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I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Monday, January 01, 2007

Iraqis learn the art of legal "workarounds"

(updated below)

This depressing New York Times article by John Burns and Marc Santora details the frantic, reckless manner in which Saddam Hussein was shoved into the noose in clear violation of Iraqi law. We can't even get a hanging right. With all of the world watching, we yet again were the primary authors of a violent, uncivilized, and primitive act which -- no matter how justified in some ultimate moral sense -- was carried out in the most thuggish, wretched, inept, and (we now learn) patently illegal manner.

It really is striking, and a potent sign of just how absurd is our ongoing occupation, that the "Iraqi Government" which we are fighting to empower could not even conduct this execution with a pretense of legality or concern for civilized norms -- the executioners were not wearing uniforms but leather jackets and murderers' masks, conducting themselves not as disciplined law enforcement officers but as what they are (death squad members and sectarian street thugs).

And the most revealing, and most disturbing, detail is that Saddam's executioners -- in between playground insults spat at a tied-up Saddam -- chanted their religious-like allegiance to Moktada Al Sadr, the Shiite militia leader whom we are told is the Great Enemy of the U.S., the One We Now Must Kill. This noble and just event for which we are responsible was carried out by a brutal, murderous, lawless militia. Freedom is on the march.

Despite all of these grim events, it must at least be encouraging to the Bush administration that the Maliki government is quickly learning some of the most important tools for governing. For instance, after Prime Minister Maliki was told that his Order to quickly exectue Saddam would violate several different legal constraints -- i.e., "laws" -- this is what ensued:

Told that Mr. Maliki wanted to carry out the death sentence on Mr. Hussein almost immediately, and not wait further into the 30-day deadline set by the appeals court, American officers at the Thursday meeting said that they would accept any decision but needed assurance that due process had been followed before relinquishing physical custody of Mr. Hussein.

“The Americans said that we have no issue in handing him over, but we need everything to be in accordance with the law,” the Iraqi official said. “We do not want to break the law.”

The American pressure sent Mr. Maliki and his aides into a frantic quest for legal workarounds, the Iraqi official said.

That is a sublime phrase -- "legal workarounds". Our polite media here at home refers to deliberate and knowing government lawbreaking as "bypassing" the law, or sometimes they will even pretend that the law being violated just does not exist. But "workaround" is a nice phrase, too.

The article details the "frantic quest" by the Iraqi government to concoct legal contrivances -- any at all -- to "justify" the immediate hanging despite the court's order. They finally compiled enough pretty, signed "decrees" to secure the Bush administration's approval to carry out the hanging. But the rush to snap Saddam's neck did not allow enough time for all laws to be "workedaround." Some laws standing in the way of the hanging had to be deliberately disregarded:

Mr. Maliki had one major obstacle: the Hussein-era law proscribing executions during the Id holiday. This remained unresolved until late Friday, the Iraqi official said. He said he attended a late-night dinner at the prime minister’s office at which American officers and Mr. Maliki’s officials debated the issue.

One participant described the meeting this way: “The Iraqis seemed quite frustrated, saying, ‘Who is going to execute him, anyway, you or us?’ The Americans replied by saying that obviously, it was the Iraqis who would carry out the hanging. So the Iraqis said, ‘This is our problem and we will handle the consequences. If there is any damage done, it is we who will be damaged, not you.’ ”

Or, put another way, the Iraqi Government -- revealingly "frustrated" by the need to pretend to operate within the law -- knew that hanging Saddam in this manner was illegal, but they did it anyway because they know there will be no consequences. No wonder the President praised their adherence to "due process" and the "rule of law" -- the President's followers and the Shiite militias ruling Iraq appear to share a similar understanding of those terms.

As Chris Floyd notes, many of the "facts" reported by the Times article are almost certainly rank fiction emanating from the White House with the intent of distancing itself from this grotesque affair -- hence, all of the oh-so-concerned Bush officials oh-so-worried about the need to adhere to legal constraints, urging the Iraqis to slow down and carry out the execution in a dignified, orderly and legal manner, and consenting only because the Iraqis asserted the prerogatives of their sovereignty.

But as Floyd also correctly observes, Saddam was in U.S. custody until the very last minute, and both the fact and the terms of the execution required the approval of Bush officials, which they gave -- implicitly, if not explicitly, by handing over Saddam for his middle-of-the-night noose fitting. Comparisons to the relatively dignified and orderly Nuremburg executions only serve to highlight how far America has tumbled under this administration, on every level that matters.

So this is the grand and noble achievement which the President and his band of bloodthirsty followers are reduced to celebrating -- a lawless, thugish hanging, carried out in clear and deliberate violation of the law, by a bunch of homicidal street thugs and militia foot soldiers who themselves will be included among our next kill targets once our glorious "sustained surge" begins.

No matter what we touch in Iraq, no matter what we do, it only makes things worse -- never better -- because the root of what we are doing is itself so rotted and incoherent and corrupt. It's beyond doubt that we're going to be treated to much more "freedom" and "justice" like this over the next two years in Iraq, at least.

UPDATE: I originally linked to the wrong Chris Floyd post. The link has been fixed, and the correct post is here (thanks to Kathy in comments for the correction).

UPDATE II: Steve Soto emailed Times reporter Marc Santora to obtain more information about the sources for Santora's account of the Saddam hanging. Santora replied: "I had to rely on what the Iraqi witnesses told me, seeing as how there were no westerners allowed, not even a US military representative." Soto accurately describes the event as "an execution carried out under official cover in violation of the law by Muqtada al-Sadr with the religious sanction of the Najaf ayatollahs." And the prohibition on all Western press only serves to underscore further the true nature of this execution.

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