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.

Comments

[JackD]

Once again, it appears that your complaint is that they should just get on with the hanging and ignore these gnats buzzing about due process. After all, what due process did Hussein give anyone? Did I get that right?

[ericposner]

actually, I'm more interested in understanding the incentives of the judges (especially) and those of the other people involved in the trial.

[JackD]

And if you come to an understading about that, will that advance knowledge in any meaningful way?

[Exeter]

Mr Posner says "Iraqis are divided about Saddam himself,"

The Kurds are surely not divided about Saddam - that's 20% of the population. Shiites are not terribly divided about Saddam - that's 60% of the population...

80% of the population is almost certainly in favor of the hanging of Saddam. I would suggest that the remaining Sunni 20% is the only segment really "divided" about Saddam in any meaningful way. Most of the Iraqi bloggers tell stories of people sitting around TV sets during the trial, shouting insults at him, urging them to hurry up and hang Saddam.

Posner says: "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."

You seem to have too little respect for the Iraqi people. They are not so gullible as to fall for Saddam's baloney. They are not so fervently religious as to ignore reality. They know Saddam is a BS'er from way back. The notion that they are all going "you know, Saddam is right! He murdered my father, and killed my uncle and tortured my cousin, but by Golly, He's an Iraqi so Down, Down, America!" sells them short. With all due respect, this talk of Saddam as unifying figure is nonsense -

I would suggest reading less of the New York Times. It ceased to be an authoritative source of information about Iraq long ago.

[joe m.]

Though I don't really want to get into this fight and don't believe it relates to the question at hand, I do want defend professor Posner on this issue. I am Iraqi Christian living in the USA, I still have family in Iraq and did visit Iraq over the last couple years. While there, I interacted with a wide range of people, including Shia and Sunni (though not Kurds). While I have not been there when the trial was on TV, my experience confirms professor Posner's view that Iraqis are divided. I know very few people who do not consider Saddam a criminal, and almost every Iraqi i know wants to see him killed (including the Iraqis i know in the USA),but he is oddly respected by most people I know as well (I don't know how to explain this, because it is strange how he can both be hated and respected as he is. One quick example is that the scorn that people in my family put on him for not fighting when he was captured (being captured alive) was very harsh, far more then I expected, asking why he was such a coward... Yet, though he is an obvious criminal, there is still admiration coming from my friends and family when he uses the trial to attack the USA, with people asking how he has the guts to stand up to the pressure). Also, I know of almost no one who supports the USA, even though they are obviously against Saddam and want things to be better in the country.

Again, I will say that I am not in touch with the Kurdish population at all, and this is hardly a random sample (being that it is based on my friends and family), but also, this includes people from both pro-war and anti-war camps before the war started, and I have met no one who is uninterested in what he says now.

I think your mistake is that you seem to be confusing people's views of how society was harmed while he was president (or their family, if someone was harmed from their family), their views on him as a strong leader, how he is often seen now as the opposite of the USA, and a bunch of other things that i am not even sure about myself.