The November 28 hearing
A few comments about the hearing last Monday.
1. The Iraqi government is pressuring the Iraqi Special tribunal to speed up proceedings. The press treats this as a case of politics illegitimately attempting to influence the course of justice. Maybe so, but the opposite inference is equally plausible. It may be that, given politics in Iraq, the tribunal is proceeding too slowly because the Iraqi judges are afraid of offending foreign opinion or simply because they place too much weight on the technical requirements of their job. If a constitutional settlement must await the outcome of the trial, then the longer that the trial continues, the more people will die in the insurgency. And as much as the West loves legal process, the Iraqi public might have trouble understanding why such a simple case should take such a long time to resolve and wonder whether they really want to cast their lot with Western style legalism.
2. Note also that the defense strategy is to reduce the proceedings to a crawl. This is clear both from the defense lawyers’ arguments in court and their statements outside of court. They have everything to gain from delay and nothing to lose. Saddam has little power today, but he and his defense team are obviously hoping that if the political atmosphere changes, a deal can be made. And the political atmosphere does seem to be changing, as pressure builds for U.S. forces to leave Iraq. Saddam is probably hoping that his trial will outlast the American presence, and that once the Americans are gone, the Shiites and Kurds might be willing to spare him in order to buy peace. This is a slim hope: the Americans would probably not release Saddam to the Iraqi government and, even if they did, the Iraqi government would probably not be able to use him as a chit in a deal given overwhelming popular support for Saddam’s execution. Still, a slim hope is better than none at all. Again, we see why the Iraqi government wants the tribunal to hurry; the slower the trial, the greater the government’s political problems.
3. Saddam Hussein sensibly continues to challenge the tribunal’s authority, and shrewdly uses every opportunity to draw attention to American influence over the tribunal. Monday, for example, he complained about the foreign guards, and tried to contrast his own defiance with the judge’s meek acquiescence in their presence. Iraqis are divided about Saddam himself, but they can agree with him every time he complains or implies that the American presence in Iraq sullies the honor of Iraqis and their religious values. These confrontations will enhance Saddam’s standing among Iraqis as the only publicly and continuously visible Iraqi who defies the Americans.
4. Saddam’s lawyer, Abdel Haq Alani, apparently plans to argue that Saddam did not directly order the killings at Dujail but merely signed the death warrants of people found guilty under Iraqi law. How can Saddam’s team make this argument at the same time that they argue that the tribunal is illegitimate? Lawyers are accustomed to arguing in the alternative, but won’t each claim undercut the other in the public’s mind? The answer is that Saddam must keep in mind two audiences: those who support him as a symbol of resistance to an occupying power and those who waver, not sure whether he is guilty of all the crimes that have been attributed to him. The former want to see Saddam defy the tribunal, the latter want to see whether Saddam can defend himself against the charges. Saddam’s strategy is to give each group a little of what it wants rather than giving one group everything it wants. Correlatively, the tribunal gains stature to the extent that Saddam implicitly recognizes its authority, and the more that it bends to his wishes on procedural matters, the more it can expect continued recognition from Saddam in return. Who loses if both Saddam and the tribunal gain by cooperating with each other? The Iraqi government, which is probably why it is impatiently urging the tribunal to hurry up.