Western Lawyers Say Iraq Discarded Due Process in Hussein Trial

CAMBRIDGE, England — Nearly two years after an Iraqi court sentenced Saddam Hussein to death, new disclosures by Western lawyers who helped guide the court have given fresh ammunition to critics who contend that he was railroaded to the gallows by vengeful officials in Iraq’s new government.

These lawyers say the Iraqi prime minister, Nuri Kamal al-Maliki, forced the resignation of one of five judges in the trial only days before the court sentenced Mr. Hussein. The purpose, the lawyers say, was to avert the possibility that judges who were wavering would spare Mr. Hussein the death penalty and sentence him to life imprisonment instead.

The disclosures, made amid a steep decline in violence in Iraq, seem likely to raise fresh questions about the degree to which the Bush administration has succeeded in promoting democratic principles, including the rule of law, among Iraq’s new leaders. Inevitably, they will also lend new momentum to die-hard Baathists who regard Mr. Hussein as a martyr.

Long before Mr. Hussein was hanged on Dec. 30, 2006, with supporters of Iraq’s new Shiite-led government taunting him as the noose was tightened around his neck, a pattern of intervention by powerful Iraqi officials had been established. The court’s first chief judge was dismissed under government pressure for giving Mr. Hussein too much leeway for his courtroom outbursts, and the associate judge named to succeed him was removed under government threats before he could take over.

But until now, only officials involved with the court’s inner workings knew that a third judge, Munthur Hadi, was forced from the judges’ panel less than a week before the court delivered its verdicts, on Nov. 5, 2006. He was replaced by another judge, Ali al-Kahaji, who had heard none of the evidence in the nine-month trial. The replacement was favored, the Western lawyers say, because of his links with Mr. Maliki’s Dawa religious party, which had lost thousands of its members to Mr. Hussein’s repression, and because of Mr. Kahaji’s readiness to approve Mr. Hussein’s hanging.

A spokesman for Mr. Maliki on Wednesday denied any involvement by the Iraqi government in the judicial proceedings. “This is a judicial issue, and it’s up to the judges,” said Yassin Majeed, a close adviser. “I refuse to comment about it because the government has nothing to do with it. And whoever accuses the judicial system should talk to them.

“The government did not interfere, and we refuse to comment about it. The Americans know this is not our business; it’s the judicial system’s business,” Mr. Majeed said.

Judge Hadi could not be reached for comment. Three other judges who served on the court refused to comment, as did Haider al-Abadi, a member of Parliament and a close political ally of Mr. Maliki.

William H. Wiley, one of the lawyers now speaking out, worked in the Regime Crimes Liaison Office, the American agency that set up, financed and counseled the Iraqi High Tribunal, the special court constituted to hear cases against senior Hussein-era officials. Mr. Wiley, 44, a Canadian who advised Iraqi defense lawyers at the trial, said the Maliki government, not the liaison office or officials in Washington monitoring the trial, was at fault for subverting due process in Mr. Hussein’s case.

“The prime minister’s office was perpetually banging on the door, until they finally got control of the whole process,” Mr. Wiley said in a telephone interview from Brussels, where he now heads a legal consulting firm.

Mr. Wiley first referred to the ouster of Judge Hadi, without naming him, in an interview for a television documentary, “The Trial of Saddam Hussein,” which will appear on the series “America at a Crossroads” on PBS stations on Oct. 12. The documentary’s producer, Elyse Steinberg, made a copy available to The New York Times.

This correspondent, who is interviewed in the documentary, covered Mr. Hussein’s trial in Iraq and was not aware that Judge Hadi had been forced to resign until the documentary was shown to The Times.

Mr. Wiley linked the Iraqi government’s manipulation of the Hussein trial to the war’s most discouraging moments. The last-minute replacement of a judge, the appeals process that was rushed to completion barely a month after the trial court’s verdict, and Mr. Maliki’s decision in the early hours of Dec. 30 to sign an order for Mr. Hussein’s execution despite insistent American objections that legal requirements for the hanging were still incomplete — all came when the American war effort was at its lowest ebb.

Many American commanders in Iraq were convinced the war was being lost. By then, Mr. Wiley said, many at the liaison office, mostly Americans, had concluded that the proclaimed ideals of due process for Hussein-era officials were unrealizable in the face of powerful Iraqi officials who thirsted for vengeance and intervened repeatedly.

“Fatigue had set in,” Mr. Wiley said, “and the American presence as a whole had been worn down by the violence, by the heat, and by the Iraqis.” He added, “Whenever the Americans pushed them, they pushed back twice as hard. Basically, the Iraqis outlasted them.”

Similar accounts of the replacement of Judge Hadi were given by an American lawyer who worked on the trial and by a Western legal expert familiar with what had happened. Both spoke on the condition of anonymity because of the political sensitivities involved.

The case that sent Mr. Hussein to his execution was rooted in a failed attempt to assassinate him in July 1982, at Dujail, north of Baghdad. He was convicted of crimes against humanity in the reprisal deaths of 148 men and boys from the town, although the trial left unclear the extent of his personal involvement.

Mr. Hussein’s hanging nullified plans to seek the death penalty for him in several bigger cases, including the Anfal trial, involving the killing of tens of thousands of Kurds, some by chemical weapons, in a military crackdown that he ordered in northern Iraq in 1988.

The secrecy about Judge Hadi was made possible by the court’s ruling that the identities of all but the chief judge on the five-judge panels at the trials should be withheld from public disclosure, to protect the judges and their families. In the PBS documentary, Mr. Wiley said that “other members of the chamber,” apparently another judge, had told Mr. Maliki’s office that Judge Hadi was “relatively soft” during deliberations on the verdicts and sentences for the eight Dujail defendants and was leaning against a death sentence for Mr. Hussein.

At the time, court officials attributed Judge Hadi’s departure to ill health. One of the lawyers interviewed for this article dismissed that as a smoke screen and said that officials in Mr. Maliki’s office had in fact threatened Judge Hadi with the loss of his tribunal job and his pension, as well as with eviction, with his family, from housing in Baghdad’s heavily fortified Green Zone, tantamount to a death sentence for anyone involved in prosecuting Mr. Hussein.

“The prime minister’s office had identified what they perceived to be the weak link, and he was removed and replaced by a hard-liner,” Mr. Wiley said.

Mr. Wiley said the Iraqi government’s moves to ensure that Mr. Hussein went to the gallows were followed by even more blatant manipulation when Mr. Maliki’s office pressured the Dujail appellate court to overrule the life sentence given to Taha Yassin Ramadan, one of Mr. Hussein’s most powerful associates, and order that Mr. Yassin, too, be executed. He was hanged on March 20 last year.

In articles for legal journals and other forums, other lawyers from the liaison office have begun to voice views similar to Mr. Wiley’s.

Eric H. Blinderman, a New York lawyer involved in setting up the tribunal and in the Dujail trial, declined to discuss the replacement of Judge Hadi. But he referred this reporter to an article for a forthcoming issue of the “Yearbook of International Humanitarian Law,” published by Cambridge University Press. In it, he writes that “the Iraqi government ran roughshod over many constitutional and legal proscriptions in its haste to execute Saddam Hussein.”

For those who worked on the Dujail trial, he said, “and who wished for it to mark a break with the barbarism which characterized the regime under Saddam Hussein, these events were tragic.”

“They were not tragic because a brutal dictator was put to death without proper legal controls,” he continued. “They were tragic because they demonstrated once again that fair and neutral justice and more importantly the rule of law in the new Iraq is not terribly different than it was in the old Iraq.”

Source: The New York Times