Essay #21: What Will Ramsey Clark’s Participation Mean for the Saddam Hussein Trial?

by Michael Scharf

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 115 (2006).

When the Saddam Hussein trial resumed on November 28, former U.S. Attorney General Ramsey Clarke was seen seated at the Defense table next to lead defense counsel Khalil Dulaimi. Under the IHC (formerly IST) Statute, non-Iraqi lawyers are permitted to assist in the defense, but this was the first time a member of Saddam’s army of high powered foreign lawyers was allowed into the courtroom, signifying Clark’s special status. This essay explores what Ramsey Clark’s presence will mean for the Saddam Hussein trial.
There are three reasons why a distinguished defense lawyer might take on a case like Saddam Hussein’s. First, a highly successful defense attorney might be attracted by the ultimate challenge of a nearly impossible case, involving a defendant who is widely considered to be guilty of the charges. A prominent example of this would be Harvard law professor Alan Dershowitz, who defended Claus von Bulow in 1984 on a charge of attempting to murder his wife with an injection of insulin, a case later dramatized in the 1990 film “Reversal of Fortune” staring Glenn Close, Jeremy Irons, and Ron Silver as Dershowitz. Second, the lawyer might seek the international media attention and fame such a high-profile case may bring. The OJ Simpson case, for example, transformed little-known defense attorney Johny Cochrane into a household name around the world. Finally, the lawyer might want to use the case as a means to promote the lawyer’s own political agenda.

Ramsey Clark falls largely into the third category. Clark is founder and current Chairman of the International Action Center, the largest antiwar movement in the United States. A vocal critic of U.S. military actions around the globe, in Op Eds and newspaper interviews, he calls US government officials "international outlaws," accusing them of "killing innocent people because we don't like their leader." Clark has said that rather than Saddam Hussein, it is the U.S. that should go on trial, pointing to the unlawful invasion, the subsequent destructive siege of Falluja, torture in prisons and the military's role in the deaths of thousands of Iraqis. http://www.worldnetdaily.com/news/article.asp?ARTICLE_ID=42165.

Clark is known for turning international trials into political stages from which to launch attacks against U.S. foreign policy. He has represented Liberian political figure Charles Taylor during his 1985 fight against extradition from the United States to Liberia; Elizaphan Ntakirutimana, a Hutu leader implicated in the Rwandan genocide; PLO leaders in a lawsuit brought by the family of Leon Klinghoffer, the wheelchair bound elderly American who was shot and tossed overboard from the hijacked Achille Lauro cruise ship by Palestinian terrorists in 1986; and most recently Slobodan Milosevic, the former leader of Serbia who is on trial for genocide before the International Criminal Tribunal for the Former Yugoslavia in The Hague.

Much as Clark objected to the 2003 U.S. invasion of Iraq, Clark joined the defense for the former Serb leader in 2001 because he objected to the 1999 NATO bombing of Serbia, which also had not been authorized by the U.N. Security Council. For a preview of Clark’s Saddam Hussein trial strategy, one can examine Clark’s tactics in the Milosevic trial. On the eve of the Milosevic trial in September 2001, the Coalition for International Justice faxed me a draft brief prepared by Ramsey Clarke, which he had distributed to the press and NGOs. This document -- which contained bombastic argument headings such as “Creation of the International Criminal Tribunal for the Former Yugoslavia Was a Lawless Act of Political Expediency by the United States Designed to Demonize and Destroy an Enemy,” “Powers that Create Ad Hoc International Criminal Tribunals Divert Attention from their Own Offenses,” “The Violence and Division Within Yugoslavia Since the Collapse of the Soviet Economy Was Caused by U.S.-Led Acts Designed to Balkanize the Federal Republic of Yugoslavia with the International Tribunal as Principal Weapon” – was never filed in court. Rather, it was designed for the court of public opinion.

Building on the theme of Clark’s brief, the Milosevic defense began with Hollywood-quality video and slide show presentations showing the destruction wrought by the 1999 NATO bombing campaign. Though the acts of NATO were not relevant to any of the charges or defenses, and therefore not likely to help Milosevic obtain an acquittal, the presentation had an immediate impact on Milosevic’s popularity back home in Serbia. The tactic transformed Milosevic from the most reviled individual in Serbia to number four on the list of most admired Serbs, and soon thereafter Milosevic (campaigning from the courtroom) easily won a seat in the Serb parliament in a nation-wide election.

For the Saddam Hussein Trial to be fair and credible, there must be equality of arms between the prosecution and defense. Thus, the active involvement of high-powered defense lawyers like Ramsey Clark on the defense team is an important ingredient to the success of the endeavor. Like Clark, I published articles in opposition to the 2003 invasion of Iraq. But I don’t think Clark’s strategy of putting the United States on trial will be constructive. Since the “Tu Quoque” (you also) defense is not legitimate (see essay #20 below), it won’t help his client’s case. In an editorial that Ramsey Clark published in the LA Times last January, entitled, “Why I’m Willing to Defend Saddam,” he wrote “This trial will write history, affect the course of violence around the world and have an impact on hopes for reconciliation within Iraq.” But as the Milosevic case has demonstrated, Clark’s strategy of putting the United States on trial is likely to incite greater opposition to and violence against the new Iraqi government and the U.S. troops stationed in Iraq. Ironically, Clark’s trial strategy will result in lengthening the amount of time U.S. troops must remain in Iraq, rather than hastening their withdrawal as Clark has advocated.


Response By Paul Williams and Brianne McGonigle

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 117 (2006).

I agree with Michael Scharf in that for the Iraqi Special Tribunal “to be fair and credible, there must be equality of arms between the prosecution and defense.” The involvement of high-powered, experienced, and passionate defense attorneys is not only an important ingredient to ensure a fair and credible trial, it is essential. It was also essential that the court offered all participants of the court, judges, prosecution and defense attorneys, equal protection from the start of the trial process—which, unfortunately, it failed to do. Ramsey Clark’s participation may or may not aid in the functioning of the IST, but it does raise the question: to whom does a defense attorney at the IST owe the greatest duty—the court or ! ! their client?

If defense attorneys at the IST owe their duty to the court, then their obligations are to justice, not their clients, essentially making them officers of the court. They should refrain from raising issues on the legitimacy of the court because they know that the arguments will not aid in mounting a credible defense for the Accused. Although the defense attorney could still “act in the best interests of the Accused,” the defense attorney would make the determination of what those interests are rather than having the Accused make those decisions for himself.

In contrast, almost all national professional codes and the codes of international criminal tribunals, acknowledge that attorneys, particularly criminal defense attorneys, owe, first and foremost, a fundamental duty to their clients, but also a duty to the interests of justice. I would argue that defense attorneys, whether retained by the defendant or appointed by the court, owe the greatest duty to their client while acting in the interests of justice. It is their duty to raise issues, so long as permitted by the court, that the Accused finds of fundamental importance, such as the legitimacy of the tribunal.

If Saddam Hussein requests or sanctions Ramsey Clark to address grievances concerning the legitimacy of the court and the defense team’s safety, it is Ramsey Clark’s duty, as his attorney, to do so. His boundaries are governed by the Judge, the Rules of the Tribunal, and his home bar association—not by public opinion. In addition, the issues defense attorneys addressed are valid concerns. Whether they are addressed at the appropriate time is for the Judge to decide. Defense attorneys at Nuremberg, the ICTY, and the ICTR have all addressed the issue over their respective court’s legitimacy. Although the argument continually fails, many would agree it needs to be stated for the historical record.

Part 5, Section 3, Rule 29 (Third) of the August 2005 revised IST Rules of Procedure and Evidence states, “In the performance of his [Defense Coun! ! sel"> duties, a counsel must adhere by the relevant provisions whether they are of the Tribunal Statute, these Rules or any other rules or regulations adopted by the Special Tribunal. In addition, he must adhere by any code of practice and ethics governing his profession.” As of now, there is no specific Code of Conduct for Defense Counsel before the IST; therefore, it is, in part, the responsibility of the judge, not Defense Counsel, to control the courtroom and set the boundaries for attorneys in order to ensure decorum in the courtroom. According to Rule 31 of the August 2005 revised IST Rules of Procedure and Evidence, a judge has the authority to impose legal proceedings against counsel if counsel’s conduct becomes offensive or abusive or demeans to dignity and decorum of the Tribunal or obstructs the proceedings. In addition, a judge may, with the approval of the President of the Court, communicate any misconduct of counsel to the professional body in his state of admission. It is for the judge to decide whether Ramsey Clark’s assertions at the IST disrupt the court proceedings.

All defendants deserve a high-powered, experienced, and passionate defense attorney—for Saddam Hussein, Ramsey Clark embodies these traits. The general public may not agree with his methods, but it is up to the Judge, the rules of the court, the ethical code of his profession and his client to set his boundaries. Until that time when he is cautioned, his duty to his client is in the interest of justice.

Posted @ 12:28 PM | Experts Debate the Issues: The Dujail Trial