- The Washington Times - Monday, May 10, 2004

Time is out of joint. The miniscule percentage of American soldiers and officers implicated in prisoner and detainee abuses at Abu Ghraib and elsewhere confront charges, trials and punishment that earmark the rule of law. That incriminating photographs and videos will be manipulated to aid the enemy in the Arab and Muslim worlds has been no deterrent. As Secretary of Defense Donald Rumsfeld elaborated last Friday before Congress: “We know what the terrorists will do. We know they will try to exploit all that is bad and try to obscure all that is good. That’s their nature, and that’s the nature of those who think they can kill innocent men, women and children to gratify their own cruel will to power… .”

Meanwhile, Saddam Hussein, Muqtada al-Sadr and scores of their villainous lieutenants complicit in hideous war crimes, crimes against humanity and sister abominations chirp. Their trials are nowhere in sight, a monumental absurdity that should end.

The rule of law symbolized by the United States and the rule of terror symbolized by Saddam Hussein occupy different moral universes. In the United States, both private and government criminality is rare. It is never official policy. Moreover, the culprits are customarily apprehended, tried and punished with complete transparency despite political or international embarrassment. Secretary Rumsfeld thus explained to the Senate Armed Services Committee: “[P]art of what we believe in, is making sure that when wrongdoing or scandal do occur, that they’re not covered up, but they’re exposed, they’re investigated, and the guilty are brought to justice.” Additionally, the secretary announced the appointment of a blue ribbon independent review board to scrutinize within 45 days “the pace, the breadth, the thoroughness” of the ongoing military investigations of the abuses “and to determine whether additional investigations or studies need to be initiated.”

In Saddam’s Iraq, terror was official policy. Bribes and politics controlled 99 percent or more of judicial decisions. Kurds were brutalized in the north; Shi’ites were oppressed in the south; and Sunni dissenters were exterminated in the center. During three decades of repression, Saddam and his Ba’ath party wretches were responsible for approximately 1 million extrajudicial killings, i.e., genocide on the installment plan. Due process and government accountability were alien concepts.

The stark contrast between the rule of law and rule by terror explains why Iraqis greeted America’s liberation of their country from Saddam’s clutches with virtual universal glee and gratitude. But the Bush administration has squandered that priceless reservoir of indigenous good will during the post-Saddam occupation of Iraq. The rule of law and democracy both have been shortchanged to accommodate an ill-conceived June 30 exit strategy. Popular sentiments have reversed, multiplying the strength of extremist clerics like al-Sadr. And the Iraqi people will become further estranged from the United States and its democratization mission by non-stop publicity over Abu Ghraib.

The best counter is to rivet them on Saddam’s dystopia through expeditious and televised trials of Saddam and 50 to 100 of his most ruthless criminal cohorts. The trials would renew the appreciation of Iraqis for their liberation, and boost their wavering resolve to sacrifice and to fight against terrorists, Ba’athists, and Khomeini-like grand ayatollahs for democracy and the rule of law.

The United States, however, has foolishly yielded the trials of Saddam, al-Sadr and numerous other major criminals to whatever post-June 30 Iraqi regime is appointed by United Nations envoy Lakhdar Brahimi or his successor. The Brahimi appointees are scheduled to serve as a caretaker government and confined to preparing for popular elections of delegates to draft a permanent democratic constitution next January. Optimistically assume that neither extremist violence nor Kurdish secession shipwrecks these plans. The earliest date, nevertheless, to expect Iraqis with international assistance to prosecute Saddam, his inner circle or al-Sadr would be 2006, much too late to arrest the propaganda value of Abu Ghraib to enemies of the United States, Iraqi democracy or the rule of law.

The United States should not tolerate such prosecutorial delay and entrust the outcomes to the chanciness of Iraq’s future sovereignty. President Bush should thus order a swift prosecution of Saddam and sister suspects before a United States military or civil tribunal. The trials should satisfy due process, including a right to defense counsel, proof of guilt beyond a reasonable doubt, and an opportunity to present exculpatory evidence. Cameras should be permitted. Every picture of an Abu Ghraib abuse would be juxtaposed to a gruesome Saddam atrocity, such as chemical weapons against Kurds and systematic rape, torture, mutilations and assassinations.

The trials of Saddam and co-criminals conducted by the United States in a timely fashion would more effectually impress on the minds of Iraqis a lively sense of the beneficence of democracy and the rule of law than has been achieved by endless constitutional law lectures delivered by academics and Justices of the United States Supreme Court.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and The Lichfield Group.

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