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Trials of Some of Hussein's Aides to Start Within Weeks; His Is Expected in 2006

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By John F. Burns

New York Times
February 10, 2005


Iraqi officials say that the long-awaited legal reckoning for Saddam Hussein and his associates will begin this spring with televised trials for at least two of the top 12 government members in American military custody, and that prosecutors will demand the death penalty for those judged guilty of the worst crimes.

One of the first men to be tried will be a cousin of Mr. Hussein's, Ali Hassan al-Majid, known as Chemical Ali for his role in poison-gas attacks that killed thousands of Iraqi Kurds in the late 1980's, officials say. Another will be Barzan al-Tikriti, a half brother of Mr. Hussein's, who served early in his rule as deputy head of the secret police. Officials say the most serious charge against him will involve ordering the razing of a Shiite village north of Baghdad, and the killing of scores of men there, after a failed assassination attempt against Mr. Hussein in 1982.

Nearly two years after American troops captured Baghdad, twin courtrooms built for the trials in Baghdad's heavily guarded Green Zone are nearly ready, and investigating judges are close to completing dossiers summarizing the evidence for the first cases, officials say. Although American legal experts have helped prepare the cases, the trials will be conducted before a special Iraqi tribunal, not before an international court of the kind set up in The Hague for the former Yugoslavia.

The Iraqi officials, speaking on condition they not be identified, say Mr. Hussein will not go on trial until the cases against his principal associates have been completed, perhaps not until well into next year. Bakhtiar Amin, the human rights minister, said in an interview that court officials would use the cases against Mr. Hussein's associates to establish "command responsibility" for the atrocities committed under his rule, building evidence tying him to decisions that led to the deaths of hundreds of thousands of Iraqis.

Mr. Hussein, who is in solitary confinement at Camp Cropper, the American military detention center near Baghdad's airport, has been meeting recently with lawyers appointed by his family, according to a Western legal expert who discussed the trials on Wednesday. Captured by American troops in December 2003 near his hometown, Tikrit, Mr. Hussein became eligible for legal representation after a brief court appearance last July with the other 11 top leaders. But Iraqi officials said it was months before any Iraqi lawyers made formal bids to represent him.

Now, the legal expert said, Mr. Hussein has 10 Iraqi lawyers and as many as 25 foreign lawyers, any of whom will have the right to join his legal team at trial. Mr. Hussein's wife, Sajida, fled Iraq before the American invasion with two daughters and took up residence in a lavish mansion in the Jordan. Her spokesmen have said that she has appointed lawyers from Belgium, Britain, France, Jordan, Lebanon and Tunisia, among other countries, and that they will challenge the legitimacy of the special tribunal to try Mr. Hussein, arguing that his actions as president were covered by his immunity as head of state.

The Western legal expert, who has been closely involved in preparing the cases, said all 12 prisoners had been meeting regularly with lawyers. He said the meetings were not held in the presence of American guards, and that there were no constraints on what was discussed. Previously, Iraqi officials had said the detainees were not allowed access to radio, television or newspapers, severely limiting their knowledge of developments in Iraq. Asked if the meetings raised the possibility that the lawyers could act as couriers for messages from Mr. Hussein and the other detainees to the armed groups that have spread a wide insurgency across Iraq, the expert said it could not be ruled out. "It's possible, but how do you stop that?" he said. "There have to be some sacrosanct aspects to the attorney-client privilege." The expert, guarding his anonymity partly to ensure a low profile for the role play in the tribunal by Western advisers, set out a schedule for the first trials that suggested that it could be summer before proceedings reach the point where the tribunal begins to hear in detail of the brutalities inflicted under Mr. Hussein.

Before the trials can begin, he said, a team of 400 Iraqis working for the tribunal - backed by 50 mainly American lawyers and investigators in a support group known as the Regime Crimes Liaison Office - must hand in dossiers outlining the evidence against defendants to the five-judge panels that will preside at the trials. Investigators have spent much of the past year sifting through tons of seized documents, interviewing witnesses and reviewing evidence gathered by forensic teams from at least 12 mass graves. The transfer of the dossiers to the tribunal, called a referral, will come within the next few weeks, the expert said. Then the judges will set a trial date, probably quite promptly, he said.

Some lawyers involved have already said that when the trials begin, they will argue that the court is illegal because it was set up by the American occupation authority last year, before Iraq resumed formal sovereignty. That issue would go to a nine-judge Iraqi appellate court, which would have to rule before the trials could proceed, the expert said.

Arrangements have been made for television relays to carry the trials live to Iraqi and worldwide audiences, according to the expert. He said the courtrooms would include seating for reporters and a public gallery to which ordinary Iraqis will be admitted first come first served. Security will include screens or curtains to protect witnesses unwilling to be seen in open court. Although courts are in the Green Zone, a maze of checkpoints manned by Iraqis and Americans has already been set up.

One of Mr. Hussein's top associates is not likely to be tried because of his health problems, the Iraqi officials say. He is Muhammad Hamza al-Zubaydi, Mr. Hussein's prime minister after he seized power in 1979 and opened a bloody purge of the governing Baath Party. Mr. Zubaydi, in his late 60's, is the oldest of the 12 Camp Cropper detainees. Officials say he is suffering from severe heart trouble that traces back to two bypass operations before Mr. Hussein's ouster, and that American doctors treating him do not expect him to recover.

Mr. Zubaydi has been under investigation for his role in the purge, which involved the execution of dozens of people shortly after Mr. Hussein declared himself president. The Iraqi officials say some detainees have tried to win their freedom or avoid the death penalty by promising cooperation. Early in the tribunal's existence, officials said two of those willing to give evidence against Mr. Hussein was Tariq Aziz, a former deputy prime minister, and Sultan Hashem Ahmed, defense minister during the American-led invasion in the spring of 2003. Mr. Hashem was the general who met with American commanders on Iraq's border with Kuwait in March 1991 to sign terms ending the Persian Gulf war.

These overtures took on new significance when Ayad Allawi, the former Baathist serving as interim prime minister, moved to control the court by dismissing senior tribunal officials and appointing his own loyalists. One of those dismissed, Salem Chalabi, the tribunal's director, said Dr. Allawi wanted to free some defendants, or lessen the charges against them, to form a lever with other former Baathists active in the insurgency. Dr. Allawi has acknowledged meeting secretly with such men in efforts to break the tide of war.

But Mr. Amin, the human rights minister, said there would be no compromise in the case of Mr. Aziz, who was Iraq's main diplomatic emissary for at least 15 years before Mr. Hussein's overthrow. Mr. Amin, a Kurd, said Mr. Aziz, a Christian, was deeply implicated in Mr. Hussein's crimes against Iraq's Kurdish minority, and in particular in the killing of thousands of Kurdish Christians. "I am opposed to anyone with blood on his hands, and who has been involved in genocide and other atrocities, being released," Mr. Amin said.

One concern has been that Mr. Hussein could try to use his court appearances to as a political platform, in the way that Slobodan Milosevic, the former Yugoslav president, has done in years of testimony at The Hague. At his brief court appearance last July, Mr. Hussein described the Kuwait invasion in 1990 as a just assertion of Iraq's national interest and condemned the American occupation. He claimed he was still Iraq's lawful president, and told the judge that he should be ashamed of himself for dishonoring his country's leader.

But the Western legal expert said Iraqi court procedures, based on civil law, should prevent attempts to turn the proceedings into political theater. First, he said, the defense will be handled by lawyers, and not, as in Mr. Milosevic's case, by the defendant. Beyond that, the wide powers granted to the judges to select witnesses and direct prosecution and defense lawyers, as well as the absence of the adversary system used in American trials, would make the tribunal's hearings "more expeditious" than the tribunal in The Hague. "You're not going to see a Johnnie Cochrane cross-examining somebody in the manner of the O. J. case," he said.


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