Uncommon Sense

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Wednesday, February 12, 2003

Iraq: "Legal-style" Analysis of Colin Powell's Testimony

No links today; everything is pretty much well-known or easy to find.

A friend asked the other day if Colin Powell's evidence against Iraq, presented to the U.N. Security Council, was enough to get a conviction if the Council were an American court of law. I didn't answer, partly because I'm not a trial lawyer. I just do contracts and trademarks. But let's think about it.

In America, it usually requires a unanimous decision by a jury to convict someone; currently, about 70 to 80 percent of Americans support the war in Iraq, so by that definition Powell's evidence was not enough to convict.

On the other hand, my friend may not be asking the right question. In the US, if we think someone has committed a serious crime, we take them to trial to determine their guilt or innocence; guilt must be shown "beyond a reasonable doubt." But in federal court and many state courts, before the government can bring the accused to trial for a serious felony, a grand jury must review the evidence and decide, not if he's "guilty", but if there is enough evidence against him to justify a trial.

The grand jury's standard is not "beyond a shadow of a doubt," but merely "probable cause." And a grand jury doesn't have to be unanimous; a simple majority is sufficient. The police and prosecutor don't need to show, or even possess, all of the necessary evidence, just enough to convince the grand jury of "probable cause."

If the grand jury rules in the prosecutor's favor, then the police move in to arrest the accused and secure his home and other property. This has two effects: any additional criminal activity is stopped or hindered, and the police can marshal additional evidence for trial, free from any attempt by the accused to hide or destroy the evidence.

Are we going in to Iraq to punish Saddam, or are we going in to stop additional wrongdoing and marshal the final evidence?

Compare World War II--we held the Nuremberg and Tokyo war crimes trials AFTER we had conquered Germany and Japan, stopped the wrongdoing and marshaled evidence against the war criminals. (And while I do have serious philosophical misgivings about the very idea of those trials, the record shows that we made serious efforts to provide fair procedures, and some officers were acquitted.) If Saddam survives, he will likely face the same kind of court, complete with defense counsel, defense witnesses and a serious attempt at fairness. Thus, he gets his shot at "beyond a reasonable doubt" after the war, not before.

The evidence laid out by Colin Powell is well beyond the "probable cause" standard. Indeed, it meets the "more likely than not" standard used to win civil trials about contracts and personal injuries, and probably meets the higher "clear and convincing evidence" standard that applies in certain types of proceedings. After Powell's speech, over 70% of Americans supported war in Iraq.

What this mostly proves about the upcoming Second Gulf War is that analogies to the law are inexact. War and the law do not coexist easily; as Cicero said, "silent leges inter arma." But President Bush has clearly stated his intent to stop additional wrongdoing by Saddam and his belief that additional evidence will come to light post-invasion.

In other words, this isn't a prison sentence or an execution; it's a SWAT team raid. If Saddam and the Baathists put up a fight, they may die, just as criminals who shoot at cops often die, but it's not in punishment--it's the natural consequence of interfering with an armed person doing something dangerous. And, American and British soldiers will also die, just as cops often do when attempting to arrest the violent and depraved.

Secretary Powell showed evidence beyond the probable cause standard that Saddam is an accessory to the assassination of an American official, has violated the cease-fire agreement between the Allies and Iraq, and has directly given aid and comfort to persons who have attacked the United States and mass murdered US civilians--any one of which is casus belli or cause for war. The Clinton administration previously showed "greater than probable cause" evidence linking Saddam to the attempted assassination of former President George H.W. Bush and the 1993 World Trade Center truck bombing, both also casi belli.

Proof beyond a shadow of a doubt? No. Probable cause or better? You betcha, on all five counts. Do I think we'll find the smoking gun after we invade? Yes, and so do you, regardless of your opinion on the war itself.

I don't think any rational person believes that Saddam is telling the truth about anything. You may oppose war generally on moral grounds; you may oppose this war specifically on moral or prudential grounds; you may think Bush is a world-class liar; you may simply think that "jaw, jaw is better than war, war". But I don't think you believe Saddam's statements either. If you do, then your simple faith in human nature is inspiring, and I can get you a really good deal on a bridge in Brooklyn if you're interested.

I don't know. I think there are other nexi of the terror network that ought to be dealt with quickly. But in international politics, sometimes you have to do the possible first; if Bush and Powell see Iraq as the first good possibility, I can't say it's a bad choice. I can at least hope that one outcome of this war will be the crippling of the United Nations, a body which has failed of its primary purpose (security) and taken on an unwarranted secondary purpose (recasting every society in the world).

Steve Setzer