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.

Friday, November 03, 2006

What are the Democrats doing about the November 5 Saddam verdict?

Every halfway decent trial lawyer knows that if your adversary has some bombshell document or witness which packs such emotional punch that it can overwhelm all other facts, you don't just sit around and passively wait for them to unleash it. You do the opposite.

Before they can use it, you take the document or witness and talk about it as much as possible, as aggressively as possible, and as early as possible, so that (a) the jury knows it's coming and so you deny your opponent the dramatic shock value of it, (b) it is clear that you are not afraid of its impact, and (c) the jury hears about it from you first, rather than your adversary, so that you're the one who defines it and, from the beginning, they view it from your perspective, not the other side's. In sum, by preemptively seizing on and using the other side's planned dramatic bombshell, it makes it a completely expected non-event when it finally happens.

More subtly -- but perhaps even more importantly -- by seizing upon their greatest strength, it conveys that you actually think the other side's great "secret weapon" actually helps your case, because it demonstrates how weak they are. If something as ineffective as this is what they think is their big, magical weapon that will save them, that is a pretty compelling reflection of their desperation, of their desire to distract from their real issues, and of the lameness of their position on the merits.

By contrast, bad lawyers drown in paralyzing fear of the other side's weapons. They just sit passively by, ignoring it almost in the hope that it will go away, just waiting for the bomb to detonate. All they do is impotently hope that the damage won't be too severe.

I say all of that because the Bush administration, in one of the most shamelessly manipulative acts one can fathom, has ensured that the show trial of Saddam Hussein is scheduled to end with a guilty verdict and likely death sentence on November 5 -- two days before the election. They are now openly acknowledging that they think this event should and will influence the outcome of our election.

There is no question that the media will cover this story intensely -- they love singular, dramatic events; they love courtroom dramas; and it is not every day that a dictator who ruled for three decades is sentenced to death. While one can question how much Americans will care about this event, it is inevitable that it will dominate the news right before the election, with almost no time for Democrats to have their views about it heard.

It's a real cause for concern that Democrats don't seem to be doing anything about this other than sitting around and passively hoping that the damage isn't too severe. That is the opposite of what they ought to be doing.

Americans do not trust this administration on any level, particularly when it comes to Iraq. And contrary to what seems to be the ingrained and governing assumption of Democratic consultants, Americans are not, by and large, stupid or unsophisticated. The Iraq war is a complete disaster -- everyone can see that -- and it is painfully obvious that having the Saddam verdict two days before the election is a cheap and manipulative political ploy designed to exploit the emotions of Americans in order to make them rally around the Republicans. It is as naked a political exploitation of this failed war as can be imagined.

Democrats should be talking about the upcoming Saddam verdict, offensively in those terms, and they should be doing it constantly. And they should do so not only to deprive the news story of its dramatic impact once it happens -- although that is an important benefit -- but they also must use this event offensively to make arguments about the administration's dishonesty and politically driven exploitation of this war.

The Bush administration induced Americans to support this war based on false pretenses, have mismanaged it to a degree unseen in our nation's history, and in the process have destroyed that country and mired us hopelessly in a war that they have ensured we cannot win. The whole project is a failure, and all the administration can bring itself to do is to figure out how to squeeze some political advantage out of the war right before an election by scheduling this Saddam trial -- which has dragged on endlessly, just like our occupation -- two days before Americans decide whether to maintain one-party Republican rule.

We have 140,000 soldiers in the middle of a country which is spiraling out of control. More American troops died in Iraq this last month than in any month for more than a year. The U.S. military itself now acknowledges that the country is collapsing towards full-blown chaos -- at exactly the same time that Vice President Cheney lied to Americans by claiming that things are going "remarkably well" there -- and what is the administration focused on? How to squeeze political advantage out of a show trial that will do nothing to help the war effort. It is disgraceful and unconscionable to use this war to help themselves stay in power -- particularly given how much they have neglected and botched the war itself -- but that is what the scheduling of this Saddam verdict is about.

Sitting around until the media explosion on November 5 and then hoping to say these things is a loser strategy. Even with their war oppoosition, Americans -- for two decades now -- have been conditioned to think of Saddam as the epitome of dangerous evil and his conviction and death sentence are going to pack some emotional punch. That emotional reaction will kick in with less than two days before they go to vote, which means there is no time for reasoned assessment to foster the realization that the event is actually meaningless. Each of these types of Bad Guy events -- the capture of Saddam, the killing of his sons, the killing of Zarqawi -- leads to a political boost for the administration which is always temporary because it is driven by emotion.

But a temporary boost that begins on November 5 is all they need and want. Democrats need a strategy to combat that -- and it can't just be defensive ("We are so happy to see Saddam convicted but that doesn't change the fact that we are in a terrible position in Iraq"). It needs to use that corrupt scheduling offensively ("the administration has led us into the most strategically disastrous war in our nation's history and has no way out, and all they can think about is how to stage show trials purely for political gain"), and that has to begin in full force now. The more this issue is talked about before November 5, the less impact it will have.

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