This May Be News To Hussein, But He's Got A Defense Team, And It's Hoping For Bail

AMMAN, Jordan, July 8 - In a little office off Al Jaleel street, above noisy sidewalks packed with boys selling prickly pears and women shopping for shoes, a group of lawyers thumbed through chunky legal books and debated how to get bail for a man accused of genocide.

The team begins with Muhammad Rashdan, a 55-year-old former Baathist who says Iraq's former dictator has been misunderstood.

"He's a severe person, but he's just," Mr. Rashdan said. "I'm honored to represent his excellency."

Then there is Ali Nasrat al-Asaadi, a Kurdish lawyer living in Lincoln, Neb., who adamantly defended Mr. Hussein's use of chemical weapons on Iraqi Kurds.

"The Kurds were rising up against him," Mr. Asaadi said. "In self-defense, you can use whatever you need, even chemicals."

And Giovanni Di Stefano, a compact, slickly dressed Italian dynamo, who said that he had met Mr. Hussein and that one of the former dictator's favorite books was "To Kill a Mockingbird."

"That's what this case comes down to," Mr. Di Stefano said. "Do you want law or mob justice?"

On Thursday, the men began drafting the first legal challenges to Mr. Hussein's prosecution. Mr. Hussein, who is being investigated for allegations of genocide and war crimes, has not been charged yet.

The lawyers claim among other things that it is illegal to try Mr. Hussein in his own country because he is immune from prosecution as a head of state.

They concede their work will not be easy. For starters, they do not even know if Mr. Hussein wants to hire them. In his first appearance last week in front of a special tribunal in Baghdad, a fiery-eyed Mr. Hussein refused to sign any court papers and did not ask for specific legal representation. But Mr. Rashdan, captain of the defense team, positioned himself as Mr. Hussein's main counsel last December when he formed a committee to represent the former dictator two days after he was found in a spider hole near Tikrit. He said Mr. Hussein's wife, Sajida, who herself has gone underground, gave him power of attorney. The lawyers are now petitioning the tribunal to meet with Mr. Hussein, but they have not heard back yet.

The lawyers say they are taking on Mr. Hussein's case because of their legal scruples.

"This isn't about Saddam," Mr. Di Stefano said. "This is about fact and truth and law and justice."

The threesome, who at times plunge into sprawling conspiracy theories and anti-American diatribes, are at the core of what they say is a widening circle of support. Just last week, Col. Muammar el-Qaddafi's daughter, Aicha, a law professor in Libya, agreed to help.

In a phone interview, Gerry Spence, the famous Wyoming criminal defense lawyer, offered this strategic advice: "If I were defending Saddam, I'd attack wherever I could - I'd make it my mission to show the world what a fair trial really is."

Earlier this week, the lawyers planned a convoy into Baghdad but canceled after they heard some people were waiting to kill them and cut them into pieces. On Thursday, masked gunmen issued a videotape threatening to behead them.

They also face a more bureaucratic problem. The Iraqi lawyers' union is lobbying to bar foreign lawyers from appearing before the special tribunal. Mr. Rashdan said he was trying to work out a compromise in which his group teams up with local lawyers. The trial is not expected to start for several months.

The lawyers were coy about whether they were getting paid. "If we do get paid, it will be from legitimate funds from the Hussein family," Mr. Di Stefano said.

A central argument of the defense team is that the special tribunal, established in December by the occupying American authority, is illegitimate because there was no legal basis for invading Iraq.

M. Cherif Bassiouni, an international law expert at DePaul University in Chicago, said some of the defense team's arguments were stronger than others. Dr. Bassiouni said the immunity issue was a nonstarter because Iraqi law specifically excluded "international crimes" from immunity. But he said that because the tribunal was formed under American rule, legal questions could be raised about its legitimacy.

As I wrote in December, 2003, shortly after Saddam's capture:

I don't understand those who say that Saddam is entitled to a trial.

The point of a trial is to determine whether or not a defendant is guilty of committing particular crimes. If he actually committed those crimes, his defense focuses on whether the defendant was really responsible for acting criminally.

We have a constitutionally mandated trial system in order to ensure fairness and to protect presumably innocent defendants from being railroaded by the overwhelming power of the state.

In Iraq, Saddam WAS the state. Can there really be a presumption of innocence for the totalitarian ruler of a police state? Presumption of innocence is a right of the People. Saddam, by virtue of his office and the means by which he sustained it, is not and never has been a member of “the People" in any meaningful sense.

There is no slippery slope here. It is not as if we threaten the rights of any other citizens or groups by refusing to extend the presumption of innocence to criminal dictators around the world when they come into our custody. Political dictators comprise a unique group – arguably the most exclusive club in the world . They commit their crimes by exercising unique powers under the laws that they alone are able to impose, and it is justice to treat them uniquely in their ultimate legal disposition.

In the west, we have developed a trial system as a means of finding truth. But certainly in Saddam's case the process can commence with the unarguable stipulation that he committed human rights atrocities against the people of Iraq and the rest of the world.

What possible defense could Saddam offer? That he didn't commit these crimes? That he has been framed by Jamaican drug lords? That he was out playing golf while it all happened and so wasn't anywhere near the scene? That he didn't give the orders? That he didn't commit many of these crimes with his own hands, as well as through delegation to subordinates? That somebody else did it? That these crimes are propaganda and never really never happened? That he did not commit even one of the millions of individual counts on the indictment?

There is no legitimate defense against the criminal indictment of Saddam, because his acts are too ubiquitous to fully catalog, and his responsibility is self-evident, well-documented and universally conceded. His own megalomaniacal boasting through state controlled-media and publicly funded monument building over three decades amounts to a full public confession of his own guilt.

So if there can be no defense, why grant Saddam an opportunity to mount one? Why allow him to turn a necessary legal proceeding into a charade and a propaganda coup by granting him a presumption of innocence and a right to have his attorneys cross examine witness. .

Perhaps some will claim that even though Saddam committed his criminal acts, there might be extenuating circumstances that would somehow mitigate his guilt. Therefore, they would argue, it is necessary to have a trial so that such circumstances can be presented in Saddam’s defense..

It is well known that Saddam had a brutal and tragic childhood. Is it really his own fault that he grew up to be murderous, raping, plundering, sadistic and ruthless narcissistic monster? Maybe he was taking too much medication. Maybe it could be argued that he was really working for the greater good of pan-Arab nation, and that there is some level on which his actions may be justified.

Even if such arguments were legitimate, they would still only be relevant to the issue of sentencing. They have no bearing on the question of Saddam’s guilt or innocence.

What Saddam needs, therefore, is not a trial, but a sentencing hearing. He needs to be made to sit in the dock for months, if not years, on end, listening to the endless testimony of those he has ruined. The world needs to hear this testimony and see the documentary evidence, so that those who supported Saddam in Iraq, at the UN and in European state capitals can be confronted with their own duplicity.

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