Cover Story

The long goodbye

"The long goodbye" Continued...

Issue: "Ready or not, here we go," March 28, 2009

Defenses attorneys and judges also sacrificed their lives for due process: Four members of the legal team for Saddam and his seven codefendants were killed during proceedings. Nearly 200 Iraqi judges and lawyers have been assassinated since 2003, including several who began as part of the pool of tribunal judges.

At one point the Iraqi government also tried to upend proceedings, accusing several members of the tribunal of having ties to the Baath Party and forcing the chief judge to step down. But the tribunal forged ahead-sifting through what were in the beginning 10 tons of files, the evidence amassed against Saddam and his regime, stored in a specially built secure facility, according to Judge Raid Juhi Hamadi al Saedi. The former chief investigative judge of the tribunal has been a visiting fellow at Cornell Law School. "Our responsibility was to send the message that no one is above the law," al Saedi told Cornell law students last year. "We also sent a strong message to judges and legal experts that it is [their] responsibility to handle and improve the situation in Iraq. And we also sent a message to politicians: that they must [not interfere] with the rule of law and must show respect for the [Iraqi] constitution."

As the trial wound down, Newton left Iraq in December 2006, confident that a verdict and sentencing for Saddam would not take place until spring. But days later as he boarded a plane for New York, he received a text message saying, "opinion due shortly." By the time he arrived in New York, Saddam had been sentenced to death and a date of execution was nearly set.

Newton describes those final proceedings as "a mess" in Enemy of the State and writes that the tribunal "was snake-bitten from its conception." Human-rights organizations and European countries opposed it because it allowed for the death penalty and prevented Saddam from being tried in an international court. The tribunal itself was unprepared to counter the outbursts of Saddam and other defendants. Despite the trial's flaws, Newton believes the determination of the Iraqi jurists and the Iraqi people who followed it on television by the millions is a little understood milestone even now as the war draws to a close.

"I was surprised by the speed of things. But you have to remember that the Iraqi government was under tremendous domestic pressure to move swiftly. People were dying in the streets every day. The fear and paranoia over Saddam is hard to overstate. And they didn't trust the Americans." Prosecutors feared that a delay in sentencing would allow time for U.S. forces holding Saddam to reconsider turning him over to the Iraqis.

"The Iraqi judges saw this as their way of fighting terrorism. They couldn't take to the streets and fight but they could do the judicial process," said Newton. The Dujail opinion, and ongoing cases against Baathist leaders for war crimes against the Kurds, also are pertinent for the United States, Newton contends, in the continuing struggle among the executive, congressional, and judicial branches to define how to fight terrorism within the bounds of the law.

"The trial was a microcosm of the surge," said Newton. "If you put in a bunch of troops and there's no parallel system of law and justice, you can put in as many troops as you want and you will not get societal order. . . . I don't think you have a successful surge without reestablishing the rule of law. And conversely you can't reestablish the rule of law without a successful surge."

The other important by-product of Saddam's 2006 prosecution is that his Baath Party died with him. "The message for leading Sunnis was that you cannot have power again without being part of the political process," Newton told me.

The turnabout was evident in Iraq's recent provincial elections. Sunnis and Baathists boycotted parliamentary elections in 2005-with dire consequences. Once locked out of power in places like Anbar, Nineveh, and Diyala, provinces where they once enjoyed perhaps undue influence under Saddam, many took to the streets as insurgents.

This time Sunni turnout in Jan. 28 polls averaged 60 percent, compared to 2 percent in 2005, and Sunnis gained key seats on the local councils in Nineveh, an increasingly important source of power for Sunnis and Iraqi minorities given the overall gains by majority Shiites.

In general, more strictly religious parties, including radical Islamist groups, did poorly alongside more broadly secular ones. In Mosul, where Christians have been attacked by militants, that was good news: The largest Sunni party won more than 40 percent of council seats, Kurds won over 20 percent, and radical-leaning groups like the Sunni Arab Iraqi Islamic Party received less than 7 percent of the vote. In once-volatile Anbar province, Sunni leader Saleh al-Mutlaq's Iraqi National Project won a narrow victory over incumbent Sunni Islamists.

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