Saddam lives.(legality of trial and possible conviction of former Iraqi dictator Saddam Hussein)

NEW YORK, OCTOBER 5

IT seems curious that as long ago as March 2003, we tried to kill Saddam Hussein. We had it all worked out that he was in hiding at a particular dwelling in Baghdad, and we launched a missile attack against it. Our eagerness was such that we were willing to initiate the military engagement against Iraq hours before general operations were scheduled. The clouds of doubt on the legality of the war weren't quite so vividly drawn, in March '03, the U.N. position being that we needed a supplementary vote to proceed, the U.S.-Brit position being that existing resolutions were actionable. In any event, our anxiety then to kill Saddam Hussein is in sharp contrast to our desire now to keep him alive until some judicial body (unspecified, at the moment) escorts him--where? To the gallows? To another jail?

A formal trial began in July and faced immediate difficulties. To begin with, there is the question of the detachment of Saddam Hussein from his large executive retinue. We have an estimated 5,500 Iraqis under lock and key and have not yet arrived at a judgment on how many of them are to be tried as criminals. But we did train particular attention on eleven people in intimate association with Saddam Hussein, and right away the question arose whether they should all be tried together.

This would not mean necessarily that they would be tried en banc. We could proceed as in Nuremberg, laying down the corporate case against the Saddam regime, and then enunciating, one by one, the specific liability of each individual defendant. In Nuremberg there were 22, and the sentences varied from hanging (11) to exoneration (3).

By what standards should Saddam be charged? At Nuremberg we articulated a law that did not exist, a law against wars of aggression. By some readings, we engaged therefore in ex post facto proceedings strictly forbidden by the U.S. Constitution. ...