SADDAM’S TRIAL: CAN HE BE CONVICTED?

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By WILLIAM FISHER

Most of the discussion about Saddam Hussein’s trial has focused on where, by whom, how soon, and by what kind of court he should be tried. These are serious issues that need to be addressed. But there is a far more complex question that few are addressing: can he be convicted?

The reason is that there may be no ‘smoking gun’ that ties Saddam directly to either crimes against humanity or to genocide. And if there is no smoking gun, the reason is probably the system of ‘delegation’ that Hussein used to carry out his alleged crimes. In short, he used others to do his dirty work, and there may well be no paper trail that leads back to Saddam’s signature on a piece of paper, or witnesses to an order who are willing to come forward to offer testimony.

The other way of approaching the issue of guilt is known as ‘command responsibility’. This means not only that Saddam may have given general verbal orders, or unspecified authority to his lieutenants, to carry out criminal acts, but importantly that he personally would have to have known the consequences of such orders or authorities. This is never easy to prove in a court of law, and it may be especially difficult to prove because of the Byzantine security system Saddam constructed to distance himself from direct culpability.

The big ‘ifs’ here are based on the assumption that Hussein’s trial will be conducted not as some kind of kangaroo court, but as a professional legal proceding, conducted professionally, by professionals. If it is anything less than that, whatever verdicts are made will not be credible in the international community. More important, while they may exact retribution, they will teach Iraq nothing about how justice must be achieved within a democratic context.

What we know now is that, while the US Government says it has amassed voluminous evidence against Hussein, it is unclear whether this ‘evidence’ will rise to the level of smoking gun or even command responsibility in a credible court of law. We also know that Hussein will have no shortage of lawyers, and that they will challenge every shred of evidence introduced by the prosecution. And we know that, for both sides, preparation of the case against or for Hussein will be a lengthy and complicated process. All this means that, if Hussein’s trial is to have any credibility, it will not begin any time soon. Most legal experts estimate that it may take up to two years.

Another issue that must be addressed is the scope of the prosecution. Those closest to Hussein clearly have blood on their hands and should be tried as expeditiously as possible. But should the trials of Saddam and his lieutenants also include reference to the many from outside Iraq who facilitated his iron grip on power? These players would surely include those, like the United States, Russia, France and many others who, during and after the Iran-Iraq war, were only too willing to provide Iraq with the weapons and know-how to facilitate Saddam’s iron grip on power and repression.

Given these conditions, many legal scholars are suggesting that Iraq’s war crimes trials begin not with Saddam Hussein, but with his key lieutenants – those directly responsible for carrying out the atrocities we all know were committed. It may be in the pragmatic interests of justice to take this bottom-up approach to accountability, if for no other reason than that their guilt may be far easier to prove. And proving their guilt may provide those convicted with major incentives to testify against their former leader.

This approach may well frustrate the US Government, the Provisional Authority, Iraq’s Governing Council, and the millions of Iraqis who were victims of Saddam’s brutality. All these players are hungry for retribution. And well they should be. But it took 35 years for Saddam Hussein to compile the catalog of horrors for which he will eventually be tried. The cause of justice will not be compromised by prosecuting him in the most careful, professional and credible way, even if it takes a little longer.



About the author: William Fisher has managed international development programs for the US State Department and the US Agency for International Development in the Middle East and elsewhere. He served in the international affairs area in the Kennedy Administration and is a former journalist.

WASHINGTON WISH LIST

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By William Fisher

Dear Santa:

Even though we’ve captured The Big Enchilada, my wish list this year is longer than usual. I hope you can find some time to help me out.

I wish I could understand why so many folks have it in for me over Iraq. All I ever wanted to do was to get rid of Saddam and free his people to enjoy their lives the way we do. Now folks are saying we just want to take the oil money and rule the Middle East. That just ain’t so. Heck, we can’t even rule Cincinnati! But I just knew that guy was a real urgent threat to us, and that I couldn’t afford to diddle around with those UN pin-stripers any more. Sure, I had to sell the idea, and I did. Now folks are saying I oversold it. So it would be a big help if we could find some weapons of mass destruction, or a couple of nucular (sic) bombs, or some kind of smoking-gun link to that other guy. I know your reindeer fly just about everywhere, and I’d be grateful for a heads-up if you see anything.

I wish we could find that other guy who’s also giving me heartburn. My people keep telling me different stories about where he is, but just between you and me, I don’t think they really know. You know how important it is that we catch him because of what he did to us, and we can use all the help we can get. Would you see what you can do? I’d sure appreciate it.

I wish we could hightail it out of Afghanistan too. The idea that we somehow swapped Taliban for warlords is really freaking me out. I think folks there don’t really appreciate all we’ve done – just look at kids going to school, women going to work, hospitals open, a new major road just finished, and a whole lot more. That’s not nothing. But folks there still keep shooting at us. Maybe they’d like to see our GIs helping with the poppy harvest!

I wish the Israelis and the Palestinians would start acting like grown-ups. My people and I spent an awful lot of time designing a really good roadmap and we expected both sides to get to work on it right away. It was all there on paper, I sent one of our State Department guys over to see that it got done, and I still can’t understand why the whole thing just blew up. Sharon’s fence building and still more settlements weren’t in my roadmap. Arafat was out of it too. The guy they picked for PM should have just got his men and gone and arrested the bombers and brought them in like trophies. Then maybe we’d have seen some real action from the Israelis. Well, the new guy the PA chose better do a better job.

I wish that folks would spend a little more time listening to what I’ve been saying about democracy. I’ve got the best speechwriters money can buy and I know they got it right. And besides, you and I know that democracy is swell, that we’ve had it for a couple of hundred years now, and that once other folks have it, they can do just about anything they set their minds to, and that anyone who really wants it can have it. It’s a super idea, but it has to be sold. Hell, even our founding fathers had to sell it. These days, a lot of folks are saying I’m over-selling it, trying to force democracy down people’s throats. That’s just plain bull. What I’m doing is just trying to give them a taste of how sweet it is, and I need a lot of help getting folks to listen and believe and understand.

I wish things were more peaceful here at home too. After all, it’s holiday time. But no sooner do we get this new medicare thing signed than I hear folks starting to say I’m giving away their health care money to drug companies and HMOs. The seniors complain about their health costs, younger folks run to the mall with their unemployment checks and then complain we’re not doing enough to get them back to work, and the kids and their parents bellyache about getting a lousy education and not being able to afford college. Well, I’ve said it over and over, and some folks just never get it: government can’t do it all, and sooner or later folks will just have to start doing some things for themselves. And that includes gay marriages. Then, there’s this contract thing. Because of trigger-finger Wolfowitz, I’ve had to sit on the phone for a couple of days now, trying to explain to my soul-mate in the Kremlin and the new guy in Canada and our fair-weather friends in ‘old’ Europe that they shouldn’t lose any sleep over getting work in Iraq or that other place, and that they can still help by forgiving the debt. I hope they got the message. I’m still having trouble getting folks to understand why we have to tap more phones and, as if I didn’t have enough on my plate, the guy from China was just here, and the whole town was having an anxiety attack. I guess they think I’m about to send a couple of carriers to show our support for Taiwan. Well, let me tell you a couple things, Santa. First thing is we don’t have any carriers to spare. Second thing is if we don’t stay in bed with China, we’ll have to deal with North Korea. And there won’t be any toys for the kids next Christmas. Believe me, Santa, there are days when I’d be more than happy to give this job to any of the nine folks out there who’re trying to get it.

Santa, I know you’re pretty busy this time of year, but if I’ve got any markers out there with you, this is the time I need to call them in. I sure would be grateful for your help.

Sincerely,

George

MR. WOLFOWITZ’S ‘CLEAN HANDS’ FETISH

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By William Fisher

When I was a kid in the Third Grade at public school 99 in Brooklyn, our teacher, Mrs. Lamb, established a practice of checking all those who returned from play break for clean hands, as opposed to dirt under the fingernails. The Lamb Test rewarded the ‘clean hands’ students with little silver-wrapped sweets, which Mrs. Lamb carried about in her bulging pockets. No sweets for those who failed.

As bizarre as it may seem, that’s the image that flashed through my mind when I read in The New York Times that a new Pentagon Directive, issued by deputy defense secretary Paul M. Wolfowitz, had barred, among others, French, German and Russian, Canadian and other companies from competing for $18.6 billion in contracts for the reconstruction of Iraq. This ‘no-bid’ list consists of those countries that declined to support the US invasion of Iraq. Many of the 60-odd countries on the ‘OK-to-bid’ list are developing countries too lacking in resources and expertise to reconstruct much of anything.

What’s wrong with this picture?

First, the Pentagon Directive claimed the step " necessary for the protection of the essential security interests of the United States...” What essential security interests do Mr. Wolfowitz, et al, have in mind? The Directive is silent on that point. It is also silent on explaining how allowing these companies to join in the competition for the contracts would hurt American security interests.

Second, there has been a torrent of rhetoric from Administration and other sources suggesting the urgency of ‘putting an international face’ on the reconstruction of Iraq. The Pentagon Directive asserted that ”limiting competition for prime contracts will encourage the expansion of international cooperation in Iraq and in future efforts". Exactly how a no-bid list advances that position is unclear. It sounds more like the Bush “either you’re with us or you’re against us” post-9/11 dictum.

Third, the credibility of the entire contracting process in Iraq has been severely damaged by the number of no-bid “sweetheart” contracts awarded by the US to friends and former associates of Vice President Cheney and other Administration figures. Just how the exclusion of these potential prime contractors will improve our credibility is a mystery. Bidding is not necessarily winning; it is simply bidding. Companies from countries on the no-bid list are already working in Iraq as subcontractors to US firms. If they are acceptable as subcontractors, why are they unacceptable as prime contractors?

Fourth, most thoughtful observers of our predicament in Iraq believe that this should be time when the US and its coalition partners should be working overtime to try to repair, rather than further exacerbate, the deep divisions that developed between the US and major European and other nations in the run-up to the Iraq war. Surely someone in the Bush Administration must be aware that this latest action is likely to have exactly the opposite effect. Why? It removes one of the more important incentives the Europeans and others have left to play a more important role in the reconstruction process. It clouds their role in related issues such as Iraqi debt forgiveness. And it also removes one of the few remaining leverage points the Bush Administration has with these countries, which, like every other sovereign state, do not take kindly to public embarrassment.

The Pentagon Directive was issued on a Friday, the day policy-makers typically use to release information they wish will get least attention by the media. It was not made public until the following Monday. At Mr. Rumsfeld’s press briefing on that day, not a single question was asked about this issue. The deception appeared to have worked – for a while. With the exception of The New York Times and a few other media outlets, this latest coup appeared to have slipped, as it were, under the radar. The deception strategy seemed to be working.

But by Tuesday, most of the key countries on the ‘no-bid’ list – no doubt after consulting with their home governments -- were responding with gusto, questioning its legality under WTO rules, pointing out that their countries were already participating as subcontractors, and hinting darkly at how the Pentagon’s action would make it more difficult for the no-bid countries to cooperate on such related issues as Iraqi debt forgiveness. Canada, which did not support the war but which has nevertheless pledged $250 million for Iraqi reconstruction, was particularly outraged.

Nor were objections limited to countries on the ‘no bid’ list. A Republican congressman, recently returned from Iraq, told The New York Times that it was a mistake to exclude particular countries from the rebuilding effort. "…we should do whatever we can to draw in the French, the Germans, the Russians and others into the process," said Congressman Christopher Shays of Connecticut. In a report issued along with Congressman Frank R. Wolf, Republican of Virginia, Mr. Shays said, "The administration should redouble efforts to internationalize the rebuilding of Iraq."

So what we have here is yet another example of the ideology of Bush ‘bring ‘em on’ unilateralism trumping the development of any real success strategy for Iraq. It could be another very costly and unnecessary error that will further damage US credibility in the Middle East and ultimately disadvantage the Iraqi people by slowing progress toward sovereignty.

If anyone still believes that ‘internationalization’ is still an Administration goal, and not merely the wooly rhetoric of public diplomacy, there has to be a better way than Mrs. Lamb’s ‘clean-hands’ policy to achieve it.

About the author: William Fisher is an international development specialist who has worked extensively in the Middle East for the US State Department and the US Agency for International Development. He served in the international affairs area in the Kennedy Administration and is a former journalist.