- The Washington Times - Wednesday, December 31, 2003

Even Saddam Hussein has legal options.

The deposed Iraqi leader could harken back to the trials of Nazi leaders and Japanese commanders after World War II to fight expected charges of genocide and war crimes, claiming he never personally killed anyone or that he had no control over atrocities committed in his name, U.S. defense lawyers and scholars say.

Saddam also might look to the present, and adopt the tactics of deposed Serbian President Slobodan Milosevic. On trial now before a U.N. war-crimes tribunal in The Hague, Mr. Milosevic has essentially thumbed his nose at the prosecutors and judges and uses the sessions to make windy speeches.

Any trial for Saddam may be a long time off, and it is not clear where or how he will be called to answer for suspected crimes dating back decades. But when the expected trial comes, Saddam can choose from a few basic legal strategies.

The first step for Saddam’s defense team will be a challenge to the authority of whatever body puts him on trial, lawyers say. That attack will be easier to make if Americans are involved in organizing or underwriting the trial, but a smart defense lawyer would use the same tactic to challenge even a trial conducted wholly by Iraqis, lawyers say.

Former U.S. Attorney General Ramsey Clark said last week that he would be willing to provide legal counsel to the ousted Iraqi leader if he requested assistance. Mr. Clark was attorney general under President Johnson and is a staunch antiwar advocate who has met with Saddam on several occasions in the past decade.

Another strategy would be for Saddam to plead insanity or infirmity to try to head off a trial altogether, although lawyers say that seems unlikely.

Assuming there is a trial, Saddam could claim he committed no crimes, or that his actions were justified to put down insurrection or defend his country.

Or, as in the trials arising from World War II, Saddam could try to shift the blame or turn the tables on his accusers.

Adm. Karl Doenitz, commander of the German U-boat campaign, received a relatively light sentence of 10 years at the Nuremberg war-crimes trial after claiming that he used the same warfighting tactics as did the Allies, including failing to pick up survivors after a submarine attack. Doenitz’s lawyers produced an affidavit from U.S. Adm. Chester Nimitz to back up this claim.

In Saddam’s case, he could claim Western countries, including the United States, willingly sold him weaponry and chemicals, and turned a blind eye to the consequences.

“He could try to leverage that, saying, ‘You gave me the weapons, did you expect I wouldn’t use them?’” University of Denver law professor Robert Hardaway, who favors a Nuremberg-style tribunal for Saddam, said in one of several recent interviews with legal experts.

Saddam might head off some charges, or at least make pursuing them uncomfortable, by pointing fingers at U.S. government figures or companies that had dealings with Iraq, said Douglass Cassel, director of the Center for International Human Rights at Northwestern University School of Law in Chicago.

“His lawyer could say, ‘We were the U.S. ally against Iran, and Secretary Rumsfeld himself came here to make friends,’” Mr. Cassel said, referring to meetings in 1983 and 1984 between then-White House Middle East envoy Donald H. Rumsfeld and Iraqi officials. “‘We’re going to have to subpoena Rumsfeld.’”

Saddam also could challenge the evidence against him, arguing that the paper trail showing his culpability is weak and witnesses unreliable, lawyers said. He could exploit any forensic lapses in the documentation of mass graves or other evidence of murder.

“Then, there is everything from denial that these things happened to ‘I didn’t know my underlings were performing these atrocities,’” said Donna E. Arzt, a Syracuse University law professor who assisted the prosecutor in a special war- crimes court in Sierra Leone.

Some top Japanese military leaders pleaded ignorance after World War II. Notably, Gen. Tomoyuki Yamashita, charged with wartime crimes in the Philippines, testified that he never ordered atrocities and that if crimes occurred he was powerless to stop them. He still was convicted and sentenced to death.

“One very reasonable possibility for Saddam is the ‘I wasn’t really in charge’ defense,” said Paul Rosenzweig, a scholar at the Heritage Foundation who has written about past war-crimes trials.

“That was rejected on both factual and philosophical levels,” in Yamashita’s case, and Saddam would probably have no luck with it either, Mr. Rosenzweig said.

Still, Saddam has nothing to lose by putting on a vigorous defense. He’s not likely to win his freedom, but he could save his life.

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