An Iraqi court has adjourned the trial of Saddam Hussein until late November, and the recent death of one of his defense attorneys might delay the trial even further, perhaps into next year. Perhaps, as some commentators (Austin Bay, for example) have argued, Saddam’s trial has already taken too long. The West might well make an example of the Hussein trial to show Western justice to a people unused to the rule of law, and thinkers have begun making their historical comparisons.
Anne Applebaum and Wretchard liken the Saddam trials to the Nuremberg trials after World War II. The allies, for four years after the war, brought members of the Nazi regime to trial and recounted their malevolent deeds. But Nuremberg was sixty years ago. If we need historical trial analogies to banter about, we can find portents in more contemporary proceedings.
Ira Einhorn, a celebrity of the sixties lefthippie type, killed his girlfriend in Philadelphia in the 1970s. After Einhorn skipped bail and hid overseas for decades, a dogged investigator found Einhorn in France. A lengthy court battle ensued over extradition and the illegitimacy of an inabsentia trial. Einhorn returned to the United States in 2002, some 23 years after his crime. He’s in jail now after a repeated prosecution, but he remains a touchstone for reminiscing radicals. Like Einhorn, Saddam faces trial for a crime committed 23 years ago. Although Hussein’s crime exceeds Einhorn’s by several factors of ten, time has rounded the moral outrages many people espouse to mere cluck-clucking or rationalization that at least Hussein made the trains run over dissidents on time.
Saddam Hussein’s trial more closely resembles the trial of Slobodan Miloševic, originally indicted for war crimes in 1997. The former Yugoslavian leader stands accused of crimes committed in the mid 1990s. As his genocides fade from popular memory, the drive for justice fades as new threats and opponents emerge. Saddam Hussein, too, has been out of power for years now, and a trial could take years more. As the years and decades pass, will the outrage and moral anger flag? Will the pursuit of justice mellow, as all but the direct victims of the crimes forget?
We can draw simple parallels between the latest trial of the century and those trials of the century which preceded it (I mean, of course, the aforementioned Einhorn and Miloševic trials, not those of Leopold and Loeb, Sacco and Vanzetti, or Bruno Hauptmann, already lost to the eldritch antiquity of the early 1900s). However, Einhorn produced an eventual guilty verdict and retribution. The Milosevic trial might yet provide a guilty verdict and justice. I fear an outcome like the biggest trial of the century of the last portion of the last century.
What if Saddam Hussein comes to trial and is found Not Guilty? What if, instead of the Nuremberg Trials, we get the Nordberg Trial? I’ve not seen any speculation to that end, and some might claim the possibility is inconceivable. I can but proffer two letters: O.J.
Evidence pointed overwhelmingly to the guilt of O.J. Simpson, but a combination of sing-song defense attorneys and an aggrieved jury pool willing to believe rather incredible stories of conspiracy and the possibilities of isolated carelessness and incompetence led to a Not Guilty verdict. The verdict cheered segments of the population who felt oppressed by the legal system and disheartened segments of the population who thought that the legal system serves justice. Some people, including your humble blogger-narrator, recognize that the legal system serves its own rules and comes out with just results in most cases, but not all. In this case, it did not, and O.J. Simpson is free to play golf, get into amusing legal scrapes, dodge payment of his civil judgment, and find the real killers.
Is it so hard to imagine the same could happen for Saddam Hussein, or is it simply too frightening to contemplate? Saddam’s defense is preparing its own conspiracy theories or their equivalents, where Saddam is a victim illegitimately deposed by a power-mad hegemon who wanted his oil and so on and so forth and ad nauseum. Perhaps rhyming sing-song won’t be enough to persuade the jury or the judges, but perhaps Saddam won’t need it. Given the ease with which Saddam loyalists have infiltrated the new Iraqi military, could they not infiltrate the judiciary? Could not someone be bought with militants’ money to declare a mistrial or to ensure a Not Guilty verdict for a crime committed in the prehistoric era that was the early 1980s?
Other commentators bill the trial of Saddam Hussein as a shining court upon a hill, wherein denizens of the Middle East can see how justice is meted in the West, where the oppressed can see how the citizens and the rule of law work, where arbitrary decisions of an elite do not deprive individuals of life nor property without due process. If Saddam Hussein somehow gets a Not Guilty verdict upon the charges which prosecutors have levied against him, that will put Iraq and the United States in quite a bind.
At that point, Iraqi prosecutors can levy additional charges against Saddam Hussein, demonstrating that the rule of law as practiced in the West means that prosecutors can continue prosecuting and persecuting the accused with a plethora of laws and violations until such time as the target is found guilty or until the target is a broken and bankrupted person. Unlike a despot, to be sure, where actual threat to life and limb are quick and capricious, but no less a tyranny, the rule of law practiced by determined prosecutors can prove relentless to even those found Not Guilty.
Or perhaps Saddam Hussein will go free after a Not Guilty verdict, free to enjoy exile in a sympathetic European or Middle Eastern state or, worse, in Iraq to lead an opposition of sorts to the new government. Perhaps Saddam would age and die without returning to power, but his figure would remain sympathetic and iconic for his followers to illustrate that the Western rule of law is weak if it allowed such an evil man to remain unpunished.
Regardless of whatever dark potential outcomes one can postulate about a Not Guilty verdict for Saddam Hussein, one cannot ignore that this trial does present a sterling example for the Middle East of the rule of law and the court system we use in the Anglosphere. However, this trial has every opportunity to expose and highlight the flaws of our system. Although these flaws exist within the system, their exposure during the Saddam trial will elevate and reverberate and ultimately discredit our efforts to transform the Middle East. Because if Saddam is Not Guilty, in some light, we must be.