4. John F. Burns and Eric Schmitt, “Generals Offer Sober Outlook on Iraqi War,” New York Times, May 19, 2005, online. See also Tavernise and Burns, loc cit.: “… with Iraq's unemployment rate at 30 percent or more, and as much as 60 percent among the poorest classes, a regular pay packet is a powerful incentive …. A common soldier's base pay can be up to $340 a month, rising to $950 for generals. Many doctors at Baghdad's best hospitals earn $500 a month or less, and many other Iraqis survive on $200 or less a month.” Andrew Hammond (“Iraqi Army Fears Insurgents Outside Walls of Base,” Reuters, August 8, 2005, online) quotes one recruit who makes it clear that we have simply “purchased” Iraqi participation in their new “army”: “Most ordinary soldiers join just for the salary.”
1. Walter Pincus, “U.S. Says More Iraqi Police Are Needed as Attacks Continue,” Washington Post, September 28, 2004, p. A23.
2. See the discussion by Jude Wanniski, on pp. 3-79 of the companion to the present volume, Neo-CONNED!, of the long-time support provided to the Kurdish Barzani and Talabani clans by third-party countries who were looking to encourage efforts to destabilize the Ba'athist government.-Ed.
3. John F. Burns, “Registering New Influence, Iran Sends a Top Aide to Iraq,” New York Times, May 18, 2005, online.
1. Hannah Allam and Nancy A. Youssef, “Shiite, Sunni Leaders Trade Barbs,” Knight Ridder, May. 19, 2005, online.
2. Agence France-Presse, loc. cit.
3. “Secretary Rumsfeld Press Availability with Mr. Barzani,” April 12, 2005 (http://www.defense.gov/transcripts/2005/tr20050412-secdef2483.html).
4. Indeed, as pointed out by Boudreaux (loc. cit.), “no Sunni Arab leader known to have direct ties to the insurgents has taken part in the political talks or been mentioned for a possible role in the government.”
1. “Iraq: The Real Election,” New York Review of Books, April 28, 2005, online.
2. John Zogby and Dr. James Zogby, “The Real Meaning of the Iraq Elections: A Closer Look at the Details of the Abu Dhabi TV/Zogby International Poll in Iraq,” Zogby International, January 31, 2005 (www.zogby.com/news/ReadNews.dbm?ID=958).
3. Ahmed and Nelson, loc. cit.
4. Burns, “Registering New Influence,” loc. cit.
1. According to a report posted on June 1, 2005, by Muhammad Abu Nasr, co-editor of Free Arab Voice, Kurdish sources told the London-based, Arab-language daily Al-Quds al-Arabi (edited by Abdel Bari Atwan) tensions between Barzani's KDP and the followers of Jalal Talibani in recent weeks flared over who should hold the post of “leader” of the Kurdistan separatist region [a post eventually granted to Barzani on June 12, 2005, in a what was widely seen as an exchange with Talabani for his having supported the latter's bid to become Transitional President of Iraq.-Ed.] As a result of these tensions, Kurdish sources blamed Talibani's forces for a May 31, 2005, attack on Barzani's motorcade. (See http://www.freearabvoice.org/Iraq/Report/report299.htm.)
2. Steve Negus and Dhiya Rasan, “Iraq Sunni Group Attacks 'State Terrorism,'” Financial Times, May 18, 2005, online.
3. Burns, “Registering New Influence,” loc. cit.
4. Richard A. Oppel, Jr., “A New Political Setback for Iraq's Cabinet,” New York Times, May 9, 2005, online.
1. Ibid.
2. The Monitor's View (editorial), “Iraq: More Than the Sum of Its Parts,” Christian Science Monitor, May 10, 2005, online.
3. Boudreaux, loc. cit.
4. Michael Jansen, “Sleeping Splendour,” Al-Ahram Weekly Online, Issue No. 625, February 13-19, 2003 (weekly.ahram.org.eg/2003/625/sc9.htm).
1. Debra J. Saunders, “Poster Women for Peace?” San Francisco Chronicle, November 2, 2003, online.
2. Boudreaux, loc. cit.
3. Ibid.
4. Ilana Mercer, “Liberation Has a Body Count,” Antiwar.com, November 17, 2004.
5. As if American hypocrisy needed no further illustration, a recent Daily Telegraph piece indicated that Iyad Allawi was again becoming popular as a possible Iraqi leader, in spite of his “unyielding, belligerent … almost thuggish” manner, because many Iraqis recognize that “it is those slightly dictatorial tendencies that a successful leader in so diverse a country needs to have” (Adrian Blomfield, “Allawi's Star Rises Again as Iraq Counts the Cost of Insurgency Terror,” Daily Telegraph, June 6, 2005, online).
1. Margolis, loc. cit. Evidence of Margolis's claim was proved in an interesting if roundabout way by the Zogby survey (loc. cit.) of January 28, 2005, which reported, “While a majority of Iraqis believe relations can be improved between Iraq and neighbors Kuwait, Turkey, and Iran, all ethnic and religious groups overwhelmingly rejected improving relations with the State of Israel.”
THE EDITORS' GLOSS: A perfect illustration of the “charges” now facing Saddam Hussein is the alleged “massacre” of villagers in the town of Dujail, 50 miles north of Baghdad. AP reported on June 13, 2005, that those killed numbered “at least 50 Iraqis …, in retaliation for a failed assassination attempt against [Hussein].” For its part, the London Sunday Times said (July 3, 2005) that “several hundred people were executed in cold blood in reprisal for a botched assassination attempt against Saddam,” while John Burns of the New York Times maintains (June 6, 2005) that 143 people were executed, following sentencing by Awad al-Sadoun, chief judge of the Revolutionary Court. Burns later reported (July 3, 2005) that the attempt on Saddam's life had been carried out by the al-Dawa party, a “conservative Shiite religious party … with an armed wing that had opened up terrorist attacks against Mr. Hussein's government,” and which had “strong support in Dujail,” a town, he claimed, where many “despised [Saddam] for starting a war with Iran, Iraq's Shiite neighbor.” The party regarded Saddam's visit to the town as “a chance to avenge the government's killing of hundreds of al-Dawa leaders and sympathizers.” Burns records how one al-Dawa Shiite “confessed to his father before he died that he was one of those who had shot at the Iraqi ruler.” Of 75,000 people in the town, 1,500 were arrested and somewhere between 50 to 143 were sentenced. Hussein reportedly told the people of Dujail, shortly after the incident, that “the people who had attempted to kill him were a small band of traitors, and that we don't want to confuse them with the good people of Dujail.”
So some unclear number of people were convicted of attempted assassination of the Iraqi head of state, sentenced to death, and executed. Yet the Iraqi Special Tribunal – of which, Burns says, the “Regime Crimes Liaison Office, an American Embassy agency” is “the legal and financial mainstay” – is going to send Saddam to the gallows for this “massacre.” But Burns admitted that Saddam's visit to Dujail amounted to “a venture into enemy terrority”; that he would be arraigned for dealing with sedition, attempted murder, and acts of terrorism there by unrepresentative, sectarian Shiites acting against their legitimate government is incredible indeed. It brings to mind what Ilana Mercer perceptively noted about another head of state in somewhat similar circumstances. “Over a million Americans died because Lincoln put down an insurrection in order to preserve the Union. If we hold Lincoln to the same standard the neocons hold Saddam to, then Lincoln must be universally acknowledged as one of history's greatest war criminals.”
CHAPTER
40
A Trial Indeed: The Treatment of Saddam Hussein vs. the Rule of Law
………
Curtis Doebbler, Esq., Ph.D.
“I think it will be the modern-day equivalent of a lynching in the 'wild west.' I think that everybody more or less accepts the trial and the sentence is a foregone conclusion.”
—Rime Allaf
Royal Institute of International Affairs, London
“Saddam Hussein already has been convicted in the court of international public opinion for crimes against the Iraqi people.”
—The Associated Press
“It goes without saying Saddam's trial is going to be one of the most important trials of the last hundred years, including Eichmann.”
—Paul D. Wolfowitz
/>
former U.S. Deputy Secretary of Defense
THE LEGAL TEAM representing Mr. Saddam Hussein, the President of Iraq, consists of individuals chosen by his family and acting under the umbrella of ISNAD,1 a body formed to coordinate the efforts aimed at ensuring respect for the rule of law in Iraq, and to draw attention to the illegitimacy and illegality of the Iraqi Special Tribunal (IST). The team consists of internationally distinguished lawyers, including former U.S. Attorney General, Mr. Ramsey Clarke, who joined the team in late December 2004, and former French Minister of Foreign Affairs Mr. Roland Dumas. The legal team has also been offered the support of numerous volunteer lawyers from the Arab world. It is headed by an Executive Committee whose administrative office is based in Amman, Jordan. The lawyers are currently all acting in volunteer capacities and on the basis of a power of representation provided by the family until they are allowed regular access to the President that allows him to make an informed choice as to the legal counsel he desires to represent him.
The first meeting between Mr. Hussein and a member of his legal team did not take place until more than a year after the start of his detention. Mr. Khalil al-Dolaimi, an Iraqi lawyer who is part of ISNAD, was allowed to meet with the President only under strict monitoring (both visual and audio) by U.S. military officials who were present at all times. Over four months after the original meeting, Mr. al-Dolaimi was finally able once again to meet with Mr. Hussein for several hours again under the inappropriate conditions of heavy surveillance.
This was only the President's second meeting with a member of the legal team after 16 months of illegal captivity. He has still not been allowed to see members of his family. He continues to be held by the United States government and its administrative arm in Iraq, the so-called Iraqi Transitional Government. Though the United States attempted to turn over “legal custody” of Mr. Hussein to the Iraqi “authorities” on July 1, 2004, under international law it is clear that both de facto and de jure custody is being maintained by the United States.
According to press reports, Mr. Hussein is being held at a location outside Baghdad, near Baghdad International Airport, within a vast American complex known as Camp Victory. Notwithstanding the two meetings he has been able to have with his lawyers, he is denied routine access to them and to the alleged evidence against him. Despite occasional statements that have been circulated in the press suggesting that he has been meeting routinely with his lawyers, no lawyers have met the President outside of the two permitted meetings, December 16, 2004, and April 27, 2005. Moreover, no lawyer chosen by the President has been able to meet him in confidence at any time since his arrest. At the same time the occupying forces continue to orchestrate a trial before the IST, a body that is neither competent, nor independent, nor impartial.
Despite these conditions, in which the rule of law is being significantly abused, efforts are continuing by the legal team and by ISNAD. Despite this context of the most dilapidated due process, some legal steps have been taken to try to encourage respect for the rule of law by the occupying powers in Iraq. Among these steps has been a petition for habeas corpus in the United States.
A Petition for a Writ of Habeas Corpus
On June 29, 2004, a petition for a writ of habeas corpus was filed with the United States Supreme Court by President Saddam Hussein (in legal terminology, the “Petitioner”), and served on U.S. President George Bush, U.S. Secretary of Defense Donald Rumsfeld, and L. Paul Bremer III, the former U.S. Administrator of the Coalition Provisional Authority in Iraq. All three officials (the “Respondents”) have had the opportunity to order and ensure that Mr. Hussein is treated in accordance with law, but have failed to do so, and have contributed to his continued illegal detention. The filing also alleges that the United States is violating its own Constitution, its military law, and international law. It recognizes that the United States' aggression against the people of Iraq is illegal and that the occupation is illegal. It focuses, however, on the illegality of the treatment of the Iraqi President.
It is noteworthy that the filing and service on U.S. government officials of the petition took place before an attempt was made to transfer “legal” custody of Mr. Hussein to the Iraqi Interim Government on July 1, 2004, and before Mr. Hussein's appearance before an Iraqi judge. Ordinarily, when this kind of petition is filed, a prisoner may not be transferred until it is dealt with by the judicial authorities. The United States' actions subsequent to being served can thus be construed as an attempt to remove the jurisdiction of the Supreme Court and to suspend the writ of habeas corpus. So viewed, these actions alone by the United States government are a serious affront to the United States' highest judicial body and show a significant disrespect for the rule of law. Additionally, it is clear from known facts and from press reports as recent as April 27, 2005 (Jamal Halaby, “Lawyer Says Saddam Hussein in Good Health,” Associated Press), that U.S. forces continue to maintain de facto custody of Mr. Hussein and determine who does and does not have the opportunity to meet with him. The U.S. government is therefore the effective authority over Mr. Hussein's continued detention, and thus the arguments that follow apply today no less than to the period prior to the attempted “transfer” of legal custody.
The petition is worth reading in full, but space limitations require that only its highlights are presented here. A review of the essential sections and their arguments will effectively illustrate the illegality of the treatment that was and still is being afforded Mr. Hussein, and will summarize the reasonableness of a request for a writ of habeas corpus in order to determine the legality of Mr. Hussein's continued detention.
The Court was requested to answer only two questions:
1. Is Petitioner's incommunicado detention, whereby he is prohibited access to family or to legal counsel, in accordance with law?
2. Is the turning over of the Petitioner to an authority that may reasonably be expected to violate his rights to a fair trial, due process of law, and his right to life in accordance with law?
The legal team believes that the answer to both questions is manifestly clear: no.
It may seem strange that the petition for habeas corpus was filed in an American court and not before some Iraqi institution. It should be remembered, though, that the petition was filed before the legal “transfer” of custody of Mr. Hussein to the Iraqi Interim Government, and thus there was no doubt that he was being held under U.S. authority both de jure and de facto. That the U.S. Supreme Court possessed jurisdiction over the matter was thus not in doubt. The relevant portions of the petition make this clear:
1. Petitioner brings this action under 28 U.S.C. §§2241(a) and 2242, and invokes this Court's jurisdiction under 28 U.S.C. §§1331, 1350, 1651, 2201, and 2202; 5 U.S.C. §702; as well as the Fifth and Fourteenth Amendments to the United States Constitution, the International Covenant on Civil and Political Rights (ICCPR), the American Declaration on the Rights and Duties of Man (ADRDM), the Third Geneva Convention Relative to the Treatment of Prisoners of War (GPW), and Customary International Law. For declaratory relief, Petitioners also rely on F. R. Civ. P. 57.
2. This Court is empowered under 28 U.S.C. §2241 to grant the Writ of Habeas Corpus under 28 U.S.C. §2242. This Court is further empowered to declare the rights and other legal relations of the parties herein by 28 U.S.C. §2201, and to effectuate and enforce declaratory relief by all necessary and proper means by 28 U.S.C. §2202, as this case involves an actual controversy within the Court's jurisdiction.
…
5. This case involves 28 U.S.C. §2241 that provides in relevant part:
(a) Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions ….
(c) The writ of habeas corpus shall not extend to a prisoner unless -
1. He is in custody under or by color of the authority of the United States …; or
3. He is in custody in violation of the Constitution or
laws or treaties of the United States ….
This case also involves the Due Process Clause of the Fifth and Fourteenth Amendment, U.S. Constitution, Amendments V and XIV; the Suspension Clause, U.S. Constitution, Art. I, §9, clause 2; Army Regulation 190–8 (Enemy Prisoners of War, Retained Personnel, Civilian Internees, and Other Detainees), OPNAVINST 3461.6, AFJI 31–304, MCO 3461.1 (1 October 1997); the GPW, 6 U.S.T. 3316, 75 U.N.T.S. 135 (12 August 1949); International Covenant on Civil and Political Rights, 999 U.N.T.S. 171, U.N. G.A. Res. 2200A (XXI), 21 U.N. GAOR. Supp. No. 16, at 52, U.N. Doc. A/6316 (1966); the American Declaration of the Rights and Duties of Man, O.A.S. Res. XX, adopted by the Ninth International Conference of American States (1948), reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V/II.82 doc.6 rhev.1 at 17 (1992).
The basic facts of Mr. Hussein's case are presented under eight points, numbered 6 to 13. These read as follows:
6. The detained Petitioner is the former President of Iraq. He was driven from power by an armed attack against his country by the United States which was ordered by the Respondents.
7. On 16 October 2002, a Joint Resolution of Congress authorized the Respondents “to use the Armed Forces of the United States as [the President] determines to be necessary and appropriate in order to … (1) defend the national security of the United States against the continuing threat posed by Iraq; and … (2) enforce all relevant United Nations Security Council resolutions regarding Iraq.” Joint Resolution 114, To Authorize the Use of United States Armed Forces Against Iraq, Public Law 107–243, 116 Stat. 1498 (16 Oct. 2002).
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