Personally, I hope like hell that order wins out, not least because I’ll be back in Baghdad in a few days. So I’m not going to criticize CIA-anointed Prime Minister Ayad Allawi for giving himself the legalistic right to re-impose curfews, bug phones, confiscate money and property, restrict political gatherings and take direct command of security forces in selected hot spots. His security forces (and he hopes to have a bunch of them) can search and detain people without any warrants, and, when he sees fit, Allawi can take direct command.
After all–and this is not meant ironically–there are a few checks and balances, like approvals from the president and the two vice presidents, and the possibility of judicial review. And Allawi does have the inestimable advantage that any abuse he could inflict on his countrymen pales by comparison with Saddam Hussein’s 34-year reign of terror.
Still, when Allawi starts talking about “the rule of law,” as he’s done a lot these last few days, it makes me uneasy. Because that’s not really what we’re looking at. This martial-law decree is an imitation of legislation that’s backed up by foreign firepower, and the test of its legitimacy is not in the courts, it’s in the results: does it look good enough to keep Allawi’s government from being condemned by domestic and international opinion? Does it give him the leeway to do whatever he thinks is necessary whenever and wherever he chooses? The jury is out. In fact, it hasn’t even been impaneled.
But one thing is certain, if Allawi has learned any lessons from his American and British patrons these last dozen years, it’s that the rule of law is much less important to them than the rule of lawyers, and it’s only the finagled fine points of obfuscation and sophistry that pass for justice whenever they look at Iraq.
Two critical examples stand out:
Saddam’s Crimes: When Dick Cheney was secretary of Defense in 1991, the Pentagon commissioned a report about Saddam Hussein’s savage and systematic war crimes. It’s a fascinating document, not only for what it reveals about the Butcher of Baghdad’s brutality, which was nauseating, we know, but for what it suggests about the cynicism of our own leaders, which was also pretty sickening.
After Saddam’s 1990 invasion of Kuwait, President George H.W. Bush loved to describe Saddam as a war criminal, even “Hitler revisited.” But when Operation Desert Storm ended in 1991, so did the rhetoric. A report on atrocities was compiled quietly by two teams of military lawyers specializing in international law under the auspices of the U.S. Army’s War Crimes Documentation Center of the Office of the Judge Advocate General.
Completed and submitted on Jan. 8, 1992, it documented “at least two dozen torture sites” set up by the Iraqis in Kuwaiti police stations and “sports facilities.” (Saddam’s corps of interrogators and torturers seemed to enjoy their work. One document they left behind suggested Kuwaiti dissidents “should be beheaded and we should be artistic in causing harm to them.”) Among these modern Torquemadas’ tools of the trade were electric drills and acid baths. According to the same report, the 24 American prisoners of war were beaten savagely “with fists, batons, rifle butts,” sexually molested (two of the prisoners were women, but they may not have been the only ones abused in this way), and in several cases were tortured with electrodes attached to their heads. The Iraqi interrogators called that device “the talkman.” The use of poison gas, the taking of hostages for human shields, the mass deportations, the wholesale murder of civilians–these are all crimes well defined under international treaties that Iraq signed and Saddam utterly ignored. But Cheney’s Pentagon, instead of releasing this devastating report, much less acting on it, just stamped it SECRET instead.
It was a campaign year, and the report was received, inconveniently, just weeks before the New Hampshire primary. Later, in July 1992, Elaine Sciolino wrote in The New York Times that the Pentagon was sitting on the document since Desert Storm was supposed to have been a great victory for George H.W. Bush and this report “would focus attention on the fact that Mr. Hussein is still in power.” Sciolino quoted a senior administration official saying “the prevailing view is that this is not a matter of urgency.” In a follow-up story, several months later, The Washington Post quoted an official from 41’s administration saying “some people were concerned that if we released it during the campaign, people would say, ‘Why don’t you bring this guy to justice?’”
Cheney’s office has been queried about this by NEWSWEEK several times since he became vice president (I first wrote about it in August 2001), and his staffers have suggested he might not even have seen the report. The key officer in charge of preparing it at the Pentagon has since died, so he can’t help us much. I asked for confirmation from a State Department official who was intimately involved with gathering the documentation of Saddam’s atrocities in 1991. He opened his hand in a gesture of surrender. He had no idea whether Cheney made the decision to deep-six the document. When he asked lower Pentagon officials what was happening at the time, he recalls, “They said ‘We aren’t yet at a suitable moment to pursue these things. We need to have them ready when the timing is right’.”
The Clinton administration declassified the war-crimes report almost immediately. But it never found the right time to confront Saddam either. The dictator was never charged with war crimes or crimes against humanity in an international court, despite the mountains of evidence against him. And, take note, he still hasn’t been. This Bush administration doesn’t like international courts. So the slap-dash Iraqi tribunal that showed off Saddam last week is left in the odd position of trying to judge this monster on the basis of laws confected from the dictator’s own legal code, new decrees and selective gleanings from international jurisprudence. One hates to say Saddam has a point, but when he called his hearing political theater, he was just stating a fact.
Weapons of Mass Destruction: When George W. Bush took office in January 2001, with Cheney aboard, the new president wanted to get rid of Saddam for lots of reasons, but his crimes against humanity were not high on the list. The issue, especially post-9/11, was terrorism and weapons of mass destruction. The Bush administration’s lawyers were blithely informing it that quaint old clauses in the Geneva Conventions could be ignored. They were authorizing something very much like torture to interrogate prisoners detained in geographical loopholes like Guantanamo, and concluded some American citizens could be held with no rights at all. In short, the laws that you or I thought ruled our lives were treated as juridical nuisances. (Fortunately the Supreme Court has started correcting some of those abuses.)
In order to lay the groundwork for a full-scale war with Iraq, the Bush administration and the Blair government in Britain wanted the legal cover provided by the United Nations. So President Bush gave what may have been the finest speech of his life before the General Assembly in September 2002, calling on the organization to shoulder its responsibilities. And it did. After many tough weeks of negotiating, Security Council Resolution 1441 provided a legal framework–backed by a firm threat of force–compelling Saddam to allow weapons inspectors back into his country and give them free rein.
The document’s not easy reading, but it’s clear enough. The key words are “material breach” of various United Nations’ resolutions. Saddam had already crossed that threshold, but this gave him one last chance to survive. If any new example of material breach were found–meaning blatant lies about his weapons program, or, more importantly, solid evidence that stockpiles of WMD still existed–then it was up to the U.N. inspectors to say so, and Iraq would face “serious consequences,” meaning attack by what probably would have been a united global coalition.
In the event, the weapons inspectors did not find stockpiles of forbidden WMD. And, as we know, none have been discovered since. So the inspectors did not declare Saddam Hussein in material breach because they couldn’t prove that he was–and, by all indications, he was not. There was, according to what we knew then, and also what we know now, no casus belli under the resolution.
But Bush and Blair forged ahead. “I don’t think they wanted any cooperation,” says one State Department official who was privy to the inside show. “They would have preferred more blatant justification for what they wanted to do. But this administration intended to get rid of Saddam, whatever.”
The British are still agonizing about all this. Last week the Blair government asked judges to stall rather than rule, belatedly, on the legality of the war on Iraq. At the same time, Blair told a parliamentary committee that he had “to accept we haven’t found [weapons of mass destruction] and we may never find them.”
Now, those readers who’ve gotten this far may be wondering, as Shadowland readers sometimes do, who are the good guys and who are the bad guys. Saddam was evil, and he was toppled. Wasn’t that the right thing to do, even if for the wrong reasons?
Not at the price. The rule of law–the sense that justice will be done, not simply revenge taken or political expediency served–was weakened at every step along the road to Baghdad. The Bush administration had faith it was doing the right thing, believing that its good intentions and its deft lawyers would allow it to ignore any advice or evidence to the contrary. As one young Army officer told me on the eve of war, the future of the region depended not “on the rule of law [but] the law of averages.” As a result, all of us have lost.
