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To the list of new and disturbing experiences the Iraq war has brought, we must now add a new one: a public trial of Saddam Hussein. In our hearts, a trial is our last concern; revenge and punishment come first. But in our heads, we know that if this war is to have meaning, justice is essential at this critical moment. The territory, government and justice system of Iraq have been taken over by force and controlled by the United States, and Hussein will only be turned over and tried at our pleasure. The defense would be justified in arguing that since we control the game, it must be played by our constitutional rules. No doubt international observers will harbor the same expectation. We have told the world, and the families of the brave soldiers who have died, that we are in Iraq to spread democracy and justice. Any system of justice is only as good as it is fair, and it is only as fair as the rights it gives to its accused. So, ironically, even though Hussein is apparently going to be tried before the brand-new Iraqi War Crimes Tribunal, his defense may raise fundamental U.S. constitutional protections. Our Declaration of Independence makes clear that one of the fundamental forms of tyranny from which our founding fathers rebelled was that the king “has made judges dependent on his will.” An independent judiciary is an essential check on the other branches of government and a protector of our freedoms. Hussein’s defense will argue that the Iraqi tribunal has no such legitimacy. It was set up by a puppet government, installed by an occupying power, during a time of war, with no prior constitutional or legal basis. Set up, funded and trained by the United States-it is in effect controlled by the United States, whose president has made clear that he has long-since prejudged Hussein. Presumed guilty Under the Fifth Amendment, anyone accused of a crime is presumed to be innocent and must be tried by an impartial fact-finder under that presumption. In Iraq, the tribunal has been set up and selected by those whose principal qualification for governance is their long-standing opposition to Hussein. There have been repeated references by those controlling the process to his guilt. Our Sixth Amendment guarantees the right to trial by jury. However, the architects of the unfolding process in Iraq are apparently not even considering a jury for this trial. That might be more acceptable if there was, in fact, a learned and independent judiciary, but the absence of both only compounds the problem. The Fifth Amendment privilege against self-incrimination is a basic protection against the power of the state to interrogate unfairly. Here, Hussein was taken by force after months of war and pursuit. On the video, he is clearly exhausted and even disoriented, yet the news reports are filled with descriptions of how teams of professional interrogators will now use every trick in the book for months to get information out of him. Any results of that interrogation will presumably be used at his trial. Iraqi officials have indicated that Hussein will be allowed to have an attorney at his trial. But our law has long been clear that the right to counsel begins at arrest, not at trial, because that is when the process and the need for counsel truly begin. For the authorities to go through months of interrogation and trial preparation without active involvement of defense counsel turns the right to counsel into a sham. The Sixth Amendment right to a public trial is another way of both satisfying the public’s right to know and protecting the accused from violations of rights done in secret. Here, there are also political and diplomatic reasons for a public trial. However, that openness comes at a cost. Much of the evidence against Hussein has been gathered by our intelligence agencies and their secret sources. In a normal trial, the accused has the right to discover information about the sources of information against him and make extensive inquiries into them. Here, that will raise a constant stream of battles over the limits of such inquiry. The key right to compel witnesses and testimony gets a little dicey. We supported Hussein heavily for many years, apparently right down to providing certain materials for weapons of mass destruction. The defense may argue that his actions had been OK’d in some fashion by the U.S. government. If that line of defense is allowed, the witnesses could include a long string of U.S. officials, starting with former President George H.W. Bush. It’s a lot to contemplate. Our justice system is based on these procedural defenses, rooted in the difficult but long-standing premise that it is better to let one guilty man go free than to abuse the rights of all and convict an innocent man. The premise is particularly hard to swallow in a high-profile trial such as this one, given its history. Yet how we respond to the challenge of providing Hussein the justice that he denied to so many could demonstrate to the world the legitimacy of the freedoms we cherish. Daniel Small, a trial lawyer, is a partner in the Miami office of Broad and Cassel. He is a former federal prosecutor and the author of Going to Trial (ABA Publishing).

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