Saddam's Attorney on Defending the Ex-Iraqi Leader The trial of Saddam Hussein wraps up next week in Baghdad. Before heading to Iraq, Saddam's attorney -- former U.S. Attorney General Ramsey Clark -- stops by to discuss the defense strategy. Plus: Michael Scharf, the man who trained Iraq's tribunal judges, offers an assessment of the court's performance.
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Saddam's Attorney on Defending the Ex-Iraqi Leader

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Saddam's Attorney on Defending the Ex-Iraqi Leader

Saddam's Attorney on Defending the Ex-Iraqi Leader

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CONAN: Saddam Hussein's first trial is scheduled to wrap up next week in Baghdad. The former Iraqi president is charged with crimes against humanity for his role in the torture and execution of 148 people in the city of Dujail, north of Baghdad.

The killings came in response to what has been described as an assassination attempt in 1982. It's been a long, complicated trial for an untested tribunal court system. Judges were removed, lawyers assassinated, and proceedings interrupted, sometimes by angry outbursts from Saddam Hussein himself. And there remain questions of fairness.

In a few minutes, we'll talk with Michael Scharf, a legal expert and part of the team that trained the Iraqi judges. But first, we'll talk to Ramsey Clark, former United States attorney general, one of Saddam Hussein's trial lawyers. He joins us now from his home in New York City. And it's nice to have you on TALK OF THE NATION.

RAMSEY CLARK: Good afternoon. How are you?

CONAN: Very well, thanks. The defense team boycotted the last session, demanding greater security among other things. Will you and your team be in court next week?

CLARK: We didn't attend last week because of security, and we hope to see the president and the other defendants Saturday. The decision will be made at that time.

My impression is that the defendants believe that the risk to the attorneys is just not worth the price and it's already so interfered with the defense that unless there's a firm assurance of protection, particularly with another trial coming up, to go through this again would be impossible. We may not show up. I hope we will. My belief is that we ought to, and I'm prepared to.

CONAN: Three defense attorneys have been assassinated through the course of this trial. Given that, I know that you've said in the past this can't be a fair trial.

CLARK: Well, I think that's right. I mean, the trial's being conducted in a war zone. It's being conducted under all the pressures and excuses that war gives for wrongful conduct. The threats to the counsel and the obvious danger to counsel has been clear from the beginning and nothing's really been done. Their families have never received any protection.

The court, at least from December the 7th of last year, said it couldn't agree more that there ought to be relocations and families provided with enough to make out while their loved ones are trying these cases, and adequate protection for the lawyers in the interim. They offered them pistols at one time and offered to provide up to three guards, pay for them.

They never paid for any of the guards. They provided a few pistol permits, but when 20 men come in with automatic weapons, a pistol's only a danger to a person in possession of one.

CONAN: Yes. That aside, and of course that's a big that, but that aside, procedures in the court itself have they been fair, in your view?

CLARK: No. They've been a disaster, really. It's not easy, if you assume good faith. You've changed the chief judge three times. External pressures have been enormous. The case has been tried by a judge who comes from Halabja, which is most a famous Kurdish town for persecution and death during the administration of Saddam Hussein.

He had family members killed there and friends killed there, and he'd been twice sentenced to death by Baathist courts for opposition to the Baathist government, including the government of Saddam Hussein. Then the second conviction.

He's alleged to have said, and hasn't denied it - he hasn't denied any of these things - that night in 2004 on Iraqi TV he said you don't need a trial, you only need an execution, and he's been unwilling to hear any arguments.

He's told me time and time again you can make your argument later, but later never came. It's a mañana that has never arrived. So it's - the prosecution had, they call it an eight-month trial, but the prosecution took seven months at its leisure. The defense was jammed up into one month, May 15 to June 13, and trying to get witnesses in all the time.

Finally we had 27 witnesses testified and had a lot more we wanted, and the judge said if 27 witnesses can't prove the innocence of your client, 100 can't, which is a classic comment for human rights people to think about. There's no presumption of innocence and there's assumption that no witness has more to say than any other witnesses have to say.

That's the way it's gone all along. You can understand some frustration that the defendants have suffered because of that handling.

CONAN: Is - the chief defense lawyer told The New York Times that Saddam did order most of the executions at Dujail but had every right to do so. Is that the basis of the defense?

CLARK: He didn't order the executions in the sense that he just did that out of the blue. When you think about - this case is a serious mistake. They should never have brought this case. It probably isn't a case.

1982 was a very dangerous time in the Iran-Iraq war. Iran had pushed back into Iraqi territory from the initial surge of the Iraqis into Iran. Dujail is close to the border.

The Dawa Party, which is an Iranian party committed to overthrow the government of Saddam Hussein, of which the current prime minister of Iraq and the immediate past prime minister - Jaafari and Maliki are both members of the same Dawa party, which is the largest party in the present parliament and the largest Shia Party, and they were involved in this assassination attempt.

But it was two years, almost two years, it was 23 months from the time of the assassination attempt until the entry of a judgment of guilt and death - it was a mandatory death penalty for commission of treason in time of war and acts committed on behalf of the enemy, Iran.

So it was a mandatory sentence and it was nearly a year after that, after the case was reviewed by law professors and deans and judges in the peculiar fashion that they did it, that the recommendation was to enter an order. And the president, as a governor in this state, George Bush signed 154 death warrants while he was governor.

He signed them for minors and for women and for retarded people and for aliens in violation of the Vienna Convention on Diplomatic - he just signed them all. Saddam Hussein signed these 148 orders, but it was almost three years after the event. If this was real repression, you would have strung them up the first day.

CONAN: All right. One final question for you, Ramsey Clark, and that is about the tactics in the courtroom. I'm sure you know that they've come under severe criticism, defense tactics, as disrespectful, as disruptive.

CLARK: Well, there were plenty of disruptions. You know, I was a witness - supposed to be a witness - they took two days with me in the Chicago Seven trial, and my position on Bobby Seale was that he was just frantic because he couldn't have his lawyer. His conduct was caused by the conduct of the judge, and I think here, you either disrupt or you just sit there silently and wait to be hung.

CONAN: Ramsey Clark, thanks very much for being with us.

CLARK: Thank you.

CONAN: Have a good trip to Baghdad. Ramsey Clark, former U.S. attorney general, one of Saddam Hussein's trial lawyers joining us from his home in New York City. You're listening to TALK OF THE NATION from NPR News.

Michael Scharf is director of the International Law Center at Case Western Reserve University School of Law. He helped to train the Iraqi tribunal judges, he's an expert in international law, and he joins us now from the studios of member station WCPN in Cleveland. It's nice to talk to you again.

MICHAEL SCHARF: Hi, Neal. Good to talk to you.

CONAN: This was a test run for this new court. You called the trial one of the messiest in history. Has it played out in anything close to what you had hoped?

SCHARF: Well, it has been one of the messiest trials and mostly because of the tactics of the defendants and the defense counsel. It was interesting to hear Ramsey Clark talk about the Chicago Seven trial, a trial that was, in American history, one of the messiest.

And what happens when you try to prosecute somebody who is not really interested in getting an acquittal but rather in just wrecking the process is that it creates enormous challenges for the judges. But at the end of the day, this case ended up being not about the witnesses, but about the documents that were admitted into evidence and that were acknowledged to be factual. And then Saddam Hussein himself, in his famous I'm responsible speech, acknowledged that these documents were true.

And ultimately, what the documents showed - and these documents, by the way, are posted on the Case Law School Web site for anybody took at - what they showed is that in 1982, Saddam was attacked in Dujail. Then he ordered the destruction of the town, including the buildings, the water, and the date palms. He ordered the rounding up of 300 civilians. 50 of those died in interrogation, and he gave medals of honor to the interrogators rather than to prosecute them.

Two years later, as Ramsey pointed out, he ordered 148 of those people tried en masse in a one-day trial, and then a couple of months later he ordered all 150 of them executed, including some 10-year-old children.

And the only argument in this case really is about the law. It's not about the facts. And that makes this case not as big a concern about fair trial. So what's really important is the closing argument - the very closing argument that Ramsey Clark says he may be boycotting - because that's where the defense is going to be able to argue that it is legal for a ruler to do the kinds of things Saddam did in response to terrorists and insurgents, and that's where the prosecutor's going to have to counter and say no, you acted disproportionately. And that's where the judges are going to have to decide the case.

CONAN: But can - getting back to another point that Ramsey Clark made, can it be a fair trial when three defense attorneys are assassinated?

SCHARF: It was a terrible tragedy that these three were assassinated, but the saddest part of it is that they were offered security. At first, they didn't trust the U.S. government in Iraq, so they said we don't want your security, and that's when the first two were assassinated in October.

A compromise was worked out so that they were given money - and Ramsey's wrong. They were given money, they were given arms. They could choose their own security guards, much like rock stars or other professional athletes can choose their entourage.

And since that time no one was assassinated in the entire trial, including the prosecutors, the witnesses and the judges, until just recently Mr. Obeidi, who, for some reason, didn't have any of his security guards with him the morning that he was attacked.

But, you know, there have been trials in other dangerous places around the world, including in Central and Latin America with drug lord cases, even in the United States we've had some trials undertaken in high-security issues. They are difficult and the key is that there have to be measures to protect all of the participants, including the defense counsel. Those measures are now in place. It's not really a good excuse not to show up for the closing arguments.

CONAN: The idea of the trial was that Saddam Hussein should be seen to be - have a fair trial. In retrospect, has it been seen that he had a fair trial?

SCHARF: Well, in some ways the judges actually bended over backwards to make it look like he had a fair trial, for example by letting him speak whenever he wanted to in the courtroom.

Ultimately, the defense was given 45 days to prepare their case before the trial began in the first extension. There were many other delays to give more time for the defense. The trial only lasted 35 trial days out of eight months. Of those, 20 days were for the prosecution, 15 for the defense, although most of the defense were compacted in a month and a half.

The number of witnesses were about even. And then ultimately, the defense refused to submit their witness lists and their testimony became cumulative and repetitive, and the judge said look, I'm going to take a page out of the Yugoslavi tribunal, the Rwanda tribunal, the Sierra Leone tribunal, and say if there's nothing new you can present, we're going to move to closing arguments. And that's not necessarily a sign that this was unfair.

CONAN: Michael Scharf, thanks very much.

SCHARF: Thank you.

CONAN: Michael Scharf, director of the International Law Center at Case Western Reserve University School of Law, with us from member station WCPN in Cleveland. Obviously more on the Saddam Hussein trial next week, and more on the crisis in the Middle East later today, on ALL THINGS CONSIDERED from NPR News.

I'm Neal Conan, this is TALK OF THE NATION from NPR News in Washington.

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