Senior Bush administration officials are debating whether to order military commanders to kill rather than capture Saddam Hussein to avoid an unpredictable trial that could stir up nationalist Arab sentiments and embarrass Washington by publicizing past US support for the deposed Iraqi dictator, according to defense and intelligence officials.
Trying Hussein before an Iraqi or international criminal court would present an opportunity to hold the Ba'ath Party regime accountable for its repression and murder of thousands of people over the past three decades.
Iraq's new US-backed Governing Council said this week it wants to try Hussein in an Iraqi court, something the occupation authority there has said it supports. The New York Times, citing unnamed State Department officials, reported that the administration favors creating a tribunal of Iraqi judges to try Hussein for crimes against humanity if he is caught.
But as US troops step up the hunt for Hussein near his hometown of Tikrit, the prospect of an open trial that puts him on a public stage has given pause to some in the administration, according to government officials with knowledge of the high-level meetings. Among those said to have taken part in the discussions are Vice President Dick Cheney and Secretary of Defense Donald H. Rumsfeld.
One of the officials, who is involved in the Iraq reconstruction effort, described at least one of the leaders as having "mixed feelings" about whether to kill or capture Hussein.
Cheney, whose office would not comment on the issue last night, and senior Bush advisers are said to worry that a trial would be a spectacle in which Hussein could tap into Arab anxieties about the American occupation, try to implicate the United States for previously coddling the regime, and assert Iraq's compliance with United Nations resolutions outlawing weapons of mass destruction -- measures that the administration says gave legal justification for the war.
Publicly, US officials contend that the decision to capture or kill Hussein will be up to commanders on the ground, the same scenario presented after American troops killed Hussein's sons, Uday and Qusay, in a firefight on July 22. Depending on the circumstances, the senior officer on the scene would determine whether conditions permit Hussein to be detained with minimal danger to American troops or civilians.
"This is a tactical issue," Lieutenant General Norton Schwartz, the director of operations for the Joint Chiefs of Staff, said on Tuesday. Nevertheless, the Bush administration is engaged in a fierce debate over the implications of that policy.
The discussions might be moot, as some intelligence officials say Hussein probably would fight to the death like his sons rather than face a prison cell, interrogation, and -- if he is tried by Iraqis -- possible execution.
"He didn't run from Iraq when he had the chance, and he won't be taken," said Judith Yaphe, a professor of strategic studies at the National Defense University in Washington and a former Iraq analyst at the CIA. Others say Hussein might welcome the opportunity to defend himself before the world. The former Yugoslav president, Slobodan Milosevic, has conducted his own defense before an international tribunal in The Hague, drawing media attention for more than a year. Hussein, in challenging the United States' justification for the war, would command far more world attention than Milosevic.
"I don't see him filling the glorious martyr tradition," said John C. Hulsman, a senior fellow at the Heritage Foundation, a conservative think tank in Washington. The socialist Ba'ath Party philosophy, unlike the militant brand of Islam espoused by Al Qaeda leader Osama bin Laden, is not going to survive Hussein, he said.
"It's a one-man band, so from his point of view he might try to surrender and as Milosevic" is doing "try to prove he is a victim of history," Hulsman said.
Such a prospect, however, raises concerns that a trial would create problems for the United States. One worry is that a host of embarrassing charges might be leveled at the United States. Washington supported Hussein's regime during Iraq's war against Iran between 1980 and 1988 -- including providing satellite images of Iranian military formations -- at a time when Iraqi forces used chemical weapons against troops and civilians. The United States may have even given Hussein the green light to attack Iran, according to Said K. Aburish, author of "Saddam Hussein: The Politics of Revenge."
A trial might also raise uncomfortable questions about Iraq's suspected weapons of mass destruction. So far, the United States has failed to find the alleged chemical and biological arms used as justification for the war.
Hussein could try to take advantage of the controversy surrounding the search for unconventional weapons, claiming before the court of world opinion that he had abided by the UN resolutions that barred him from having such weapons -- thus putting the United States and Britain on the defensive.
Aburish, who was involved in business deals with Iraq in the 1970s, said that the weapons programs that are the focus of such scrutiny had roots in American assistance. For example, he said that in 1976 -- when former president George H. W. Bush was director of the CIA -- Hussein's government was sold the blueprints for what was described as a pesticide plant but was later determined to have more nefarious purposes.
"We gave them the design for how to build a chemical warfare plant," Aburish said. "The initial effort involved US government approval -- in the second phase, someone woke up and said we can't do it. But [Hussein's] people put it together piecemeal," based on that design.
Hulsman said: "Saddam knows the background of America far too well to make it comfortable for the Americans. He can claim victimhood in a region replete with victimhood."
US government officials, as recently as last fall, denied having knowledge that the United States provided Iraq with materials for chemical and biological weapons -- some as recently as 1992 -- ostensibly for legitimate medical research. Rumsfeld told a Senate panel in September that he doubted its validity.
If Hussein attempts to surrender, the United States would have to accept it under most interpretations of international law governing the treatment of enemy combatants, according to John Yoo, a visiting fellow at the conservative American Enterprise Institute for Public Policy Research and a former Justice Department official. With attacks on US soldiers continuing and Hussein considered the titular head of the opposition, the law is open to interpretation.
Joseph Braude, author of "The New Iraq: Rebuilding the Country for Its People, the Middle East, and the World," said the benefit of trying Hussein for his crimes outweighs the public relations challenge that such a proceeding might present for the United States. "He certainly should be apprehended and not killed," Braude said. "It would set an important precedent for the more difficult path of truth and reconciliation in Iraq in the years ahead."
Saddam was installed and armed by the US, this will be the case for whoever Iraq's new dictator is. If there is anyone who should be facing a firing squad its those neocons war criminals and their masters in Tel Aviv who make Saddam and his hench look like angels.
I would say, we could not invade a sovereign nation (rightfully or otherwise) - that was officially at peace with all other sovereign nations - and rightfully expect to put an official of that nation on trial for what they did in their capacity as an official of that nation. I would say that whether or not such an official's former subjects elected to do so would not be something in which we invaders ought to have a say.
Further more, must we make all the mistakes the Romans made? I would say that we should leave a sovereign nation's court system to prosecute the officials it considers acted in a criminal manner.
Finally, if our enemy pledges to cease hostilities, I would say that their pledge marks the end of their hostility towards us - so long as both parties honor their obligations with respect to the other party (for example, please refer to Quran 4:92). Surely, it is Allah (swt) who knows what would be better for each and all of us.