HomeWar On TerrorDefending the indefensible Defending the indefensible Jay Tea July 3, 2004 War On Terror 5 Comments With Saddam Hussein High-speed ca-ca chase Restless Related Posts In Defense of the NSA's Phone Call Records Program What he said, part II Who Cares? About The Author Jay Tea 5 Comments Flint July 3, 2004 ” He was part of a system that didn pennywit July 3, 2004 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. –|PW|– Jay Tea July 3, 2004 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. J. pennywit July 4, 2004 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. –|PW|– Flint July 4, 2004 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 … .