Analysis of Legal Road Ahead for Saddam Hussein

JIM LEHRER:

And now more on the legal road ahead for Saddam Hussein and his top lieutenants. It comes from Michael Scharf. He's a professor of law and director of the War Crimes Research Office at Case Western Missouri University. He's just returned from training ranking judges, prosecutors and defense lawyers for forthcoming war crime trials.

Professor Scharf, welcome.

MICHAEL SCHARF:

Jim, it's good to be on.

JIM LEHRER:

First, explain to us what legal custody actually is, what does it mean?

MICHAEL SCHARF:

Well, legal custody means that the United States still has physical custody, but technically Iraqis have jurisdiction. And it's just a matter of semantics, but it's an important point — if we were to physically have given Saddam Hussein over to the Iraqis, there would be a great likelihood that he might escape; he could become like a Napoleon; he could rile up the Iraqi people and set off a civil war in that case, or maybe he would be killed in custody; again, that could cause a lot of tension and fighting in Iraq. And so it makes a lot of sense for the United States to keep him in our physical custody, although the Iraqis technically get to call the shots.

JIM LEHRER:

What do you mean technically? I mean, in a real sense they're not going to call the shots, or does this mean now that the United States no longer has a legal hold over Saddam Hussein?

MICHAEL SCHARF:

The United States does not have an absolute legal right to control what happens to Saddam Hussein. That right has transferred with the sovereignty to the new Iraqi government. However, of course, the United States has a lot of pressure points that can impose on the Iraqi government to get it to play ball. For example, the $75 billion a year that is necessary to reconstruct that country —

JIM LEHRER:

Sure, but I'm just talking about the legal side now.

MICHAEL SCHARF:

Right.

JIM LEHRER:

As a practical matter, the United States would not be involved in the trial. Now let's go to the process. Tomorrow we just….

MICHAEL SCHARF:

Let me correct you on that, Jim. The United States will be involved in the trial but from behind the scenes, more like a puppet master role. In fact, the tribunal statute requires that both the judges and the prosecutors receive assistance from U.S. authorities.

JIM LEHRER:

Well, assistance is one thing. I'm talking about making the decisions and all of that. Are you suggesting that the United States is still going to be making, calling those decisions? No, right?

MICHAEL SCHARF:

No, no. That will go to the Iraqi government.

JIM LEHRER:

Okay. All right. Tomorrow John Burns just explained what's supposed to happen tomorrow. They will read the charges. Is that right?

MICHAEL SCHARF:

Right. This is the mother of all curb walks. They're going to read the charges.

JIM LEHRER:

Mother of all what?

MICHAEL SCHARF:

I call it curb walk. I teach criminal procedure, and that's what happens in the United States — the term that they call when someone goes to arraignment.

JIM LEHRER:

All right. They will read the charges. Will he enter a plea?

MICHAEL SCHARF:

And he will enter a plea, but my guess is that he will do what Milosevic did, which is he'll trying to make speeches condemning the right of this court to try him.

JIM LEHRER:

We'll actually see what happens. I'm just talking about the process. The process as it has been worked out, he will enter a plea. Will he be represented by, can he be represented and will he be represented by an attorney?

MICHAEL SCHARF:

Yes. In fact, his wife has attained — retained legal counsel. And apparently there are 20 other lawyers that are already assisting in the preliminary matters that that defense counsel has begun.

JIM LEHRER:

Who will be the prosecutors? Have they been selected as well?

MICHAEL SCHARF:

The prosecutors and the judges have been selected by Chalabi, the person that you saw earlier in the newscast. And the prosecutors and the judges are all Iraqis, many of which I believe are former exiles who have come back. It's unlikely that a lot of indigenous Iraqis who have been there a long time under the Baathist regime would be participating because they would be seen as tainted.

JIM LEHRER:

Now, the judges, how many judges will be presiding tomorrow? It's a panel of judges, correct?

MICHAEL SCHARF:

Right. There's a panel of three judges for the trial. It may just be a single judge tomorrow for the arraignment. Let me get back to one other thing. If Saddam Hussein refuses to enter a plea, they will enter a plea of not guilty for him.

JIM LEHRER:

Okay. Now, once the plea is entered, however way it gets entered, then what is the next step?

MICHAEL SCHARF:

The next step is a discovery process and also pretrial motions. In the next coming months Saddam Hussein's lawyers will have a motion to exclude certain evidence. They'll have motions to try to release the defendant on bail — very unlikely — to challenge the jurisdiction of the court. All of these motions are unlikely to succeed but you'll see a lot of time spent on those going up until the new year. The actual trial will begin sometime in January or February 2005.

JIM LEHRER:

Now, the various steps you just went through, where do they come from? What rules will they be following this process tomorrow, I mean, beginning today, tomorrow and all through as you just said up through January?

MICHAEL SCHARF:

This is one of the most interesting aspects of this. The Iraqi special court statute was drafted by the United States, given to the provisional government and then ratified by the new government.

The statute does not look like a traditional Iraqi court. Instead it looks more like the Yugoslavia tribunal or the Rwanda tribunal or even more ironically the new International Criminal Court that the Bush administration opposes.

JIM LEHRER:

But it's not a standard U.S. court procedure, right? They didn't just give them a U.S. court procedure and tell them to do it that way or did they?

MICHAEL SCHARF:

No. It's not exactly like the United States although the rights that the defense gets and the adversarial nature are more like the United States' system than the traditional Iraqi system: The big difference being that there are a panel of three judges rather than a jury.

JIM LEHRER:

Can Saddam Hussein and the other defendants call their own witnesses in their own defense?

MICHAEL SCHARF:

They will be allowed to call their own witnesses and much like the Milosevic trial they're expected to call people like George Bush and Rumsfeld, Bush the elder, Clinton; April Gillespie and many other officials who over the years had provided support and mixed signals to the Iraq regime.

JIM LEHRER:

It was mentioned on this program last night by an Iraqi American that he hoped this trial went on for a long time because what was at issue here beyond justice was reconciliation. Do you foresee a long trial that would involve many, many witnesses along the lines at least attempted along the lines you just outlined?

MICHAEL SCHARF:

I definitely think it will be a long trial although not as long as the Milosevic proceedings. One thing that they will do differently….

JIM LEHRER:

Which… you keep mentioning the Milosevic. It's been going on for what, two years or or so now?

MICHAEL SCHARF:

It's in its third year. On Monday Milosevic begins his defense so a fourth year.

JIM LEHRER:

All right. So this could go on. You don't think it will go on quite as long as two years.

MICHAEL SCHARF:

No, and I think the reason is because they're going to identify specific cases involving one atrocity in the Iran War, one atrocity in the invasion of Kuwait, one atrocity in the attacks against the northern Kurds or the southern Shiites — instead of trying to prosecute him for thousands of different cases, they will pick and choose exemplary situations in which they have very good evidence and that make a compelling case.

JIM LEHRER:

But there will not be sweeping charges like war… I mean, crimes against humanity, genocide, that sort of thing?

MICHAEL SCHARF:

They will charge him for genocide and crimes against humanity but rather than trying to prove many specific instances over a long period of time, they'll focus on one exemplary situation.

JIM LEHRER:

Now, is there an appeal process that could follow this or is there just one trial and that's it?

MICHAEL SCHARF:

There is an appeal process. In fact, the special court has an appeals chamber. There's an automatic right to appeal. So after potential a year-long trial there's going to be another six-month wait for the appeal and probably a couple of months wait for its decision. So this won't end for a couple of years.

JIM LEHRER:

All right. Under the rules, will everything be done in the open?

MICHAEL SCHARF:

No, not everything. That's one difference between the international tribunals and this one. Because of the situation of the Milosevic case, the United States has sought to have more control of the proceedings and make sure that the Iraqis have greater control over Saddam Hussein. So he probably won't be allowed to represent himself like Milosevic has. They will close the trial proceedings from time to time to the public to protect certain witnesses. You'll never be able to see the judges' faces. You'll only see them distorted if it's broadcast at all or blacked out if it's going to be an artist's sketch.

JIM LEHRER:

Based on what you know up until this point, we know the process has just begun, do you believe that Saddam Hussein will get a fair trial?

MICHAEL SCHARF:

It would be very hard for him to get an acquittal given what we know of the evidence. And because of that he may not even try to get an acquittal. He may try to do what Milosevic did which is just use the trial as a platform for a lot of rhetoric and anti-American bashing. I think that….

JIM LEHRER:

I'm just talking about the process as you understand it, if it's followed, would Saddam Hussein get a fair trial?

MICHAEL SCHARF:

I would –

JIM LEHRER:

Your opinion.

MICHAEL SCHARF:

I would think that, yeah, it's all relative. It's fairer than any trial than was ever given in Iraq under his regime. It's pretty fair, but I just don't think there's a good chance he'll be acquitted. Tariq Aziz, however, the foreign minister, he might actually walk out at the end of this.

JIM LEHRER:

Okay. We'll talk about that some other time. Mr. Scharf, thank you very much for being with us.

MICHAEL SCHARF:

It's been a real pleasure.

JIM LEHRER:

Thank you.