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Defending the indefensible

With Saddam Hussein’s first appearance in an Iraqi court, legal observers (both professional and amateur) are eagerly racing to comment. Far be it from me to miss out on all the fun. In the extended section, I’ll spell out my idea for a defense for Saddam. I also invite other ideas in the comments.

One of the most fascinating facts about sharks is their respiratory system. They cannot breathe on their own; they constantly need water flowing through their gills. They are in constant motion to maintain the water flow, even when sleeping. When a shark stops moving, it starts dying.

The United States military has a policy called “up or out” for officers. In essence, as I understand it, officers are limited to how much time they can serve at each rank. At the end of that period, if they have not won promotion, they are forced to retire. The idea seems to be that the best officers should be promoted, and lesser ones set aside to make room for other outstanding officers to move up and through those positions. An officer who “peaks” and tries to hold their position is blocking the course of subordinates who want to move up and through that position.

Both these situations have similarities to tyrannical governments. Those within that government can never grow complacent, never be content to maintain their position. They have to keep moving upward in the system, or they will be cast aside. However, dictatorships seldom have pension plans like the U.S. military; it’s usually more like the shark. The person serving the state must continue to move higher, or be killed.

Saddam Hussein fits this mold perfectly. He was a part of an incredibly brutal, repressive system. Resignation or simple survival were not options. He had to keep rising within the system, eliminating his rivals before they eliminated him, until he reached the peak and became dictator of Iraq.

And once he was in power, he had to maintain his power. A quiet retirement was not possible, and exile has a spotty history. He was riding the tiger, and there’s no easy way to get off. He had to keep his subordinates competent, to protect himself, but not ambitious, to keep them from killing him (as he had done on his rise to the top).

In that context, a case can be made for every single one of his actions as simply being an extension of the “self-defense” argument. He was part of a system that didn’t merely encourage brutality, but required it as a means of survival. Terror and violence were facts of everyday life. Mercy is derided as “a disease of dogs.” “An eye for an eye” is considered lenient. Hussein’s only guilt is in being more successful at playing the game than many others, for many years.

So, that’s one defense argument I’d consider for Saddam. Any thoughts?


Comments (5)

" He was part of a system t... (Below threshold)

" He was part of a system that didn’t merely encourage brutality, but required it as a means of survival. "

Wasn't Saddam the creator of that system?

A few defenses I would thro... (Below threshold)

A few defenses I would throw out there, at least assuming they're part of Iraqi law;

* Sovereign immunity.

* Lack of awareness.

* Acting in best interests of Iraqi government.

* Preserving security.

* Prosecuting a lawful war.

* Acted in accordance with laws in existence at time of alleged crimes.

* Related to last: Ex post facto.

* Backed by Iraqi people (90 percent of the vote's gotta be worth something!)

* Court's lack of jurisdiction.

* Lack of attorney at arraignment.

* Lack of ability to confront witnesses against me (assuming that is in Iraqi law & Saddam is not allowed to confront witnesses).

* Inadequate time to prepare defense.

* Challenge death penalty under international law.

* Improperly constituted court.

A lot of the witnesses against Saddam are going to be officials from Saddam's government. If I were in Saddam's attorney's shoes, I would impeach every one of those witnesses. My questions would include:

1. Did you participate in any of these alleged activities?

2. Did your orders in these activities come from Saddam? From whom?

3. Are you facing charges for these activities? Why/why not?

4. Have you made a deal with prosecutors to testify in their favor in exchange for leniency in your own trial?

5. So, the authorities have agreed to lower your charges in exchange for testimony favorable to them. Is that correct?

Those are a few things I can think of off the top of my head. Of them, maybe a third would actually be effective in the trial. A fact-based defense would come down to this:

1) Saddam was the sovereign of Iraq at the time the alleged acts took place. As such, he had the duty to maintain order in Iraq. If his subordinates carried this too far, Saddam himself cannot be held immediately responsible. The connection is too attenuated.

2) Saddam ordered action against the Shiites and Kurds not because he wished to harm them, but rather because they were in open rebellion against Iraq. To preserve the country, Saddam had no choice but to act decisively.

3) The various witnesses against Saddam cannot be trusted. Many of them have committed unspeakable crimes. Naturally, they would like to escape culpability for the worst of their activities, so they have chosen to tell exactly the story the prosecution wants to hear in exchange for their lighter sentences.

A law-based defense would focus on such things as ex post facto and sovereign immunity.

Nobody here should take this post to mean that I support any element of Saddam's regime, or even that I want him to win at trial. But if Saddam has a virgorous, competent lawyer, that attorney is going to bring all of the above defenses and tactics to bear, and more.

For an attorney to do any less than his utmost for his client is a serious breach of duty.


As I posted <a href="http:/... (Below threshold)
Jay Tea:

As I posted a while ago, my belief is to dump the whole legalistic process during matters of war. Sometimes you gotta say "he did these things, he did them voluntarily, they were not necessary, and for that he was summarily executed. Sorry you missed it." Some things are too big to allow lawyers to ass around with.


Dump the legalistic process... (Below threshold)

Dump the legalistic process? That's my future profits you're taking there, Jay Tea!

Seriously. I'm not a big fan of war-crimes tribunals myself. If a nation wants to put its former head of state on trial after the cessation of hostilities, that is, of course, nat nation's business.

But international tribunals? To me, they always smack of the Western world trying to salve its conscience for not intervening earlier in crimes against humanity.


Allow me --far from being a... (Below threshold)

Allow me --far from being an expert on it-- to post some related links:

- The "Brussels Liberation Act"
- Following the previous diplomatic dance, the Universal Jurisdiction Rejection Act (after which, many more dances were performed ... )

The concept of an international body, as for example the "If you-want-it-done-right-you'd-better-do-it-yourself-UN" is proving, controlling or even policing the world still needs a lot of work.

But as they say, "The winner is always right". I believe more than one person has already pointed to the Nuernberg trials ... .






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