Update on The Smoking Signature

Kevin Jon Heller over at Opinio Juris has an extremely important update on the trial of Saddam Hussein (damn these time zones...by the time I wake up, all the good stuff has already been blogged about!!). Last week, it looked as if the prosecution was introducing some hard evidence of Hussein's guilt: a memo signed by Saddam himself ordering the execution of 140 Shi'ites. Today, however, it's being reported that the memo is not quite so damning. Rather than an execution order the document shows "Saddam signing off on bonuses for security agents in the investigation of the assassination attempt and presidential approval of death sentences for residents of Dujail, north of Baghdad" and "Saddam's approval of a recommendation allegedly made by Barzan Ibrahim, his half brother and co-defendant, to reward intelligence officers for their "confrontation against subversive and armed elements ... in the Dujail area."

This is an excellent example of why it's going to be so hard to get guilty verdicts in this trial, as well as that of Slobodan Milosevic. As the AP reports, "Saddam's approval of death sentences handed down by the Revolutionary Court against Shiites from Dujail could not prove incriminating unless there is compelling evidence that Saddam knew the defendants were railroaded. Also, orders for arrests or transfers of detainees from one facility to another mean little unless the prosecution can prove that Saddam knew they would be tortured." As the sovereign ruler of Iraq, Hussein had a right and duty to protect his country, even through methods we might find repugnant. To find him guilty, the prosecutors have to show that Hussein knew what was going on and had a hand in ordering murders. It's simple enough for Hussein to claim that he was suppressing a rebellion and that if a few officers went beyond the call of duty and tortured or murdered a few Kurds or Shiites, Hussein had nothing to do with it. In the words of Saddam's attorney, "There is nothing in these documents that show anything beside President Saddam exercising his constitutional authorities. As president, he ratifies death sentences and approves promotions."

The chief prosecutor has announced that he does in fact have hard evidence, claiming "he would present a document during the next session, Feb. 28, involving communication between the intelligence agency and Saddam that he suggested would further tie Saddam directly to the Dujail crackdown." We'll see....