Vanderbilt Lawyer - Volume 37, Number 2

Book Excerpt: Enemy of the State

Enemy of the State

When Mike Newton joined the faculty of Vanderbilt Law School in 2005, he was in the midst of a difficult assignment as an advisor to the Iraqi High Tribunal. Iraqi politicians had begun the effort to create a specialized court to prosecute leading Baathists in December 2003, while Saddam was still on the run from coalition authorities. Professor Newton had spent the previous year and a half advising Iraqi judges as they prepared for trials of those who had oppressed Iraq. "Iraqi judges claimed that 'Saddam was the real occupier of Iraq' because his regime had displaced the rule of law," Newton recalls. "They hoped to demonstrate a model of due process grounded in the most modern human rights principles. But, in contrast to their hopes, the first trial before the Iraqi High Tribunal was one of the most chaotic in world history, and it certainly failed in the short term to serve as the unifying focal point for a revitalized Iraqi civil society."

At Vanderbilt, Professor Newton quickly put students in his first International Law Practice Lab to work analyzing issues encountered by the Iraqis and the U.S. Department of Justice during and after the trial. "My students provided comparative legal analysis for a number of difficult issues that informed the reasoning of the Iraqis as they issued extensive judicial opinions for the first time in the region," he says. Newton made four trips to Iraq from 2005 to 2007 to train and advise Iraqi judges and to help lay the foundation for the trials that would continue after Saddam's conviction and execution in 2005.

Newton and fellow Tribunal advisor Michael P. Scharf, a law professor at Case Western University, have written a book about Saddam's trial, Enemy of the State: The Trial and Execution of Saddam Hussein, released this fall by St. Martin's Press. "Our goal was to write a readable narrative, and much of the book is a first-person account of the human drama behind the spectacle Americans watched on TV news channels," Newton says. "The future of Iraq was forever changed with the capture of Saddam Hussein on December 13, 2003."

Book Excerpt

In this excerpt from Enemy of the State, Mike Newton recounts Saddam Hussein's capture and its immediate aftermath.

The night was cold and crisp, and the sounds of soldiers not-so-discreetly searching for anything on the property carried clearly. ... The tension grew as the knot of soldiers heard a hollow "thunk" sound and heard a comrade call out to get their attention. ...[They] watched as some kind of brick or block was pulled up and moved to the side of [a] newly discovered hole. ... The Arabic 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." ... A few of the soldiers...grabbed at the body, and yanked upward and outwards; they deposited what looked like a homeless man onto the ground. ... 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. ... 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."

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, blank stare. The [American] 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 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.

The former dictator was captured quickly and with no loss of life. "No way he could fight back," crowed General [Raymond T.] Odierno [then Commanding General of Operation Iraqi Freedom] at a press conference held in Tikrit. "He was caught like a rat." ...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.

Saddam's capture at the hands of U.S. military forces paved the way for his later charges that the process of bringing him to trial was an extension of Western power. Rather than maintaining the image of the omnipresent leader whose will was dominant in Iraqi society, he looked like a scruffy, defeated 66-year-old man whose days would best be spent doing crossword puzzles and sipping chai tea at the market. No one will ever know with certainty, but it is likely that the strategy of disrupting the trial and denying its legitimacy was born in the minute that Saddam was humiliated before the cameras of the world.

... Meanwhile, I was in the Convention Center conducting a training session for a group of judges and prosecutors who had been tentatively screened by the Iraqis to preside over war crimes trials. The roomful of Iraqis buzzed with enthusiasm and mystery as they began to meet. Each attendee had been through a selection process, and most dreamed of being named to a position in such a court. Many of the key participants in the Dujail trial received their first exposure to the principles of international criminal law during those long days of discussion. Though this was months before the Iraqi High Tribunal (IHT) would name anyone to formal positions, or even establish its structure, prosecutor Ja'afar al-Moussawi was a memorable participant.

The Iraqis gathered in a large rectangular auditorium with a table at its front on a raised platform from which the Western experts spoke. Translators sat behind a sheet of glass in booths to the left of the audience. This simultaneous translation allowed for good interchanges between the Iraqi lawyers and teaching staff. Some coalition political officials stopped by to signal their support for the discussions but did not remain in the room long enough to mingle with the Iraqis and listen to the issues they sought to raise. Most of the Iraqis wore suits, though a few wore traditional garb. One Sheikh wore flowing white robes lined with intricate designs; he would be murdered during the months of unrest as the insurgency blossomed. Many of the younger men were quiet as they grappled with the new notions of international law presented to them. They tended to take careful notes and ask questions only during the breaks or during lunch in private conversations.

Early in the week, those who had suffered hardships at the hands of the regime tended to dominate the discussions as they told of their pain and tried to educate the visiting Westerners as to the particulars of their experience. Later, the dynamic changed markedly as the Iraqis became intrigued by the intricacies of applying international law to their own system. They wondered aloud about the challenges of integrating developments in international law into the comfortable contours of their own domestic procedures. Lunch discussions were lively, and I was pulled from table to table to answer questions. Almost all of the lawyers were eager for me to understand their perspectives on what had happened to Iraq under Baathist rule. They asked whether a court could truly be independent and impartial, as required by human rights standards, if its funding came through political channels. They debated which approach was preferable; the international practice of grouping all of the charges against a defendant into one megatrial or the Iraqi procedural code approach, by which a defendant is tried in a series of minitrials, each focusing on a particular incident. They wanted to know whether international law allowed for the combination of charges; that is, could the same acts be punished both as war crimes and as crimes against humanity? Could an act charged as an Iraqi crime also be characterized as a crime against humanity or even as genocide? They asked many questions about the differences between the responsibility of commanders and the individual responsibility attributed to the followers or those who had far less input into the joint criminal purpose. All of these issues would surface as key points of contention during the Dujail trial.

Those Iraqis were the first in the nation to read and discuss the legal content of the statute for the Iraqi High Tribunal that had been adopted by the IGC [International Governing Council] just a few days before. From the very beginning of our discussions, the Iraqi professionals referred to the end of Baathist rule as "the entombed regime." The reference was more tinged with hope and weariness than with confident prediction. Midmorning of December 14, 2003, the calm orderliness of our academic discussions in the Convention Center was rocked by the electrifying rumors that Saddam had been taken. ...The Iraqi judges and lawyers studying the newly promulgated statute remained oblivious to the news until a cell phone rang and one of their number jumped to his feet from the back of the room to shout the good news.

The class immediately dissolved into a frenzy of joy and palpable relief as Iraqis literally jumped and hugged and cried on each other's shoulders. It was a scene of joyful pandemonium. Celebratory AK-47 fire began to crackle in the streets and lasted much of the night. The classes dissolved as the judges and prosecutors spontaneously left to return home before dark, when the celebrations might make travel more dangerous. Ironically, some Americans were injured accidentally as rounds that had been fired to celebrate the success of the U.S. Army rained down from the sky. Caught up in the electricity of the moment, one of the Iraqis in the room exclaimed, "Today is day one!" His spontaneous vision captured the sense of many Iraqis that the capture and prosecution of Saddam and the leading members of his regime was a watershed event for those dedicated to leading Iraq toward stability and sovereignty founded on respect for human rights and the rule of law.

Along with many of the judges, we went into the main press room and witnessed Ambassador Paul Bremer triumphantly proclaim the message that would change the course of Iraq: "We got him!" ...

The man whose entire persona was built on defiance to the West was humiliated as his confused and disheveled visage was transmitted around the world. The importance of this visual confirmation can hardly be overstated. The myth of the untouchable tyrant mocking the West in full control of his destiny was shattered. Rather than a well-groomed Saddam in a pressed shirt standing up to the invader, the world saw a humbled man with no pretense of power or control. Even today, the capture of Saddam remains as one of the key coalition triumphs. In the end, though, the trial itself would serve as the forum where Saddam found his voice and stood defiantly to rally the insurgency. The behind-the-scenes preparation for the trial of Saddam and other Baath Party officials began in earnest as soon as the press conference ended. As the enormity of the task became evident and the challenges mounted, the triumphant memories of that day sustained the Iraqis in their work on behalf of their country.