Saddam's Trial

Eric Posner (the son and faculty colleague of Richard) addresses the matter of how fair Saddam's trial ought to be. Two concerns, raised by other parties, are that there is "no requirement to prove guilt beyond reasonable doubt", and that there are "inadequate protections for the accused to mount a defense on conditions equal to those enjoyed by the prosecution." Posner addresses them:

Saddam is not an ordinary criminal defendant, and so there is no reason to think that fairness requires that he enjoy ordinary criminal defense protections. Indeed, there is a respectable argument that he deserves none at all. If the function of criminal procedural protections is to prevent the wrongful conviction of innocent people, then there is no reason to apply them to Saddam, because we know that he is not innocent, and indeed that he deserves the harshest punishment that the criminal justice system metes out, whether that is death or life imprisonment.

Due process is not a set of rigid entitlements, but a function of several factors that must be balanced. The Supreme Court identified them in Matthews v. Eldridge (1976):

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Posner argues for more due process for Saddam partly on the basis of the importance of credibility:

But “fairness” here is not about protecting Saddam from wrongful conviction. It is about ensuring that the message that the trial sends is credible. The reason for allowing Saddam or his lawyer to conduct cross-examination, for example, is that otherwise people might disbelieve testimony about his crimes that is in fact truthful. Note that the standard of proof, which is criticized by HRW, really doesn’t matter. The judges will and should convict Saddam, and if they do so under a weaker standard of proof, we nonetheless know that they could have done so using a higher standard of proof – no harm, no foul. It doesn’t matter whether judges or jurors convict Saddam as long as someone convicts him. What matters is that the Iraqi people believe that the conviction was justified by the evidence.

This factor could fall within the third one highligted in Matthews. There are countervailing government interests, of course. There is the need to assure the Iraq citizenry that justice can be meted out. There is the need to prevent Saddam from excessive grandstanding that might be seen as legitimizing surviving dictatorship. There is also the need to bring a conclusion to a trial that is likely to fuel tension and instability.