What Should Be Done With Saddam?

In this space I have written about the relation between's Saddam's capture and the success of the so-called War on Terror. In the months following the Iraqi invasion, opponents of the war pointed out the irony of the coalition's inability to locate the Hitler du jour. Predictably, when Saddam finally was captured, the war hawks gloated as if this proved their point. (To the best of my knowledge, no war critic ever said, ' U.S. troops will never capture Saddam Hussein, and that's why I oppose this war.')

But now that Saddam is safely in custody, a new argument has begun: What do we do with him? Inasmuch as our newly refined reason for invasion (i.e. the reason now emphasized since the WMDs never turned up) was the liberation of the Iraqis from a brutal dictator, and to a lesser extent the installation of a Western-style representative democracy as a model for Middle East stability, you would think that the neocons would favor either (a) trying Saddam in a Western court, subject to all of the benefits of our superior culture and legal tradition, or (b) installing a Western court in Iraq and trying Saddam there, in a jury composed of 12 Iraqis (ideally ones who have never heard of Saddam or his alleged crimes).

Actually, the above two suggestions are intended as a joke; no conservative commentator (to my knowledge) is seriously suggesting anything like this. Indeed, Bill O'Reilly recently wrote an op-ed piece satirizing a publicized trial in which Saddam hires the likes of Johnny Cochran. (O'Reilly's disgust with American 'justice' didn't stop him from supporting the war, of course.)

Of course, if it's yuks you want, you can't miss David Horowitz's take. Now in fairness, this is from his blog, so we can't be sure how tongue-in-cheek it is meant. (I for one think he's as serious as cancer.) After Saddam's capture, Horowitz suggested:

Put [Saddam] on trial; then put him in a plastic shredder. Tell him we're going to do this first; maybe he'll make our search for the WMDs shorter. Then put him in the shredder anyway. His lies killed everyone who died in the war we're in. Ours will only kill one, and a deserving one at that.

It's enlightened, noble wisdom such as the above that reassures me in my country's quest to force culture on those Arab savages . . . .

In a more thoughtful piece, 'Justice for a Despot,' Michael Radu rejects the claim that the Iraqis cannot be trusted to give Saddam a fair trial, and in particular Human Rights Watch's request, 'No Political Show Trial for Saddam Hussein.' Radu writes:

By all standards, Saddam Hussein is one of the worst mass murderers of recent times'not an 'alleged' or 'suspected' murderer. If he does not belong in the company of Stalin, Mao, or Hitler, it is only because there were not enough Iraqis to kill to put him in this first rank. HRW's likening of a trial that has not even begun yet'the Iraqis' trial of this tyrant'to Stalin's show trials of the 1930s is absurd. It casts Saddam's victims in the Stalin role. It is Saddam, not they, that are in that role here. As even HRW admits, his crimes include genocide against Iraqi Kurds, the use of chemical weapons against Iranian troops and Kurdish civilians'[etc.]

First, let's deal with the Hitler et al. comparison. Although it's difficult to be sure you're comparing apples with apples, I think it's safe to say that Saddam Hussein was not one of the worst killers in the 20^th Century, even accounting for population sizes. According to R.J. Rummel's estimates, from 1963 - 1987, Iraq 's Baath party killed about 189,000 people, or 7,875 per year. From 1949 - 1987, the Communists in China killed about 35 million people, or 921,000 per year. (Note that we're comparing the number of a country's 'own people' being killed. Also, the cut-off year is 1987 because that's where Rummel's figures end; this number therefore doesn't include some of Saddam's alleged atrocities.) That means the Chinese Communists killed about 116 times more people per year than the Baathists. Now Iraq's population (in 1997) was 22.2 million people. That means China's population (in 1997) would have to be roughly 2.5 billion people if the Chinese were no more bloodthirsty than the Baathists. But China's population was only 1.3 billion, and that's a 2003 estimate. So according to these ballpark figures, it looks like the Chinese Communists were more ruthless killers than the Baathists. Probably the worst of all is Pol Pot, as the Khmer Rouge regime killed roughly 2 million Cambodians, at least one-fifth (some estimates say one-third) of that country's total population.

What's my point? Am I saying Saddam is a nice guy? Of course not. After all, I think Jimmy Carter was the leader of a gang of thieves and killers (i.e. the U.S. federal government), so I'm certainly not excusing the actions of a thug like Saddam. But what I am saying is that the neocon war hawks are, once again, playing fast and loose with the facts when they claim that Saddam Hussein is today's Hitler. This claim is all the more important as the ostensible reason for going to war'i.e. to prevent Saddam from using his WMD on us'is becoming less and less tenable as the months go by. At least if the American people can be convinced that they prevented another Holocaust, they will feel good about their country, remembering the 'Never Again' motto that has been drummed into them since grade school.

Besides his factual inaccuracy, there is a deeper problem with Radu's analysis. Notice his use of quotation marks around the words alleged and suspected. Radu's general argument is the following: 'We all know Saddam is guilty, so at this point a trial is a mere formality. What was wrong with the show trials under Stalin is that innocent people were convicted. It's okay for Iraqis to have a trial in which the outcome is certain beforehand, because we all agree with this outcome.'

Does this type of reasoning seem consistent with cherished notions of Western jurisprudence? Is it really true that only innocent people have the right to a fair trial? To switch to a consequentialist argument'since neocons don't care about principles, only results'does anyone think that the innocent can retain their rights in a regime where the universally despised can be tried by public opinion?

What Radu fails to acknowledge is that one of the primary purposes of a trial is to reassure outsiders that guilty people have been fairly convicted, and in particular that the evidence used to reach the verdict is legitimate. If an Iraqi mob were to rip Saddam apart limb from limb, this would not prove that he is guilty of war crimes. (After all, what does Radu think would happen to George W. Bush if he were turned loose in Harlem and none of the residents feared retaliation for their actions?)

Don't misunderstand me: I am not claiming that Saddam is innocent of the many atrocities of which he has been accused. What I am saying is that the people who have made these charges are primarily those who favored the invasion, and hence are biased. By the very same token, of course, most of the people downplaying the brutality of Saddam are those who opposed the war, and are likewise biased. I for one am certainly in no position right now to say whether Saddam is guilty or innocent of war crimes, and I'm confident that pundits like Michael Radu are not qualified either.

Radu inadvertently acknowledges the importance of consensus when he writes, 'As even HRW admits, [Saddam's] crimes include genocide against Iraqi Kurds . . . .' In other words, Radu is appealing to those who agree that Saddam has committed these alleged atrocities. But some intelligent, apparently well-informed people, such as Jude Wanniski, dispute the stories of Saddam gassing the Kurds. Again, please don't misunderstand me: I am not saying that I personally think that Saddam did or did not gas the Kurds. This is precisely the sort of thing that must be decided in a fair trial, not in CIA memos or Internet articles.

But let us return to Radu's article. He makes the strange argument that a trial before European jurists who do not deliver the death penalty would not satisfy Iraqis, because 'Iraq is an Arab country with specific cultural and legal traditions quite different from those of Belgium or Sweden.' Such a European trial would 'only serve as another example of Western imperialism, especially for those Iraqis who were victimized by Saddam.'

Now at this point I'm confused: Western imperialism is okay when it comes to removing a dictator, but not when it comes to trying him? If Radu were merely pointing out a contradiction in the U.N.-lover's worldview, that would be one thing. But I think he intends his observation as an independent argument for his own position.

Typical of most neoconservative pieces, Radu ends with an arbitrary policy prescription and an appeal to saving American lives:

Why the Iraqi Governing Council suspended capital punishment is unclear, and was probably misguided, but the Iraqis have the natural right to lift that suspension. The sooner they do, and the sooner Saddam is tried and executed, the better. An ideal Baghdad court would be composed of five judges'a Shia, a Kurd, a Marsh Sunni, a (secular) Iranian, and a Kuwaiti. The longer Saddam lives, the more Iraqis and Americans are going to die'and that, more than utopian 'evolving international standards' or [Amnesty International] anti-capital punishment paranoia, should be decisive.

My only comment on the above is that apparently affirmative action is okay when it comes to foreign affairs. We're in a war, after all.

* * *

'Okay, wiseguy,' you might ask, 'what should be done with Saddam?'

My honest answer: I don't know.

Before you scoff, let me ask some other questions: What should be done to improve the fuel efficiency of cars? How many apartment buildings should be built in Boise next month? Should another Wal-Mart open up in Waco? What should be done to exploit the minerals on the ocean floor?

If you asked me any of the above questions, my answer again would be, 'I don't know.' But by this I do not admit my relative ignorance; in fact no individuals know the answers to the above questions. Even those who must presume to know'e.g. the people running Wal-Mart'might be wrong. Only in a competitive market system can the answers to such questions be discovered over time, through the profit and loss test.

The sad fact is that governments have hijacked legal systems and thus perverted the execution of justice. Contrary to popular belief, a private legal system, based on voluntary contract and respect for property rights, is not only feasible but would be vastly superior to the State's version.

If there were competing, private judicial systems in widespread use, these organizations could 'try' Saddam Hussein and other tyrants. Even if the verdicts carried no sentences, they would provide disinterested, objective assessments of the alleged crimes of various politicians. So long as military superpowers continued to invade other countries and incarcerate their rulers, the opinions of private judges would of course not affect what actually happened to the tyrant in question; as always, politics would decide that. But it would at least give an objective reference for serious political and legal scholars, and would mercifully curtail the rhetoric of war hawk pundits.