The State in the Dock

People tell me that Saddam Hussein is a very bad man. Probably he is. Ok, really he is. He is egregiously immoral and ghastly. Should he be put on trial? Can such a trial be fair? This is where it gets complicated.

If all heads of state who commit violent acts were to be tried as criminals, we would live in a very different world. It would be a world without governments as we know them. Let’s say that you like that idea. You might argue that lopping off Saddam’s head is as good a place to start as any.

But there’s a problem: The trial is being administered and run and decided by the government of a conquering nation, one led by a man who clearly had a personal vendetta against Saddam, and who used the most duplicitous methods to drag his country into an imperial venture that has killed perhaps a hundred thousand and thrown the victim country into political and economic chaos.

If Saddam is to be tried in court, the US lacks the credibility to be the prosecutor. Moreover, the trial might as well be designed to inspire more hatred of the US, create a martyr out of Saddam, and inspire more terrorism in the future. In any case, how does one measure the relative criminality of managing a despotism at home, as Saddam has done, versus imposing a military dictatorship from abroad, as Bush is doing?

It becomes more complicated. Tariq Aziz, the senior member of Saddam’s cabinet, riveted the courtroom the other day with testimony that the current puppet government is led by people who attempted to assassinate Saddam and Aziz in the 1980s. The regime retaliated against the Shia village of Dujail, including 148 executions.

His justification: “If the head of state comes under attack, the state is required by law to take action. If the suspects are caught with weapons, it’s only natural they should be arrested and put on trial.”

Well, I challenge any head of state to disagree with that. The Bush administration certainly would not. Its main security impulse is to protect itself against political attack. That’s the whole basis for its anti-terrorism policy: to protect the government. Now, in so doing, they also believe that they are defending the people, because of course that’s what democracy means to these types: they are the people.

There was no democracy in Iraq, so there was no gloss on the fact that Saddam protected his interests first. Everyone seems to agree that most of the violence wrought by the Saddam regime was of a political nature. If you hated him and wanted to overthrow him, he would get to you first and make you pay.

For those people who were not involved in politics and didn’t challenge his right to rule, the country seemed rather secular and liberal overall, a place unique in that part of the world where women had rights, there was religious tolerance (Jews and Catholics were left alone, though many have since emigrated), and you could get a martini.

Again, I’m not claiming that Saddam wasn’t so bad after all. I’m pointing out that if he is only guilty of fighting off the competition, he was acting as all statesmen act with various degrees of intensity. The main impetus behind government-provided protection services is precisely to protect the government. There is nothing necessarily scandalous about this. It is what governments do.

It’s very different in the private sector. Let’s say that the head of state were the head of a corporation. If the CEO of McDonald’s had plotted to persecute and even kill the head of Wendy’s, on grounds that Wendy’s was attempting to overthrow McDonald’s burger dominance, we would all rightly be scandalized. The CEO in question would go to trial and be punished.

But if someone puts together a secret cabal to secede from the US state or otherwise challenge its monopoly, no one would think it unusual or wrong that he would be persecuted for doing so. If he resisted, he would be killed. In fact, radical groups that think of themselves as outside the law are often tried and jailed, and most people think this is perfectly fine.

And what else do governments do? The essence of government is the right to obey a different set of laws from that which prevails in the rest of society. What we call the rule of law is really the rule of two laws: one for the state and one for everyone else.

Theft is illegal but taxation is not. Kidnapping is illegal but stop-loss orders are not. Counterfeiting is illegal but inflating the money supply is not. Lying about its budget is all in a day’s work for the government, but the business that does that is shut down.

So this raises many questions. Under what law should the heads of governments be tried? If they are tried according to everyday moral law, they would all be in big trouble. Did you plot to steal the property of millions of people in the name of “taxing” them? Oh sure! Did you send people to kill and be killed in an aggressive war? Thousands! Did you mislead people about your spending? Every day! Did you water down the value of the money stock by electronically printing new money that you passed out to your friends? Hey, it’s called central banking!

Judged by this standard, all states are guilty. And all heads of state are guilty of criminal wrongdoing if we are using a normal, everyday kind of moral standard to judge them. Thus are they all vulnerable.

To be clear, I’m not talking about states in our age, or just particular gangster states. I’m speaking of all states in all times, since by definition the state is permitted to engage in activities that if pursued privately would be considered egregious and intolerable.

So on what basis can one state put another state on trial? Yes, some regimes are worse than other regimes, but who is to decide and on what grounds? What are the mechanisms that we use to insure that the right and true and fair result is achieved?

If I lived in Iraq right now, I might find myself disgusted at the scene playing out at the Saddam trial. Even if I hated Saddam, I could look out the window and see the explosions, bloodshed, poverty, innocent dead, and blown-up buildings, and note that US tanks are the ones patrolling and shooting and enforcing the chaos. I might further note that the current local government was put there by the conquerors.

As an American, it sickens me to see George Bush using this trial as a way of morally whitewashing his conquest. He is a deeply unpopular president, the most hated man since the last US president.

Many people think Bush is the worse president ever. Even by the murky standards of US law today, he has stretched all bounds of propriety in his spying, lying, and abuse of power. I dare say that he would not stand up well in a court of law.

And let’s not be naïve: many, many people in the US and around the world would love to see him in the dock. As it is, we will have to settle for history as the judge.

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