hague. But even as a matter of being practical, I strongly disagree with you. For example, even today there are conspiracy theories as to who and why JFK was killed. Most American people believe some form of them. In Iraq, Saddam is not as universally hated as Ahmed Chalabi would like you to believe. So, simply as a matter of practical costs, I assume that a quick show trial that does not afford Saddam the chance to mount a full and long defense, and does not bring out all the facts would literally cause more and continued conflict in the country. Continued conflict that would be far more expensive in terms of money and lives then the couple hundred million dollars that would be needed to run a “broad, fair and open trial” as I said before.

My further argument is two fold:
1) Iraq does not have a “justice system” right now. If you allow the most important trial in the country’s history to be run with an obvious and deep unfairness (even if the end result is fair), you run the strong risk of sowing unredeemable mistrust in the entire American enterprise Iraq (and, I do not think people trust the project now, but if it ever stabilizes and gets off the ground, it will have been buried by an unfair trial). At the very least, among the people who still support Saddam. I know the Middle East very well, and I can guarantee you that outside of Iraq, or within, even for people who were hurt by Saddam and want to see him killed, if they are ever in a position to face any kind of trial in Iraq (even for a parking ticket, if there ever is a government to give parking tickets) the very first thing out of their mouths will be that “it is impossible to get a fair trial in this country, why should I trust the Americans, look how they just killed Saddam without letting him speak…” The damage that an unfair trial could do could literally doom the government for 100 years (or until the next popular revolution or coup).

2) It is very important for the country, and my view of “justice,” that he is allowed to voice his views fully and explain why he did the things he has done. I want to know, and I am not alone (for example, my whole family watched alJazeera ten times to see what happened on the first day of the trial, and we hate Saddam. The same was true all over the Arab world). I want to be able to hear what he has to say. I want to see his story come out in full. I want to hear about what he discussed with Bush Sr. and such. I want to see him explain how he was tricked into invading Kuwait, or how Reagan sent him chemical weapons. I want to seem him convicted and punished, but that is simply not enough. The point I was trying to make by arguing about American crimes or that people support the use of the A-bomb was not that I expect to see Bush on trial (though I wish), but that unlike a plea-bargain for lesser charges, you can’t do that with Saddam. It matters to the people too much. You can’t just say, “you killed 300,000 people, but you get 50 years for drunk driving…” It simply will not fly. It is dangerous to even try. And it shows the epic immaturity of the current Iraqi “government” to do that; they are just out for revenge. The only reason they have the gall to try now it is because they are protected by 150,000 American troops. But that will end. If there is any expectation to make Iraq a stable place any time soon, the foundation has to be on a universal belief that the current government is just. You are not going to get a universal belief that it is fair, I know. But you should absolutely not make things worse by being so obviously unfair in the most important event in the history of the country.

So, my point was that you are making a huge mistake when you see the Saddam trial as simply a discreet event. It is far bigger. And those things must be taken into consideration. Again, that is why Human Rights Watch is correct, not because Saddam could win the trial.

Thank you,
Joe

[Eric Posner]

To Joe M:

I don't think we disagree as much as you do. If you reread my last paragraph, you will see that I agree that there is a good argument in favor of letting Saddam make his case. The thrust of my posting was that the notion of a fair trial in domestic law is based on factors that are not necessarily present in Saddam's trial. Indeed, in domestic law we rarely think that a defendant should be allowed to make the sort of political defense you describe (and certain things you want to allow Saddam to argue were forbidden, for example, at Nuremberg). So what might be appropriate for Saddam's trial might be in some ways more generous than what conventional notions of fairness require. What I object to is the view, which I believe HRW holds, that there are universally correct fair rules of procedure that should be applied to all trials regardless of context.

I make no claim to understand how Iraqis, Iraqi exiles, and others in or from the Middle East will understand the trial, and I agree with you that the trial should have lots of procedural protections if it turns out that such a trial is more likely to convince this audience of the virtues of the rule of law. That, however, is a political argument, and if it turns out not to be true, then one must take account of that possibility as well.

Eric Posner

[Mattew Sharpe Port Huron, MI]

Saddam's innocent!!!!

[Mattew Sharpe Port Huron, MI]

I'm homo sexual and i'm proud of it!

[Joan A. Conway]

I am sort of laughing at the constipation of this post, should I be?

[Olga]

Take care of it and keep it on the road!

[Solicitors Claims]

Saddam should have obviously had a fair trial as he did..