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Michael A. Newton is a West Point graduate who serves as Professor of the Practice of Law at Vanderbilt University Law School. During his distinguished military career, Lieutenant Colonel (Ret.) Newton served in both the Clinton and Bush administrations as Advisor to the Ambassador-at-Large for War Crimes Issues at the U.S. Department of State, where he played a key role in negotiating the Statutes of the Special Court for Sierra Leone and the Elements of Crimes for the International Criminal Court. Newton advised Iraqi jurists as they drafted the Statute for the Iraqi High Tribunal, provided training to the Tribunal’s judges, and shuttled back and forth to Baghdad to provide assistance to the judges during the trial of Saddam Hussein.

Michael P. Scharf is Professor of Law and Director of the Frederick K. Cox International Law Center at Case Western Reserve University School of Law. As Attorney-Adviser for United Nations Affairs at the U.S. Department of State during the elder Bush and Clinton administrations, Scharf was instrumental in the establishment of the Yugoslavia Tribunal. In February 2005, Scharf and the Public International Law and Policy Group, an NGO he cofounded, were nominated for the Nobel Peace Prize by six governments and the Prosecutor of an International Criminal Tribunal for the work they have done to help in the prosecution of major war criminals, including Slobodan Milosevic, Charles Taylor, and Saddam Hussein.

Acknowledgments	p. ix
Prologue: High Crimes, High Drama	p. 1
Liberation	p. 9
The Genesis of Justice	p. 23
Hammurabi was an Iraqi: The Creation of the Iraqi Tribunal	p. 35
Proving Incredible Events	p. 64
Trial and Error	p. 83
Disorder in the Courtroom	p. 106
Judgment Day	p. 171
Appeal and Execution	p. 184
Echoes of Nuremberg: The Dujail Trial in Historic Perspective	p. 207
Conclusion	p. 219
Epilogue	p. 235
A Time Line of Events Related to the Dujail Trial	p. 239
Glossary of Key Legal Terms	p. 249
Notes	p. 265
Index	p. 289
Table of Contents provided by Ingram. All Rights Reserved.

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Excerpts

Chapter One

Liberation

As the world watched the enormous statue of Saddam Hussein al-Tikriti being pulled down in Iraq’s Firdus Square on April 9, 2003, the logical impression was that the repressive Baathist regime had ended and that Iraq now stood at the doorway of a new era. Though it looked quite substantial, the statue was merely a hollow shell bolted to upright steel shafts running up the legs. Like Iraq itself, the great monument fell far more easily than expected.

The Iraqi army had melted away under the destructive wrath of Operation Cobra II,1 which unfolded with surprising speed and momentum.2In the face of the military onslaught, the ruling Baath Party leaders either were killed or fled like startled rabbits and went into hiding. As Baghdad was liberated from the Baathist regime, thousands of Iraqis danced in the streets.

For more than three de cades, the Iraqi people had lived in the shadow of the dictator referred to by his given name, Saddam. (After the Iraqi custom, Saddam’s second name, Hussein, was his father’s first name, and his third name, al-Tikriti, indicated his place of birth.) Saddam’s image and will hung over the citizenry like a cloud of rancid cigar smoke. The Iraqi people could seemingly never escape his gaze as he looked down from the thousands of murals and portraits across the country. One Marsh Arab on the outskirts of Nassiriyah described the repressive malaise: "When Saddam was in office, we used to be afraid of the walls."3

As they toppled Saddam’s regime, the coalition soldiers felt they had given a great gift of freedom to the Iraqi people. Though many Iraqis were in fact grateful, they remained uneasy about the future. They urged their new American friends to come back when "the real Baghdad" is reborn— a place of vibrant markets, parties, feasts, and family gatherings.

One of the authors of this book (Michael Newton) was in Baghdad in December 2003, just eight months after the invasion. First-person references in this chapter are to him.

ONE OF THE FIRST Iraqis I encountered was a striking, dark-haired young college student who was working for the American administrators as an interpreter. When I asked her what she planned to do with her life after Saddam, she simply shrugged. All that she had known in her lifetime was an Iraq where privilege and tribe and power trumped hard work and individual innovation at every turn. The children of Baath Party officials enjoyed bonus points on their college exams and hence obtained admission to the schools of their choice. She explained to me that she had never imagined that her future could be determined by her dreams. It was only after some prodding and a sustained effort to gain her trust that the young student began to admit to the life goals and dreams that she had long repressed or dismissed as unattainable. She talked of boys and clothes and travel. She wavered between wanting a career in the fashion industry and one as a caterer, and it was in the very expression of her personal ambitions that the shimmering possibilities of a new Iraq became tangible and real.

In those first months after the fall of Saddam, a better life seemed so attainable for ordinary people. I listened as ordinary citizens began to tell me of their hopes after escaping the shackles of Baath Party rule; such words would have endangered their lives just months before. People told me of family members who had disappeared or fled under Saddam’s iron fist, while showing me worn pictures of their loved ones. One older woman secretively sought me out to ask whether the persecution of Christians could be prosecuted as a crime against humanity and to discuss freedom of religion and belief.

This early period of the occupation later came to be called the "golden months" because anything seemed possible. When confronted with the 2006 Iraq Study Group observation that "pessimism is pervasive," one administrator nostalgically harkened back to the early spring of 2003, a time in which "optimism was omnipresent." The victorious coalition had a brief period of unopposed opportunity to establish the building blocks of a new and better society. At the same time, the uncertainty that people felt about their future and the deep societal scars that remained even after the Baathist power structures imploded made it plain that the transition to a peaceful and democratic Iraq, positioned to enjoy the fruits of freedom, would be arduous and bumpy at best.

To close observers, it soon became clear that pre-invasion assumptions about the ease with which Iraq could suddenly become an island of prosperity and peace by transitioning into institutionalized norms of democratic governance had melted like ice in the withering summer heat. The Bush administration had pointedly decided early on that the U.S. military should not be in the business of "nation building." American planners had spent the most time on what turned out to be the least difficult task—defeating the Iraqi army. Very little planning had been devoted to the most daunting challenge—building a new democratic Iraq in the face of a mounting insurgency. The paradox of prewar planning was that there were far too few U.S. forces to secure and protect the hundreds of suspected weapons of mass destruction (WMD) sites, much less to prevent WMDs from being smuggled out of Iraq or being transferred to the terrorist groups; the preemption of such transfers had been one of the very purposes for the war.4

In the run-up to the war, the Americans largely failed to anticipate an extended presence or the need to engage in institution building from the ground up. The images of widespread looting in Baghdad lingered; American forces had been too thinly stretched to protect the treasures of the National Museum. Nor could they seal the borders with Iran or Jordan. coalition forces worked with little strategic guidance or concerted focus.

Superficial progress was nevertheless rapid. Freedom of the press was quickly restored; soon, 75 radio stations, 180 newspapers, and 10 television stations were established. Cell phone subscriptions exploded as Iraqis realized they could talk with each other without fear of being jailed. Satellite television was introduced to Iraq. During Saddam’s era, anyone caught with a satellite dish was imprisoned and forced to pay a fine of 100 dinars. Iraqi lawyers later apologized that the regime had prevented them from remaining aware of current legal developments, and they thirsted to catch up to the most modern conceptions. Plans were made to reopen the Baghdad Stock Exchange, and soon realized in June 2004. Western civilians flowed in to staff the coalition Provisional Authority, headquartered in Saddam’s ostentatious Republican Palace on the banks of the Euphrates. At the same time, Saddam’s shadow loomed in the consciousness of the people as his whereabouts remained a deep mystery. No one had seen him since the fast-moving armor of the U.S. Third Infantry Division had thundered toward Baghdad. Despite the trappings of progress, ordinary Iraqis remained bound in a sense of growing unease and disbelief.

As early as May 18, 2003, one of the most respected judges on the U.S. federal bench wrote during a visit to Iraq that "calm is slowly returning but families are still afraid.… Most of all they are afraid of an unknown future, afraid that Saddam will return or that the country will dissolve into anarchy because the Americans won’t stay the course."5 The insurgency became more organized and effective in conducting random acts of violence. Foreign fighters poured into the country with the express aim of killing and maiming Iraqi citizens to defeat the coalition forces by showing the limits of their strength. As summer bled into fall, more than three hundred American ser vice members had been killed.6 The guarded optimism that flowered during the spring of 2003 faded into a residue of uncertainty reminiscent of the fear that many Iraqis had experienced under the tyranny of the Baathist regime. Saddam remained at large as the tectonic plates of Iraqi society began to grind against the realities of running a nation and reestablishing order that could contain sectarian and tribal rivalries.

Internecine arguments increased as the Interim Governing Council (IGC) that had been quickly appointed by the occupation authorities began to meet. Rival political organizations quickly formed and jockeyed against each other in preparation for the inevitable rounds of elections that would distribute power. In many areas, the fissures that ran along tribal loyalty, family bonds, and religious perspective became the poles that attracted political support. Against this backdrop, the people of Iraq sustained a deep and visceral need to expose the crimes of the regime and witness an accounting for their suffering.

THE MANHUNT

American forces began to plan and execute a series of raids to capture or kill the leading Baath Party leaders who had escaped during the lightning-fast invasion of Iraq. Saddam was depicted as the ace of spades in the pack of cards handed out to deploying American soldiers. The ace ran wild as a succession of operations designed to capture him failed. Saddam had built his career on his persona as the symbol of a unified and proud Iraq standing up to the Americans and the United Nations. The resourcefulness of the Iraqi leader was legendary, and his ruthless drive to retain and regain power was almost mythical to the Iraqi people. Most knew that the allies had sought to kill him with specially planned military strikes during the war—yet, he survived and was still at large. Iraqis wondered if the charisma and drive of the leader whose entire image had been built on defiance of the United States could somehow be enough to propel him to recapture his throne and resume his domination of Iraqi society. The undercurrent of tension built as the insurgency blossomed into a full-scale and sustained level of violence that was itself destabilizing and frighteningly real for ordinary citizens.

A military task force was assembled with a nimble command structure and a unique blend of special operations and conventional forces. The military objective was to kill or capture Baathist leaders with deadly efficiency. Saddam’s sons Qusay and Uday—each with a $15 million bounty on his head—were killed on July 22, 2003, in a four-hour battle with U.S. troops in a hideout in the northern city of Mosul. Quietly, but with ever-increasing effectiveness, task force analysts began to map out the organizational dynamics of the social, family, tribal, and party connections that were essential to keeping Saddam in hiding. In what was dubbed "social network analysis" in the official counterinsurgency doctrine of the U.S. Army, military planners scraped together fragments of information and plotted the connections to construct a graphical chart of the insurgent infrastructure.7

The goal of social network analysis was to chip away at the enablers who supported Saddam and his coterie. The detailed compilation of a coherent underground support structure was painstakingly assembled as analysts charted the connections and characters that were sheltering Saddam. Meanwhile, Saddam’s aura seemed to grow as the weeks turned into months. Commentators across the Arab world mocked the United States as a toothless tiger, and the unease of the people seemed to deepen as fear of the regime’s possible return persisted. The reality was that Saddam was on the run and afraid, but fear of him lingered in the Iraqi consciousness. According to one anecdote during this period, an Iraqi policeman looked into the backseat of a taxi as it tried to enter a police compound near Tikrit—and saw Saddam himself hiding beneath a blanket. The man’s bladder emptied on the spot in a spontaneous reaction of fear and surprise.

Meanwhile, analysts inside the operations center tried to pierce this fog of fear and tribal loyalty as they pieced together a detailed diagram showing the structure of Saddam’s secretive security network. The chart of connectivity was mounted on a three-foot-square board and eventually included hundreds of biographical details and interpersonal linkages. Social network analysis goes far beyond mere descriptive data about the members of an insurgent organization; it seeks to show a picture of the social and personal interactions that sustain and feed an insurgency. This technique gradually increased understanding about how the insurgency was functioning and the ways in which Saddam was being sheltered. Commanders began to understand the trends and tactics employed by the growing insurgency as analysts made constant adjustments to the network template and constantly reassessed which critical data points were missing.

As the intelligence tips flowed in, mission after mission after mission came up empty. Soldiers began to embark on missions with what one member of the task force would later term a "bitter optimism" born of so many dry holes and empty efforts. Literally dozens of missions were launched based on reported information about Saddam’s whereabouts just hours prior. The seemingly unsuccessful missions contributed bit by bit to the planners’ understanding, which in the routine cycle of missions led to more operations. The network analysis expanded to generate new missions and shifting priorities. A team of six hundred soldiers from the Fourth Infantry Division commanded by Major General Raymond Odierno flowed in to augment the special operations forces, bringing new energy and enthusiasm to the repetitive missions. The task force continued to scour the area around Saddam’s hometown of Tikrit. The network of people preserving Saddam’s freedom was strongest in that area based on their personal loyalties and family bonds. The tightly integrated social structure also helped to prevent informants from bringing details to the attention of intelligence analysts because of their own fears.

The space in which Saddam could maneuver tightened in late November 2003 as U.S. commanders captured people they had been hunting throughout the summer. "This was the inner circle," Lieutenant Colonel Steven Russell, commander of the Fourth Infantry Division’s 1-22 Infantry Regiment, told Time magazine, and "we were taking pieces out of it." The upsurge in intelligence spawned an intensified series of raids that in turn produced new intelligence about the insurgency and Hussein’s possible location. Each mission gained additional information, which in turn shaped the next raid. The social network analysis chart became even more crammed with tidbits of useful information.

On December 10, 2003, the IGC announced its success in drafting a statute for a special tribunal designed to prosecute the crimes committed by the Baathist regime against Iraqi society. For the military, the announcement had little effect; the mission remained the same. General Odierno later described the critical intelligence breakthrough that flowed from the detailed social network analysis. According to him, during the ten days or so preceeding Saddam’s capture, American forces obtained key information from five to ten Iraqis who were key members of his enabling network, and "finally we got the ultimate information from one of these individuals."8Less than twenty-four hours after capturing a key member of the network of Sunni enablers that had supported Saddam’s efforts to remain at large, American interrogators obtained snippets of information that would change the course of the region. The source, whose identity remains a tightly guarded secret, was known to have had contact with Saddam and at first revealed only general details about locations where he might be hiding, followed by the revelation that he would likely be hiding underground.9

At around 5:00 p.m. the source finally revealed that Saddam had hidden himself in a farm house on the edge of an otherwise nondescript Iraqi village named ad Dawr. That location fit the profile that had been painstakingly cobbled together over the months; U.S. units had previously conducted searches less than three miles away.10 American commanders knew that they had missed Saddam by only hours on several other missions and hastily assembled the forces to respond to yet another promising bit of information.

THE CAPTURE OF SADDAM

Operation Red Dawn began at around seven o’clock on the evening of Saturday, December 13, 2003.11 After they cordoned off about two square kilometers surrounding the small farm near ad Dawr, about ten miles outside Tikrit, soldiers fanned farther out among the buildings, thinking that they could be following the worn script of previous failures. The Humvees drove along the road a short distance and then took a turn off the initial search area. One group redirected its efforts toward a set of ramshackle buildings that looked like a farm compound. There was an animal stench in the air, which mingled with the scent of some nearby fruit trees; the aromas created an odd perfume that was foreign and almost exotic to the Americans. There was no gunfire or enemy contact, but a growing sense of potential quickened their steps. The soldiers later described the place as "a dump." A shack stood to the left; beside it was an awning, sheltering more debris that was piled in corners and an equal amount of trash strewn throughout the area. Soldiers poked around the shadows and the piles of junk looking for anything that seemed out of place. They looked for the smallest indications, but did not sense that they were so close to Saddam’s hiding place.

The night was cold and crisp, and the sounds of soldiers not so discreetly searching for anything on the property carried clearly: desert trousers brushing past the vegetation, the sound of boots fading as more troops fanned out across the acreage, low murmurs of voices in the distance. The occasional beam of a red-lensed Maglite flashlight doing wide sweeps across the ground contrasted with the clear night sky and gave the soldiers a surreal impression that this was yet another wrong location at the wrong time. They went about doing their jobs with the detached professionalism born of training. They strolled through the trees, almost as though they were willing the ground to reveal something, anything, to get this one over with. So much expectation had been built up that this mission would be the one. Soldier M, who was there that night and has never spoken publicly about the mission, remembers the feeling during the search of the area: "It was easy to free-associate your thinking, and—if you let it—your mind would play tricks on you as well. If Saddam was supposed to be in one of two different areas, who’s to say that he couldn’t be hidden amongst the trees and scrub vegetation near the farm area, or worse—already gone? I felt relieved when I saw some of the same quick head turns that I was making, where a soldier thought he heard something.… It always seems that, in those circumstances when you want a fast resolution, your mind plays tricks on you. You hear things, sense things that aren’t there, but made the time pass faster. Innocuous boots walking on uneven ground suddenly gave pause, where you think it’s somebody making their way through the darkness away from us." The tension grew as the knot of soldiers heard a hollow "thunk" sound, and then a comrade called out to get their attention. "Hey!" he said. Adrenaline surged as the situation quickly became all too real.

A few more soldiers moved to the immediate area and watched as some kind of brick or block was pulled up and moved to the side of this newly discovered hole. Flashlights were passed up and stuck down into the opening. One of the soldiers said something along the lines of "I think there’s something down there." Almost at the same moment, another soldier found a tube sticking out of the ground less than ten feet away. The nervous tension almost hung in the air. The soldiers became extremely aware of every detail as their senses sharpened and time seemed to stand still.

The Arabic translator was standing right next to the hole. Soldiers asked him to order the person, if there really was one, to come out with hands up and surrender. The very real possibility of enemy contact quickened pulses. Leaning down over the hole, one of the Americans confirmed that "there’s definitely something moving down there." The translator yelled out that some grenades would be dropped down into the hole if the person didn’t get out. One of the soldiers looking down into the hole shouted, "Movement! We have someone coming up." More orders were yelled down, to drop any weapons and emerge hands first. A few of the soldiers right beside the hole grabbed at the body and yanked upward and outward; they deposited what looked like a homeless man onto the ground. Spines tingled as they realized the history that was being made. The wild hair and shaggy beard surprised some soldiers who imagined that Saddam would have kept his "presidential" appearance so as to marshal support while on the run and coerce the people to shield him as he eluded capture. When he was thrust face down on the ground, the interpreter yelled at him, "Who are you? What is your name?" The deposed dictator responded—after translation—"My name is Saddam Hussein, and I wish to surrender." Those closest by heard a spontaneous order from the American special operator to the translator that forever summarized the moment: "Tell him that President Bush sends his regards." What else needed to be said?

Around 8:30 p.m., the future of Iraq and the region was forever changed. The scruffy-looking man had once bragged about going down in a blaze of glory and defiance; he had terrified millions and buried thousands of his own citizens in mass graves scattered throughout the nation, yet all he could muster after hearing the translation was a dull, vacant stare. The troops pulled away the Styrofoam cover to reveal a hole about six by eight feet deep, barely wide enough for Saddam to wriggle into and lie down. Termed a "spider hole" by exultant military leaders, it provided just enough space to lie down; it was camouflaged with bricks and dirt, with an air vent that was sufficient to permit its occupant to remain underground for long periods. Saddam was unkempt and dirty. Inside the hole, American forces discovered $750,000 in one-hundred-dollar bills, as well as a pistol that was never fired.12

The former dictator was captured quickly and with no loss of life. "No way he could fight back," crowed General Odierno at a press conference held in Tikrit. "He was caught like a rat." By 11:00 p.m. Camp Raider Base was buzzing with excitement and triumph, and morale had soared. Saddam was searched, shaved, immediately identified by other detainees, and imprisoned while DNA tests were obtained for absolutely positive identification. One Iraqi woman said, "It’s like he’s a goat," as she watched images of the shaggy and obviously rattled tyrant being searched that were broadcast on worldwide television the next day.

The takedown was rich with irony, and even in those formative moments carried the seeds of controversy that would later infect the trial of Saddam. He was captured just across the river from one of his many ornate palaces. Iraqis delighted to see him emerge from hiding underground like an animal. The contrast showed just how powerless he was at the hands of the coalition forces. Although the insurgency could have been fed by images of a defiant and dignified Saddam being treated with cruelty by imperialist occupiers, the former dictator’s blank stare was captured in a photograph that inspired no nationalist fervor across Iraq or in the broader Arab world as it was broadcast around the world. Saddam would later try to rebuild his shattered image by appealing to the insurgents more than a dozen times as his televised trial progressed. Secretary of Defense Donald Rumsfeld, who had been publicly frustrated by the earlier failures to capture Saddam, exulted: "Here was a man who was photographed hundreds of times shooting off rifles and showing how tough he was, and in fact, he wasn’t very tough, he was cowering in a hole in the ground, and had a pistol and didn’t use it and certainly did not put up any fight at all." He added, tauntingly, that in "the last analysis, he seemed not terribly brave."13

Excerpted from Enemy of the State by Michael A.Newton.

Published in 2008 by St. Martin’s Press

All rights reserved. This work is protected under copyright laws and reproduction is strictly prohibited. Permission to reproduce the material in any manner or medium must be secured from the Publisher.

Excerpted from Enemy of the State: The Trial and Execution of Saddam Hussein by Michael A. Newton, Michael P. Scharf
All rights reserved by the original copyright owners. Excerpts are provided for display purposes only and may not be reproduced, reprinted or distributed without the written permission of the publisher.

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Enemy of the State : The Trial and Execution of Saddam Hussein

0312385560

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