Inside Saddam's Defense Strategy

Saddam Hussein lived up to the meaning of his first name ("one who confronts") on the first day of his trial by an Iraqi Special Tribunal, Wednesday: He denied the court's legitimacy, and challenged the presiding judge any time it was suggested that Saddam was no longer head of state in Iraq. Time and again, he got in the face of chief Judge Rizgar Mohammed Amein, a Kurd, over how he should be addressed, never hiding his contempt for the proceedings: "This court is false and whatever is built on a false basis is false," he said once, after being asked to identify himself. "I am the president of the Republic of Iraq." He took umbrage when the judge suggested he was, in fact, the "former" president of Iraq, interjecting that this was the judge's interpretation, not his own. Once the hearing was over, two guards moved to take his arms. He shook them off and engaged in a tense stare down with them before he finally exited the dock flanked by guards, but untouched. Once outside the room, Saddam turned to the chief guard and said: "I am the President of Iraq. You can't grab me like that."

And that, in a nutshell, seems to be the crux of his legal defense.

Saddam has been indicted for the 1982 murder of 143 men from the small village of Dujail, following an assassination attempt on the dictator. Hundreds more were imprisoned and tortured. Saddam's defense, however, seems to rest on the fact that he was grabbed "like that," by U.S. soldiers back in December 2003, and was now before a court set up to carry out victor's justice.

That theme was echoed by Saddam's lead defense attorney, Khalil Dulaimi. "This court is illegitimate and unconstitutional," said Dulaimi. "It is created on false foundations, and while those who are in charge of it are trying to improve its image, we still contest the legitimacy of this court."

Interestingly, Saddam, whose official biography says he has a law degree from Cairo University, probably made a mistake by entering an "innocent" plea on Wednesday. By doing so, says Badie Izzat, defense counsel for former Iraqi deputy prime minster Tariq Aziz, Saddam tacitly accepted the court's legitimacy. If his strategy is to deny that legitimacy, better for Saddam to have said nothing.

Dulaimi plans to argue that the court was set up under foreign military occupation, by the Coalition Provisional Authority, overriding the laws of Iraq in violation of the Geneva Conventions. He will also argue that as a head of state, former or not, and as such immune from prosecution. The defense will also contend that the men killed after the Dujail attack had all been found guilty under Iraqi law, and that Saddam's involvement was limited to signing their death warrants — something, Dulaimi notes, that President George W. Bush did for more than 150 people when he was governor of Texas.

Another aspect of the defense strategy will be the "no-experience" argument: "This is the first time we've had a trial in Iraq for crimes against humanity," says Izzat. He and Dulaimi argue that they haven't received the training in international human rights law that the judges received in the U.S., Britain and Australia, so the proceedings cannot be fair. "We have no experience," says Izzat.

It's unlikely that any of these three lines of defense will work. Saddam may hope to follow the courtroom strategy of fellow apprehended dictator Slobodan Milosevic, but Judge Amein may not allow such theatrics, filibustering and hectoring of witnesses in his courtroom. Indeed, the refusal to recognize the court may be less a legal strategy than a political one, playing to Arab resentment toward the U.S. invasion both inside and outside Iraq. Izzat says that when he visits Aziz, who is being held in the same facility as Saddam, the bombs and gunshots of the insurgency are easily heard. By further stoking resentment among Iraqi Sunnis' nationalist and in the wider Arab world, Saddam aims to rally support for the Sunni-led insurgency and make the American stay in Iraq even more painful.

"Every human being has hopes, even in the last days of his life," says Izzat.

As a legal strategy it may be limited, but as a propaganda swan-song it will allow him to paint himself in the great tradition of Arab heroes who went down fighting in the face of overwhelming force. But the court proceedings will likely also allow his victims to present their own narrative, which may undermine Saddam's bid for the mantle of Arab martyr.