Tuesday, November 25, 2008
More than a witness to history: Michael Scharf helps shape trials ranging from Saddam to the Khmer Rouge
Case professor's new book goes behind the scenes at Saddam's trial
by WKSU's M.L. SCHULTZE
|Case Western Reserve law professor Michael Scharf helped prepare the judges for the "Mother of All Trials:" Saddam Hussein's. Scharf's job included figuring out how to conduct a fair trial when everything from culture to an escalating war argued against it. And he and partner Michael Newton have now published the back-stage story of the trial, titled "Enemy of the State." WKSU caught up with Scharf at a book-signing in Cleveland. |
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Michael Scharf had already had a decade's worth of experience setting up international tribunals when the Bush Administration called in 2004 to ask him to set up "The Mother of All Trials": the trial of Saddam Hussein. The former State Department official and head of Case Western's international law center agreed but with one condition: the administration could not censor the book he planned to publish after the trial. The administration agreed and Scharf began to work on the tribunal.
His job included training the judges that would preside over the trial by holding mock trials in Shakespeare's Stratford-upon-Avon. Scharf says that's one of the first places where he realized differences in culture would matter. He pressed his interpreter to explain to the judges that they needed to be sticklers for due process. He recalls that the analogy he picked caused trouble.
"I said you've got to be like a pitbull, and the interpreter stopped right there. Our interpreter's name was Riyadh... he said 'Mister Professor Michael, what is a pitbull?' I said a pitbull is a dog that bites the neck and doesn't let go and that's what they have to be like. He says, 'I won't say that.' I said, 'Riyahd, say it. Pitbull. Tell them they have to be like it.'
He says, 'No I will not say that. ... Mister Professor Michael, you do not understand, in Iraq comparing someone to a dog is the worst possible insult. It's worse than all of your four letter words and then some, and if I say this they will walk out of the courtroom and they will never come back."
Scharf and the other Americans also had to get used to differing opinions on courtroom demeanor.
"One of the things we saw was a lot of yelling everyday of the trial. And we were like, wow, this is a really messed up trial, everybody's yelling at each other," he recalled. But he also learned "that was how it's done in Iraq."
Scharf said Saddam's main goal throughout the trial was to take over the proceedings. He would make loud outbursts, insult the court and repeatedly say outrageous things during proceedings. Scharf recalled a day when Saddam looked directly into the cameras broadcasting the trial and told the Iraqi people to go out and kill an American as well as an Iraqi who was collaborating with them. The judge chided Saddam for encouraging Iraqis to kill other Iraqis, but said nothing about killing Americans. That made Scharf and his American compatriots uncomfortable.
"We talked to the Iraqi judge afterwards, and we said you know that was a really weird moment for us because you basically said, 'Go out and kill Americans, just not Iraqis. What were you thinking?'
"And it was fascinating and it was brilliant. He said that look everyone thought that this was a puppet court of the United States, I was proving that it wasn't a puppet court and at the same time I was telling all of the Iraqis that Saddam is not your friend. He's the one that's indirectly planting the bombs in our markets, killing our parents and mothers and daughters."
But Scarf says the trial says also was filled with moments of quiet dignity, even bravery. One of those belonged to John, a public defender whose life is at risk if his last name is used. He stepped in when Saddam's first-line defense, lead by former attorney general Ramsey Clark, boycotted the trial.
The public defender, whom Sharf described as physically small and meek, stepped in and announced he was ready to do the closing argument. He was dwarded by Saddam, who turned on him in rage.
Saddam "roars at him, 'You will not give a closing argument. My real lawyers are boycotting the proceedings to show how illegitimate this is and I order you not give a closing argument. And if you still give a closing argument, I will consider you an enemy of the state.'"
Scharf said that's a code word for an assassination threat and it had Saddam's desired effect " in part. The public defender "stood up and he was shaking. Literally, water spilled out of his glass."
But, Scharf noted, the meek public defender went on to give "a four-hour closing argument that was actually so good that one of the eight defendants was acquitted outright. Walked free at the end of the trial. Three of them got reasonably light sentences."
Scharf acknowledged that the trial could have been tidier, but that would have cost it any legitimacy.
"This wasn't our court. This was the Iraqi court. Lawrence of Arabia actually said this during World War I, that 'It's better that we let them do it themselves tolerably and imperfectly with our assistance then we try to do it for them perfectly.' And that was basically the way that we approached helping the Iraqis try Saddam Hussein. It would have been a better trial, in our eyes, if we had done it ourselves we could have avoided all sorts of things, but the Iraqis would not have felt any ownership of it."
The charges against Saddam involved the execution of several hundred residents of Dujail, a small Shiite town north of Baghdad. Villagers had launched an assassination attempt against Saddam in 1982 during the Iraq-Iran War. As a reprisal, Saddam ordered the mass executions and the destruction of the town.
Saddam's defense maintained that the attempt on his life was an act of treason and therefore, his actions were legal.
"He said that he was basically like George Bush. The way that George Bush is at war with terrorism is the way Saddam saw himself in Iraq.
"The whole trial was about this issue that we're still wrestling with, and that is: Where do you draw the line with what you can do in your fight against terrorism? Is Saddam right? Can you do what he does? Is George Bush right? Can you have people in Guantanamo Bay? Do you need to use extraordinary interrogation methods? Do you need to use assassinations of terrorists all around the world or does that somehow put us on the wrong side of the line and ultimately, must the courts be silent in times of war?"
The book, "Enemy of the State" was co-authored by Scharf and Michael Newton and is dedicated in part to Riyadh, the interpreter. He was one of five people assassinated during the trial.