No Due Process For A Despot

Ilana Mercer, January 5, 2007

Remember the joke that circulated around the time the Iraqis, or rather their American sponsors, were writing their constitution? Someone smart suggested we give them ours, since we don’t use it that often. Evidently the Iraqis don’t have much use for their brand new, American-style constitution either.


I’m not speaking of the vulgar cellphone images circulating on the Internet, in which a stoic Saddam, noose about his neck, is heckled by a hooded Shiite executioner. As repugnant as it was, the hasty hanging was far less offensive—and certainly not illegal—than the legal proceedings that preceded it.


Saddam’s trial did not even qualify as a show trial. Justice coming out of terror-riddled Iraq better resembles the Reign of Terror during the French Revolution (or Mike Nifong’s in Durham County). Masquerading as a court of law, the Iraqi, US-sponsored, Tribunal is more like the French Revolutionary Assembly, meting justice by popular demand.


The Iraqis have something that resembles the Sixth Amendment. As the Law Library of Congress states on its website, “Article 19 of Iraqi Law Number 10 of 2005 sets out the rights of the accused.” However, Saddam Hussein enjoyed a “speedy and public trial,” only if being brought to trial two years after capture is speedy.


The trial was public only in the sense that we knew it was underway. At the time, Paula Zahn was too busy reporting on her latest colonoscopy to dispatch a legal analyst to publicize the proceedings. For different reasons, Zahn’s cable cohort had confined their coverage to badmouthing former Attorney General Ramsey Clark. In the spirit of true American justice, Clark had volunteered to provide due process for the despot. But to the TV talkers, merely being on Saddam’s dwindling defense team—attorneys were being eliminated like crazy—was the same as “supporting” him.


Under Iraqi law, modeled upon ours, the accused had the right “to be immediately informed of the substance, details, nature and reasons of the charges,” as was he “to be given time and assistance sufficient to permit him to prepare a defense.” But Saddam was formally charged scandalously late in the day. In fact, Hussein’s surviving attorneys had to request time to study the charges against their client during the trial.  


Iraqi Article 19 enunciates the right of the accused to confront the witnesses against him. Would that the Iraqis on the stand were merely swaddled in traditional garb. Those not too frightened to testify were hidden behind screens, out of the defense’s reach, their voices modulated.


Prior to Bush’s invasion of Iraq, I didn’t give a tinker’s toss what Iraqis did with Saddam. He was their baggage. It’s a different matter now that the burlesque of justice he received is branded “made-in-America”; it’s a Mark of Cain on us all.


As to the execution, Americans might not have called out, “Dead man walking,” but our officials promptly handed Hussein over to the Iraqis at an execution bloc in the Kadhimiya district of northern Baghdad. However, once the execution turned out not to be a political box-office success, American officials began twisting into pretzels to demonstrate they tried to forestall it. The same officials now claim they attempted to alert the Iraqis to the fact that the execution contravened clauses in their own constitution.


In particular, the belated, alleged concern was over the flouting of “a constitutional provision requiring Iraq’s three-man presidency council to affirm all executions before they are carried out,” reports John Burns of the Times. The other two council members—one of whom was Jalal Talabani, an opponent of the death penalty—would have likely declined to sign the order. Alas, as our “unnamed officials” tell it, Prime Minister Nuri Kamal al-Maliki refused to postpone the execution.


Methinks someone protests too much, and it’s not the Iraqis. Why should they? True, Saddam was denied due process. But his disadvantaged lawyers had exhausted the appeal process and his sentence complied with Article 27 of Iraqi Law Number 10 of 2005. It states that, “No authority, including the President of the Republic, has the right to grant clemency or reduce the sentence pronounced by the Tribunal. Any such sentences should be carried out within thirty days from the date the appellate process has been exhausted.” Protestations aside, American officials must have known this.


Here’s what’s probably afoot: Saddam was executed after his first criminal trial, the al-Dujail case, which was relatively insubstantial. Future prosecution was planned. This would have exposed Hussein’s use of poison gas against the Iranians; chemical weapons on Halabjah, possible genocide against the Marsh and Shi’a Arabs of southern Iraq, as well as against Iraqi Kurds in northern Iraq. Such prosecution would have provided an important historical record for Iraqis.


And for Americans. Cluster bombs, missile components, chemical and biological precursors, pesticides and poisonous compounds, deadly biological viruses, such as anthrax and bubonic plague, intelligence, and billions of dollars of credit—you name them, we supplied them to Saddam. Future trials would have recorded for posterity how the US succored Saddam at his most monstrous. Hence the hasty hanging.



© 2007 By Ilana Mercer

    January 5

CATEGORIES: Foreign Policy, Iraq, Justice, Law

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