More Than Hussein Is on Trial

In a country more bloodied now than at the time of his capture, Saddam Hussein is set to appear in court next week for a trial that could become either a milestone in a democratic transformation or a new source of crippling strife.

The five trial judges sit on a special Iraqi court organized and financed by the Bush administration to bring the deposed president and his closest collaborators to justice. But this is not the case Washington wanted to start with.

U.S. officials had advised the judges on the fledgling court to try a “test case” against underlings before putting Hussein on the stand. Urged by Iraqi leaders to move more swiftly, investigative judges chose instead to include Hussein along with seven aides in the court’s first trial.

The conflicting pressures on the Iraqi Special Tribunal reflect deep uncertainties about how to proceed with the notorious prisoner 22 months after his capture. With the country torn since his ouster by an insurgency targeting Iraq’s elected leaders and 140,000 U.S. troops, much more is at stake than the fate of one man.

Many Iraqis say they look forward to the trial, but the clamor is not universal. Through his lawyer, Hussein is trying to have it delayed. Some Iraqis revere him as a father figure, illegally deposed and humiliated. Others would rather see him summarily executed.

The proceedings, scheduled to start Wednesday in a heavily guarded courtroom in Hussein’s former presidential palace complex, are the first of what could be more than a dozen trials, each covering a separate alleged atrocity and carrying a maximum sentence of death by hanging. The first case deals with the alleged revenge executions of 148 residents of a village where the dictator had dodged an assassination attempt.

For Iraq’s people, the trials could produce a thorough accounting of crimes attributed to his Sunni Muslim Arab-led regime. But they also risk handing the defendant a televised platform to inspire the largely Sunni insurgency.

For the Bush administration, which found no weapons of mass destruction after ousting Hussein, a string of successful prosecutions could help it defend the decision to invade Iraq by focusing attention on the dictator’s alleged atrocities.

For the Iraqi government, dominated by Kurds and Shiite Muslims whose people suffered most during Hussein’s 24 years in power, short-term goals are paramount. Iraqi leaders say they hope the first trial will satisfy demands for justice by a beleaguered citizenry during an election season and end with his execution, an outcome they say would deflate the insurgency.

And for the judges and prosecutors of the Iraqi Special Tribunal, their debut will be a test of judicial independence and competence as well as a risk to their lives. Their conduct will help determine whether history views the trials as fair and transparent proceedings or acts of political vengeance and expediency conducted under the tutelage of an occupying power.

“The whole event is going to be tricky,” said a U.S. official who declined to be identified. “I’m just not sure they can balance the pressure to make the trial clean and procedurally correct with the desire to do it quickly and reap some of the political benefits they think they might get out of it.”

The Tribunal

The lead protagonist in the political and legal drama is a U.S.-created tribunal whose judges have taken pains to proclaim their autonomy, distancing themselves from the Hussein era, their American mentors and the current government.

But they work closely with dozens of U.S. Justice Department lawyers and forensic specialists based here in a branch of the U.S. Embassy known as the Regime Crimes Liaison Office. With a $75-million budget, the Americans have screened tons of physical and documentary evidence, offered guidance to Iraqi prosecutors on strategy and run them through a mock trial.

Under statutes drafted by U.S. officials and ratified in August by Iraq’s elected National Assembly, the judges will apply a mixture of Iraqi criminal procedure and international law covering genocide, crimes against humanity and war-crimes violations of the Geneva Convention.

Hussein’s attorney, Khalil Dulaimi, petitioned the court last month to postpone the trial to give his client access to a wider range of lawyers and allow them more time to prepare.

The trial judges are expected to hear Dulaimi’s arguments in the opening days of the proceedings. Raid Juhi, the investigative judge who prepared the charges, said Thursday that an adjournment was possible before any substantive airing of the charges.

The court’s impartiality has also been questioned by international human rights groups, which argue that Iraq’s legal system was corrupted by Hussein and left vulnerable to political manipulation.

Last year, Human Rights Watch and other organizations called for Hussein to be tried by an international tribunal or a “hybrid court” made up of Iraqis and foreign jurists.

U.S. and Iraqi leaders rejected that idea. They say Iraq is willing and able to try Hussein and deserves to lead its own search for justice. But with the court untested, the judges’ decision to include Hussein in the first trial has made some American officials nervous.

“We recommended starting with a small case and working up [to Hussein] just in case you have to work out the quirks,” said a senior Bush administration official who declined to be named. “Nobody can script what this is going to look like.... Anything could go wrong.”

The court’s chief prosecuting judge said the court had decided to start with a relatively simple case and had dismissed the idea of changing course when evidence came to light linking Hussein to killings in the Shiite village of Dujail.

“The investigators finished that case first, so that will be the first case to go to trial,” said the prosecutor in the case. He said evidence in other cases against the former president was still being compiled.

The prosecutor, whose identity is not publicly known, granted an interview on condition of anonymity. He wanted his family to get to a safe place before he publicly outlines the charges against Hussein in court. The trial judges have been assigned but not yet publicly identified.

A Lesser Case

Michael P. Scharf, a law professor at Case Western Reserve University who took part in U.S.-sponsored training sessions for the prosecuting and trial judges, said they weighed starting Hussein’s trials with the most serious charge against him. In that case, Hussein would have been accused of responsibility for the so-called Anfal campaign, a genocidal assault that led to the deaths of as many as 100,000 Iraqi Kurds in the late 1980s, some in poison gas attacks.

The decision to confront Hussein first with a lesser crime disappointed U.S. officials. They believe it could diminish the trials’ moral lesson if the world pays less attention to later but more significant cases.

“The administration evidently wants to justify the invasion of Iraq by portraying Saddam’s worst atrocities, but what the world will see in this first trial is something less than a genocidal monster,” Scharf said.

That distinction is of no concern to Iraqi government officials, who had been demanding for more than a year that the court get Hussein on the stand.

Although court officials deny that they were swayed by the government’s entreaties, Iraqi officials say public demands for a trial had an effect.

“Iraqis cannot understand how Saddam has been held for nearly two years without trial,” said Laith Kubba, the government’s chief spokesman. “There’s plenty, plenty of evidence. What’s the holdup? People find it unacceptable.”

But whatever solace it might bring to families of victims, the trial also threatens to deepen Iraq’s ethnic and sectarian rifts.

Saleh Mutlak, a former member of Hussein’s Baath Party, has accused the government of rushing the trial to shore up support among Shiites and Kurds before the national election on Dec. 15.

“Having this trial at this critical time is wrong,” said Hunain Qaddo, a Shiite member of the National Assembly. “It will incite the extremists.”

U.S. and Iraqi officials say the trial is worth the risk of a spike in the violence. The lesson it could give Iraqis about legal accountability and fair trials, they say, supports the country’s democratic development.

Mowaffak Rubaie, Iraq’s national security advisor, said getting Hussein tried and convicted “will be a huge demoralizing blow to terrorism and the insurgency.”

That effect is debatable. After a brief lull following Hussein’s capture in December 2003, insurgent violence continued to grow, fueled by causes and grievances that go far beyond Hussein’s imprisonment, say U.S. officials and other specialists. The biggest challenge, Rubaie and other officials say, is not proving Hussein’s guilt but keeping him from taking over the event.

The court’s rules have been amended to prevent defendants from acting as their own counsel. A court official said the judges probably will allow a telecast of the trial but might delay the transmission by at least 20 minutes so censors can edit out any incitement to violence.

The prosecutor outlined the procedure in place to prevent Hussein from grandstanding.

“If the defendant strays from the question,” he said, “the chief trial judge can cut him off with a warning. If the defendant keeps talking, the chief judge can warn him a second time. If he repeats the offense, the trial judge can send him out of the courtroom while the trial continues. The defendant has a right to return, but only if he signs a pledge not to do it again.”

The Death Penalty

Kubba and Rubaie are on record favoring Hussein’s prompt execution if he is convicted in his first trial. The officials, both Shiites, contend that this would stabilize Iraq. As Rubaie put it, “Saddam’s mere presence is fueling the insurgency.... The head of this thing must be crushed.”

But that idea has stirred opposition from Kurdish leaders and others determined to require Hussein to answer for all his alleged crimes. They include Anfal and the brutal response to the Shiite uprising that followed the Persian Gulf War in 1991. The violence is widely believed to have ended with 150,000 people bulldozed into mass graves.

If Hussein is convicted, the trial judges will impose a sentence. A death sentence would go to a nine-judge appeals chamber of the same tribunal. If the penalty stood, the trial judges could delay it in the interest of holding Hussein to stand trial on other charges or testify in the trials of former subordinates.

The prosecutor believes Hussein will be spared execution until all his trials run their course.

“Let the trials take years,” he said. “The important thing is that justice should prevail.”

Times staff writer Zainab Hussein contributed to this report.