Earlier today, thousands of Iraqi Shiites demonstrated in Baghdad in favor of executing Saddam Hussein. In the photo below, the Iraqis have put a bronze bust of Saddam on a pole and one man is beating it with a shoe while others stone it.
There has been a great deal of talk about how to insure that Saddam receives a “fair trial,” and even some hand-wringing about whether a “fair trial” is possible, and whether Saddam’s guilt can be proved. I find all of this somewhat puzzling. It seems to me that the only issue requiring proof is that the prisoner in the dock is, in fact, Saddam. Beyond that, what possible proof could be adduced in a trial that would add to the already-certain knowledge that Saddam was responsible for grotesque crimes against the Iraqi people?
After World War II, Churchill opposed the idea of trying the Nazi leaders who were still alive, arguing that they should simply be shot. Trying a deposed tyrant to “prove” what is already known, with far more certainty than can ever be achieved in a courtroom, is likely to achieve little other than giving the tyrant a platform from which to proclaim his “innocence” and to confuse the historical record. A year or two ago, the Trunk and I wrote an article for the local bar journal about the cross-examination of Hermann Goering by the chief Nuremberg prosecutor, Supreme Court Justice Robert Jackson; see the link on the left side of the page. Goering’s cross-examination did not go well, to put it mildly.
The key issue, it seems to me, is that giving a deposed tyrant the equivalent of a criminal trial assumes that it is somehow necessary to prove that a dictator is responsible for the crimes committed by his regime. It also assumes that an Anglo-American type trial is the best (if not the only) means of establishing the “real” truth. I would reject both of those assumptions, and, if dissuaded from shooting Saddam when his usefulness as an information source has ended, I would impanel a tribunal to take testimony from Iraqi citizens for the purpose of preserving a record of Saddam’s crimes, with no participation by representatives of Saddam or the Baathist regime. Following which, Saddam would be executed.
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