Defining Justice

By Dave Johns

Can Saddam mount an adequate defense?

Statue of Saddamn Hussein

Under international standards, Saddam must be allowed to prepare his defense under the same conditions as those enjoyed by the prosecution. This means regular access to legal counsel and adequate time and facilities to prepare his defense. In the case of Saddam and his deputies, critics say these promises have not always been kept.

Why do some court observers say that Saddam has not been able to prepare an adequate defense?

Many “high value detainees,” including Saddam, were apprehended by the U.S. military before the tribunal was created. They had no access to counsel for months. “Normally, you should be able to see an attorney certainly within 24 hours. And it took about a year … then there was another few months before they even told him what he was being charged with,” said Donna Arzt, an international criminal law expert at Syracuse, to Voice of America. Some detainees were questioned by U.S. and Iraqi investigators without counsel present; whether they were informed of their rights –– such as the right to remain silent –– or were tortured during interrogations is unknown. Saddam, for one, has claimed in court that he was tortured, although most observers are highly skeptical of this charge. The tribunal has said that evidence from interrogations where counsel was not present will not be admissible in court. But it’s not clear that there is anything in tribunal rules that sets this in stone. What’s more, prosecutors could use evidence obtained from such early grillings as a basis for further investigation; indeed, they have said that they may do so.

Are defendants properly protected now that the trial is under way?

There may still be problems. Defense motions filed in October 2005 complained about a lack of time to review the evidence, about a lack of client access and about the fact that some prosecution witnesses remained anonymous. Human Rights Watch has argued that these problems may cause an “inequality of arms” and could harm the fairness of the trials. Defense attorneys, for example, have complained that they cannot get private meetings with their clients because security guards refuse to leave the room. U.S. officials dismissed this complaint by saying that the guards do not understand Arabic. But critics point out that these guards could carry recording devices and that the “take our word for it” approach is not the best way to demonstrate good defense protections.

Does detaining high–profile war criminals require special precautions?

Probably. For example, Saddam –– a lawyer by training –– has often complained that the court has taken away his rights. “How can a defendant defend himself … if they take even his pen and his papers?” he once bellowed. But Professor Scharf, an expert in international law, believes the seizure is warranted. He points out that Saddam is on a 24–hour suicide watch and that other high–risk prisoners have taken their lives using pens. He says that’s also why Saddam is not allowed private meetings with his attorneys. “In 1946, the ranking Nazi defendant tried at Nuremberg, Hermann Goering, cheated justice by taking cyanide, which had been smuggled into the jail during the trial,” Scharf wrote, adding that you can have a trial only “when the defendant is alive and present.” In the United States, maximum–security prisoners are sometimes strip–searched before and after meeting privately with their lawyers.

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