Justice for Saddam, Justice for Iraq:
War Crimes, Pursuing Justice, and Sovereignty

December 17, 2003

Unedited transcript prepared from a tape recording

Proceedings:
MS. PLETKA: Good morning, everybody. Thank you to our panelists and to our guests for schlepping through the rain and the ice to get here. I'm Danielle Pletka. I'm the vice president for foreign and defense policy studies of the American Enterprise Institute.

Maureen Dowd wrote about us some time ago. I don't normally read Maureen Dowd since she lost her sense of humor. But she called us a temple of triumphalism, which was a phrase that I really liked, only it wouldn't fit on my business card. And I think there's no greater moment to be a temple of triumphalism than now in the week that the 4th ID captured Saddam Hussein. And that is the proximate cause of our being here today and the topic of our discussion, which is what do we do with him.

With us to discuss these questions and explore a variety of aspects of the capture, Kanan Makiya, who's the founder of the Iraq Memory Foundation and was a member of Iraq's Constitutional Preparatory Commission, and has a significantly longer resume, that you should find on your chair. Neil Kritz, who is the director of the Rule of Law Program for the United States Institute of Peace. And Hassan Mneimneh, who's the director of the Documents Project for the Iraq Memory Foundation and co-director of the Iraq Research and Documentation Project at Harvard University.

We're going to divide our conversation up slightly and open up for questions afterwards. But Kanan is going to talk a little bit about the Memory Foundation, tell you a little bit about what it does and what his hopes and dreams are for it in the future of Iraq. Hassan is going to talk a little bit about some particular documents and what they teach us and what he, Kanan, and others have learned about particular officials of the Baath Party. And Neil is going to talk a little bit about how to try Saddam. What do we do--international, Iraqi tribunal, hybrid tribunal--the pros and cons of all those different things.

So with that brief introduction, if I can turn to you, Kanan.

MR. MAKIYA: Thanks, Danielle. I will begin with a brief word about the Memory Foundation because its existence is very connected to the issue of Saddam and how we deal with him, in a paradoxical kind of way. And then I will say a word or two about my view on the upcoming most important issue of how Saddam ought to be tried, and then pass on to my colleagues.

The Iraq Memory Foundation is an idea, I think, whose time has come in Arab Middle Eastern politics. We often in the Arab world tend to move from one crisis to the next or from one period of--from one brutal regime on to the next by way of forgetting or putting aside our past, as though dealing with it were somehow going to be an obstacle to any future improvement in the situation. The Memory Foundation is based on a very opposite kind of idea. The idea here is that we need to single out the period, that started in 1968 and that has ended in 2003. We need to lift it out of the kind of continuum of Iraqi political history in the 20th century and of Arab political history.

The dates, incidentally, are very important. The Baath Party came to power right after the 1967 defeat and installed itself very much on the basis of the argument or the basis of the proposition that it was going to deal with that Arab defeat, which was going to find a solution to the--it asked the question in demonstrations that preceded the coup that led to the takeover of power, was who was behind the Arab defeat? And lo and behold, as soon as the coup took place, they proceeded within months to target, in the beginning, Iraq's tiny, minuscule, and utterly powerless remnants of its Jewish community, and there began a campaign that lasted for a year or so, an antisemitic campaign, in which they claimed to have found the agents of the fifth column. Of course, there were Iraqi Muslims involved as well, and Christians, out of the 14 bodies that were hanging in [inaudible] Square in January 1969. Nine were Jews, four were Muslims, and I think two or three were Christians--or a couple were Christians.

So from that, which I think of and wrote of in "Republic of Fear," we have the thin end of the wedge of what turns into a regime of terror that then touches literally everybody through its operations.

So a certain politics was associated with that, a very particular, a very special phase, I say, discontinuous with the rest of Iraqi history. Not that it was glorious before and inglorious after. No, certainly there are historians who will find continuities. But politically there was a rupture with the traditional pattern of doing things. The Baath regime that has been overthrown in 2003 is the single most--longest lasting regime in modern Iraqi political history, longer even than the monarchy. That's to be noted. Somehow it succeeded in finding some form of stability, which has to be rooted in a kind of legitimacy however deformed, distorted. And therefore the significance of this regime is that it cannot simply be reduced to individual tyrants and dictators who succeeded somehow in lasting such a very long period of time. The whole social structure of the country was changed. Power was organized differently, and we had in effect a true police state, as opposed to just a military dictatorship, which we had a previous, of course long-track, record of in Iraq. So what we had was a police state really modeled, I argued in my books, on classic totalitarian regimes of Stalinism, and Hitler in Germany, and we had an Arab version of that.

For these reasons, the Iraq Memory Foundation--okay, so what the Iraq Memory Foundation does is it says let's take that period of Iraqi history, let's lift it out of the mainstream, let's put it, so to speak, under the microscope. And to do that, we rest our case on three things.

One, which we see ourselves as concerned with, collecting, preserving, and in a very professional way indexing catalogues and so on. First of all, there are documents, the paper trail that this regime left behind. In a regime that is based on the principle of total and complete mistrust and installation of fear in every individual, it is absolutely essential to keep a record of everything that you do; otherwise, you cannot tell if any decision has been followed through. And there is an enormous paper record of this regime, simply mind-blowing in its size and dimensions.

We feel that that paper record needs to be taken very, very seriously, not just rifled through for the purposes of the coming trials. The Iraq Memory Foundation is not about the coming trials, it's about a very long-term project. It looks to the next generation or so of Iraqis, next several generations of Iraqis, and it says this archive, this paper trail is one central component--I will come to the two others--absolutely central component of the way in which we want future generations of Iraqis to grow up unable to bypass, so to speak.

We're talking here about records in particular, not of the whole state, but of those aberrant institutions inside the state--the Mahabharat, the party; there are overlapping security agencies, and so on. And our argument is that the paperwork of these institutions needs to be treated in a very special kind of way. A national archive, yes, but not quite just a national archive in the sense in which an ordinary country would have a national archive. We need an institution that is going to be in charge of those documents.

We argue in the Iraq Memory Foundation that that should not be at the moment, given Iraq's very turbulent political sort of situation, a government institution, but a body governed certainly by law--we're in the process of drafting such a law and proposing it to the governing council and to the United States--a law similar to in many ways--the best example of a special thing that I can think of is in Germany, the Gauck Commission, where the Stasi files are held under the aegis of that institution, which has cabinet status and which is a part of the government, reports directly to the chancellery. And we are hewing [ph] for something slightly different in the Iraqi case, but for a law in many respects similar to that.

The second important component of the Memory Foundation is oral history records. We are at the moment, unlike, say, in the Holocaust, where you are dealing with an event that happened some half a century ago, where the survivors, the witnesses of the atrocities are right there and then, many of them are still alive. Obviously we wish to include as part of our archive an ongoing project of recording long testimonies, professionally handled, not with a view to any fancy camera work, but where the central character--carefully researched, of course--tells a story that is the counterpart to the story that is told in the regime's own words and its own paperwork. And we wish to build a library of thousands of such interviews that would complement the paper trail.

The third component is the intellectual productions during this period 1968-2003, namely the art work that either justified, apologized for, or criticized this period of brutality and repression--the songs, the poems, the paintings, the books that were written--all, of course, not in general, not including everything--we're not a library of that nature--but those in particular that deal with, engage with the phenomenon of cruelty, brutality, genocide, et cetera, that typified this regime.

So these are the three pillars of the Iraq Memory Foundation. My colleague Hassan directs the documents section of it and will be speaking to you about the documents we have in our possession and our control.

Let me say that of those three components, in some sense the most pressing, the one we have actually worked on the most at this point in time, is the paper record. And I wish to make a plea here and connect this with the coming trial of Saddam.

I believe the upcoming trial should not be just about the person of Saddam. The person of Saddam stands at the pinnacle of a system of power that itself needs to be put under scrutiny. It is the system. The trial of Saddam as it should be or ought to be handled, not on the basis just of individual cases he can be connected with--personal killings he might have done or ordered or personally done himself, which I suspect we will find evidence for, or major crimes like the Enfal and what was done to the suppression of the insurgents after the 1991 uprising--but we need to indict the entire system that he created and that created him. Because only in this way can we affect through this trial as a starting point, can we affect the future of Iraq, the long-term future of the country.

If it is the system itself that is indicted, and nothing does that better than the paper record, then we will have made a contribution to the improvement of Arab political culture, Iraqi political culture. We will have made a contribution to moving in a democratic direction. We will have built an impossible-to-overcome mountain in front of all those who would deny what happened, who would rather forget what happened. And we would have made it impossible for any young Iraqi in the coming 10, 20 years, as he or she reflects upon who they are, to bypass this period. We would therefore have created a culture, a sense of who one is politically in Iraq, based upon an acceptance of our own frailty, of our own responsibility for what we did to ourselves--for that's in a very important sense what we're talking about here--and not a notion of identity based on bombastic rhetoric that will be found in these documents or the false heroics of Arab nationalist politics and-- [microphone went off.]

-- in the very long run in this part of the world, including especially the Arab world, [inaudible] at least. Therefore the impact is not just of this trial, certainly is not just of inside Iraq, but it will have--it will reverberate throughout the Arab--the Middle Eastern political scene for decades to come.

How, therefore it is handled, whether it is handled with this particular point in mind, which is what the Memory Foundation argues for, is crucial.

Now to end on just one last note. You would think that some of the things I'm saying are obvious, perhaps many of you will agree with me on that, that the paper trail, for instance, is of crucial importance in the upcoming trial. And yet the paradox is that there's no one, really, in the Iraq--in the--I am sad to say there's no one in the United States government that I know of or certainly even in the governing council until very recently, who has given this matter the kind of serious thought and consideration that was needed.

We always knew he or his henchmen would be caught. We've had this paper trail for many, many months now. It has been locked away from people like ourselves for some six, seven months by the Iraq Survey Group, and extremely secretive organization, a sort of collection of different intelligence agencies that simply has not let us step through the door. I think that's a travesty. And they used the enormous resources that the United States government put at their command--1,300 employees, 600 million or so dollars, I forget--the numbers may be more than that--to look for just one thing. Those same resources could have been--simultaneously we could have looked for 10 things, eight things. We could have looked for many more things with almost as much--with as much efficiency.

And a little bit of consultation and working with people like ourselves who've spent years on these kinds of documents, thinking about them since 1991, at least, in a major way, worrying about them, trying to get them over to the United States, trying to save the archive that was captured during 1991--it developed into datasets that were necessary to analyze, the categories and so on--making the mistakes that people make, trying to figure out how easy it was to process this, testing it out; can people process 500 pages a week or 1,000 pages a week, what's the loss in quality of information if we press them to do more; learning the hard way, so to speak, the difficulty of processing paperwork of this nature. This is not an exercise that can be left to OCR-type technology because it doesn't work in Arabic, and most of these documents are handwritten, and so on and so forth. There's a lot of hard work.

We need, quite frankly, an Iraq Memory Foundation doing just the documents we have now. We need at least 40, 50 people right away just to be able to handle the 3 million or so pages that Hassan will shortly be talking to you about, including to finish the job on the documents that were--the North Iraq dataset and the Kuwait dataset that we have.

But that is not yet saying anything compared to--what we have is a tiny minuscule proportion of what the United States government has inside the ISG and is only now beginning to deal with the question of what should happen to that archive--what should happen. I think it should be a matter of extreme-- I'm sorry, I know I'm going on -- very wrong to pass that on to Iraqi, for instance, Ministry of Human Rights. That is, you know, a--which is perhaps being considered. Or to pass it through government structures. We must have first the law that governs this, that protects this, and then the professional people capable of keeping the integrity of this archive, as an archive, alive, and capable of thinking about it for the very, very long term.

Thank you very much.

MS. PLETKA: Thank you, Kanan. I apologize to everybody for the sound system. I'm going to get a sign made that says "I apologize for the sound system." We've been having trouble with it we're trying to repair.

Let me turn to Hassan.

MR. MNEIMNEH: The discussion about the tribunal that is going ultimately to try Saddam and other regime members, both in form and in content has just started. Nonetheless, for the sake of my presentation, we can think of two poles, two general directions that this tribunal might take. One would be the representative form; the other would be the comprehensive form.

The representative would try to, for example, in the case of, whether it's Saddam or others, select a number of cases that are high-profile cases--whether it's the [inaudible] or the Enfal campaign, maybe episodes of the Enfal campaign, and the repression that followed the 1991 uprising in the south, and maybe even, for communitarian balance, the massacre of Suni tribesmen after an attempted coup--and on the basis of these cases, ultimately get to the point of convicting Saddam. That would be the representative approach.

Another approach would be more comprehensive. It would try to be systematic and seek the general rather than the specific in terms of what level and what shape criminality within the regime. And this is the one that Kanan was advocating.

Regardless of which form the tribunal takes--and as you can imagine, there are considerations both of practicality and of principle in both. I mean, practicality, first and foremost resources, whether it's financial, whether it's time, whether it's the type of advice and the source of advice that can be available for the court. And the principle, it has to do with the sense of justice or the definition, if you like, of justice in currency in Iraqi society and the feeling of ownership ultimately. And also, to what extent any set of representative cases can be viewed as indeed representative-- [microphone went off] --that might not be sufficient, therefore.

In any case, regardless of the shape, of the form of the content of the court, the documents that we currently hold and the documents that we are planning and doing our best to get hold of can provide ample support and ample evidence in order to help whichever process ends up being in motion. And what I'd like to do in the following few minutes, just give you a sense, give you, if you like, a little bit of the flavor of what is in those documents and what are their limitations.

Actually, I'd like to start with their limitations, especially in the case of Saddam, because since the moment Saddam was captured, I've been thinking hard--what is it in our archive, which is already, I mean, in terms of size, bigger than most archives that are available anywhere else, despite the fact that we keep on insisting that our holdings amount to 1 percent of what we would like to be holding. But it's currently more than 6 million pages of documents.

What is in our archive that can be used? And if we were to opt for the representative form of the court--meaning do we have a smoking gun anywhere in those 6 million pages--and the short answer is no. Because it seems that, to a large extent, Saddam was shielded from being responsible for, if you like, having his signature on a smoking gun by a system that in itself basically constitutes the high level of criminality that ultimately can be put to judgment.

What we have is a structure of oppression with Saddam on top and with multiple layers of intermediaries. These intermediaries, I do not think we should view them in terms of Saddam seeking a plausible deniability defense at some point along the lines of "I did not know" or "I gave general orders." No, it's more along the lines of Saddam having elevated himself to a deity-like status, and therefore what he does is issue general statements. When you read in the press or when you hear him, even those communiques he issued after the fall of the regime, they have a very general character that is almost boringly rhetorical. I mean, why would someone who has the opportunity of making a statement that has in fact limited himself to broad generalities virtually never mentioning anyone specifically by name? The answer seems to be that Saddam indeed believed in this deity-like status, and therefore what we have is an abundance of documents in which a whole process is set in motion, a whole process that might take months and that might take literally thousands upon thousands of man-hours of work based on the words uttered by Saddam.

And the way the word was usually framed in the originating document is between a special set of quotation marks reminiscent, for those of you who know Arabic or, for that matter, any language that is used for sacred purposes, of how the Koranic verses are surrounded. Whenever you quote in Arabic script a Koranic verse, the Koranic verse is surrounded by a special type of brackets. The same with Kanan's-- the same with Saddam's words.

[Laughter.]

MR. MNEIMNEH: Not quite, yeah. Same with Saddam's words. Sorry, Kanan.

So what we have in here, for example, I'll mention, actually, mention a number of such prophesies that were set in motion. Sometime in 1999, Saddam decided that enough talk about massacres being perpetrated by the regime. The regime members have suffered, and especially in 1991, and were massacred by the uprising. So let's go on and have a similar process to determine what massacres exist in which regime members were [inaudible]. Actually, it comes in the form of one line of Saddam, a line that goes something--I'm paraphrasing in here. "They speak of massacres. We were the victims of massacres." On the basis of that line, a whole process was set in motion with the Baath Party structure in its totality trying to find massacres--which they never did--and trying to find at least atrocities that can be said to be, if you like, the equivalent of massacres. We have piles of documents in which this prophesy is going on, on the basis of that line.

Saddam's interference in everyday life in Iraq was such that newspaper articles, or even newspaper cartoons, had an audience of one: Saddam. A cartoonist has the cartoon included in the newspaper, Saddam looks at it and makes a pronouncement: To be transformed into a painting. And the process goes on. Or to be Not Suitable. And I wonder to what would happen to the cartoonist in that case.

But in any case, I mean, all of these illustrations in order to show that in the record Saddam is shielded from the actual acts of criminality by multiple layers. And therefore, if we are to look--if Saddam were to be tried for representative cases, ultimately it's circumstantial evidence and responsibility through basically the chain of authority.

A far more convincing--not just for us, but in particular for Iraqis, for Iraqi society, for the Iraqi individual--a far more convincing approach can be based on the documents that we have. What we have in the case of one collection, for example, the Baath Regional Command Collection, which is the Baath Party--actually the national leadership of the Baath Party in Iraq, but the reference to "regional" here is part of the fiction that Iraq is one region, while the nationstate is not Iraq, it's the Arab world in its totality.

In any case, in the Baath Regional Command Collection, what we have, we have the description of the systematic penetration of Iraqi society by Baath Party institutions in such a way to constitute an attitude of control. In a normal government, the balance of power is ensured through basically the legislative, the judiciary, and the executive checking each other. In the case of the Saddam regime, the balance of power is ensured through at least four parallel tracks of control and authority--one being the Baath Party, another being the security directorate and its affiliate organization, a third being the armed forces, and the fourth being the intelligence services.

So here we have, when we speak about de-Baathification or the need to ban the Baath Party, the point here is not clearly about ideology or trying to fight a system of thought. That by nature will get the treatment that it deserves in the marketplace of ideas. But what we're talking about is that parallel structure that Saddam ultimately erected and that is documented at length in the record that we have.

So it's ultimately meaning the documents that we have and the documents that we can collect seem to favor the comprehensive approach, the systematic approach, the general approach at indicting the regime. However, as I mentioned, we merely have 1 percent or so of the total documentary record, and it is perfectly possible that in the remaining 99 percent Saddam has gone beyond his deity-like status into something more concrete. And in that case, that would be a smoking gun that could be used in a specific case.

Thank you.

MS. PLETKA: Thank you, Hassan, very much.

Neil?

MR. KRITZ: Thank you.

In discussing the question of what's the appropriate model for these trials to proceed, I actually want to put it in a larger context of the progress that's been made in recent with respect to approaches in the international community to justice for mass atrocities, like the ones we're just talking about. And in particular, after years of some very hard work by a lot of people around the world, as you know, of course, in the course of the past year, the International Criminal Court came into existence.

Now, the International Criminal Court, the ICC, of course does not have jurisdiction over the crimes we're looking at in Iraq. But it's important for a different reason. Because in it, the international community adopted a fundamental principle of this new body of international justice known as complementarity. The fundamental basis of the ICC states clearly that in all of these cases, in every instance--in Iraq, certainly--local justice is always to be preferred and an internationalized approach to justice is one to be taken and adopted only when the local option simply does not exist and is not available.

That lesson and that theme which the international community has adopted--perhaps not the United States, but certainly many other countries around the world have adopted--is put, in a sense, to its first test, its first major test in the case of Iraq today. And arguably, that basic ICC principle would, in implementation, suggest that when the local society has a determination to in fact pursue justice, the international community has an obligation to step in, to roll up its sleeves, and to try to figure out how best to help that process succeed in a way that is fair and credible and satisfies international standards.

There was mention by Saddam [sic] of the importance of ownership. And that, of course, is the reason why the ICC adopted this principle--because there's a recognition, because of the lessons we've learned in unfortunately too may of these cases in recent years that local society needs to feel that it finally, after having no control of its own fate for so many years of repression, can now actually take control of how it approaches its past and how it moves to its future. War crimes trials like this can have a transformational effect on society. But for that to happen, society needs to be engaged, needs to feel that this is really their process and not yet one more thing that's being done to them or for them by someone else.

There's a curious irony, I would suggest, in the approach of many to this issue, particularly in the course of the last few days since Saddam's apprehension. There have been many voices in the international community which have argued quite firmly in recent months that complex processes like governance and constitution-making will only have legitimacy in Iraq in the context of no occupation and in the context of complete ownership by Iraqis themselves. When it comes to the issue of establishing justice for decades of atrocities, many of those same voices have flipped completely and suggest that it will only have legitimacy if it's taken out of the hands of Iraqis and controlled by internationals who can establish a more pristine system of justice.

There was an interesting survey that was done by Physicians for Human Rights this summer in southern Iraq that suggest something that I think many people had not expected; namely, that an overwhelming percentage of Iraqis in the survey felt that trials would be important to deter future abuses, trials were essential; but a very small percentage--as a matter of fact, only 12 percent of Iraqis--were in favor of an international tribunal approach to the question.

The options include a wholly internationalized body--I would suggest that few people are advocating that these days; a completely national process, namely, owned and run solely by Iraqis; or some kind of a hybrid approach. And the model in the first test case we have of that approach is the special court that's functioning now in Sierra Leone to prosecute atrocities committed during the war there. The Sierra Leone tribunal has proven to be more efficient both in terms of cost and in terms of the time it takes to move forward in getting organized and proceeding to trial than, for example, the international tribunals for Yugoslavia and Rwanda. And that kind of an approach, in principle, remains an option, the basic model being that you have a mix. You have international judges and prosecutors and investigators side-by-side with local officials in partnership in moving forward with the proceedings.

The statute that was adopted--and of course it needs to be remembered that before Saddam was apprehended--at least some days before, by coincidence--the Iraqi governing council adopted a statute and made a decision about how to proceed in establishing a tribunal to establish accountability for crimes of the regime. And this statute is intriguing in the sense that it establishes yet a different model, a new model that has not been tried before. It provides for a national tribunal, an Iraqi tribunal, not a formal hybrid.

But what it does provide for is extensive international involvement in the process, in two important ways. First, it provides the option for the appointment of international judges to the trial and appeals chambers, in addition to Iraqi judges. Secondly, it provides and in fact requires the appointment of international advisors and observers in each of the component units of the tribunal. Within the trial and appeals chambers, within the prosecution department, within the department of investigative judges, there have to be internationals assisting, advising, providing technical assistance. And importantly, the Iraqis have required that there be internationals to monitor the process embedded. This is a war in which we've talked so much about the embedding of journalists. Well, now Iraqis have invited and requested the embedding of the international community into their own court system to monitor the process and ensure that this actually satisfies international standards of justice.

There is a debate, at least for some, in terms of capacity to pursue what are inevitably very complex crimes and prosecutions. There are many very capable Iraqi jurists within Iraq's system, well-trained. That said, assistance is needed and for Iraqis to do it themselves, there will be problems. Simply the issues that Kanan and Hassan have talked about in terms of setting up of a system to manage such a massive amount of evidence will assistance. That assistance, I would suggest, should be broadly international. And while Americans have been taking the lead in the coalition in providing that assistance, if that remains limited to American involvement in this tribunal, then I will suggest that it will not succeed in the way that it needs to. Because this is a task for the entire international community, to assist Iraqis in moving forward and in establishing justice.

This isn't going to happen tomorrow. And despite some of the comments that have been made, including by members of the governing council in the last couple of days, it will take months to actually build this kind of a tribunal, to build this system, to select, recruit, and train judges, investigators, prosecutors, staff, to build a database system, to put together all the pieces, to establish security which will be essential for this process--to establish a process of witness protection, for example, a program to deal with victims who come forward to testify.

Building this system, if it's done right, really will take time. It will also take time to actually build proper cases. As Hassan suggested, very importantly, it's one thing to say, oh, we all know what Saddam did; it's another thing to be able to prove it in a court of law, satisfying all standards, with a clear chain of evidence to follow.

There is some question as well as to what the ordering of this should be. And it's not clear that the trial of Saddam should necessarily be first. There are many other cases to be pursued of others within the regime. Some of these tribunals have in fact pursued a prosecution strategy of moving up the ladder, as it were. In addition, it will take some time to actually put together the proper case against Saddam and to work out some of the kinks, quite frankly, that will be inevitable in the running of a brand-new body such as this. And so I would suggest that we may be still some time off before we move forward to an actual trial for Saddam.

I think this does need to be a question of representative crimes. The statute, by the way, provides jurisdiction as well, explicitly, for looking at crimes committed in the context of the wars with Iran and Kuwait. And for the tribunal to actually carefully select which cases--which is standard for any prosecutor any day of the week, selecting which crimes I'm going to focus on in a case.

This may be a bit of a show trial, but in a different sense than what one normally assumes--in the sense that, if done properly, making a clear statement, demonstrating clearly that in the new Iraq even Saddam has his rights protected, is entitled to due process of law, makes an important statement, I think, for all Iraqis.

Lastly, just to suggest that one of the lessons--and as I said, unfortunately there have been too many atrocities in too many countries in recent years to provide us with a rich body of lessons--that one of those is that these trials will be important in establishing the basic facts in helping Iraq move forward, but they will only be able to touch the tip of the iceberg. A regime that was so comprehensive in its reach and in its atrocities over so many years implicates so many people. This tribunal will have to be very selective, will have to only touch a small piece of it. And it will take years for Iraqi society to develop appropriate mechanisms and approaches--the museum and education center that Kanan has been working to develop so carefully; some kind of a truth and reconciliation process, perhaps, that Iraqis first, having been so isolated, need to look at experiences developed in many other countries and decide what's appropriate and what's to be adapted for Iraq; dealing with property restitution to establish a sense of justice. This needs to be a comprehensive approach to really establish a sense of justice that can lead to Iraq moving forward.

Thank you.

MS. PLETKA: Thank you very much. We're going to move to questions. Thank you for raising your hands. I don't think I have a person with a microphone in the room yet, although they're coming. But in any case, I'm going to do the rude thing and hog the microphone that I have, to ask the first question. Because Kanan alluded to something that I think it's important that we explore.

For those people who worked on Iraq issues prior to the downfall of Saddam, one of the most frustrating things was the inability of the U.S. government to focus on one particular set of Iraqis that they could work with as the opposition, whether it was a broad-based group or a narrow group. And there was a lot of in-fighting, as everybody knows.

One of the things that it appears might happen now, given the enormous amount of money out there and the continuing divisions within the U.S. government and inside the international community, is that rather than picking a commission or a repository, that we may end up trying to let a thousand flowers bloom--a phrase that has taken on great odious meaning in my mind since the beginning of this process. In other words, that we may say the Ministry of Human Rights can get some documents and the Kurds can get some documents and this institution and maybe the mullahs should have some, and that there will be different standards and everything else.

Can you just talk a little bit about A) why you think that might be a possibility, because you alluded to it; and 2) what the dangers are why you think it shouldn't happen. And maybe the other panelists would like to address that, too.

MR. MAKIYA: Well, the key danger I see from very intensive rounds of discussions with various officials in the United States government is that this business of dealing with the documents is treated as part of building civil society. And they're two completely separate approaches. I see these documents as requiring a centralized approach. This is not a place for what you call let a hundred flowers bloom in terms of each NGO working on its little pile. This is not the place to build civil society. We need to set up a factory to process these documents, not a thousand little home cottage industries running around. We need centralized processes, data systems that would go through them. And that is the big challenge facing us.

That message does not seem to be evident to at least some officials that I speak to, and I worry greatly because they have power over these documents. We need to set up in Iraq I'm going to call it a factory, a document factory, which runs to very high standards of professionalism, which has a very closed nature to it; that is, leaks are--we are to treat this almost like a [inaudible] grave consequences to the leaking of information from these files. Again, that is not in the spirit of a whole bunch of little NGOs getting together and working on these documents.

This is not the place to play politics. This is not the place for grassroots democracy. This is the place for top-down efficiency, very careful management, for one very important reason: to keep intact what I call the integrity of the archive, to make it possible for scholars down the line, to make it possible for future generations of Iraqis to say this stuff was not tampered with, that there's a chain of custody involved here, that a great deal of care was taken with how this collection was put together. We need to be able to say that about these collections. And of course that's lost now.

Unfortunately, of course, Pandora's box was opened after the Gulf War and many groups in Iraq have private collections of documents. That's done. But we don't need to proceed along that line, we don't need to continue that process. Now is the time to centralize. Eventually, if we adopt such an approach, if the proper law is developed, if an institution is developed, then these organizations will gravitate towards it and will gradually pass on their documents.

The documents are today being seriously abused. There are so-called amongst these thousand flowers that supposedly are blooming--actually very, very few of them deal with documents--but amongst them are those who are selling documents. Others are giving documents away to families, for instance, who are looking for lost ones. But there are many families, and you're not supposed to give this stuff away, and other families have the right to know as well. And some of this activity, unfortunately, is being indirectly and through the best of intentions, but being fostered and developed by practices of parts of the United States government inside Iraq.

Our message here has been please don't do it this way. The law that governs these items is crucial. [change tape]

MR. MAKIYA: --and actually from the State Department. The [inaudible] of development of the--we talk of the enormous and very generous sums that the American taxpayers through their representatives have given to the Iraqi people. Certainly, yes. But it turns out the structures for the dispensation of those funds are totally, as of this point in time, nonexistent. Talking about months, it's going to take months just to be able to begin to know to whom the various components of these sums of money are going.

The Memory Foundation is supposed to have had an allocation. We were told it doesn't exist at all in the books yesterday. Is this true? How do I even go about finding out about a thing like that? Apparently there's no commitment whatsoever to anything. We don't even know-- Now it turns out that grants are going to become contracts, and who--you know, how do NGOs deal with contracts? And so on. We find out that there's absolutely nothing that can be counted upon, even in terms of the enormous sums of money the U.S. already, through their representatives, said should go for this reconstruction process.

If, according to what I just learned yesterday, the process is so gummed up already, well, he's been caught and we have to get on with these trials. And while--and certainly it will take months. We're so far behind, I fear, we're so far behind that very basic work--our work, for instance, on the collection of six million or so documents. We have the three million we got out of the regional command headquarters and the three million or so that we've been working on from the Kurdish archives. That work is going to be seriously inhibited. I mean, everything is at this moment--there's about eight or nine of us doing all of this out of our own pockets and paying our own expenses. You can't run a system like this, this way.

So anyway. I'll leave it there.

MR. KRITZ: If I could, two quick points on that as well. One, again, one of the lessons that we've learned from so many of the cases--for example, after the fall of the communist regimes in Eastern Europe and from elsewhere--is that these files are hugely explosive. Who holds the files holds power. That's a lesson that we've seen over and over again. And unfortunately, they will be used for political reasons. They will be used--that's one of the reasons, for example, why most of the major political parties in Iraq today are holding on to their own files, because they want to be able to use them in various ways.

The second point relates to the trials. One of the things that will be crucial, if any of this is going to be usable as evidence in court, is going to be clearly being able to establish and confirm a chain of custody for this evidence. And if this simply winds up going through everyone's hands in every possible direction, then much of that, potentially, can be lost for its evidence value.

MS. PLETKA: Yes, sir. Thank you for forbearing.

QUESTION: My name is Said Erekat from [inaudible] newspaper. I'm not so sure how much expertise the panel has in the complexities of war crime jurisprudence and so on. But my question is this. Unless this trial is really quick and dirty, wouldn't it have the potential to open a Pandora's box, especially if it goes into the massacre of [inaudible], the use of chemical weapons and so on, and then tracing these chemical weapons back to where they came from? What is to prevent Saddam's lawyers--I mean, he's going to have thousands of lawyers that will come to his aid--to call to the stand, for instance, Defense Secretary Rumsfeld and his visit in '83, or April Glaspie and what happened in the lead-up to the war in Iraq, that invasion of Iraq; or what happened with this [microphone went off.]

MR. MNEIMNEH: It depends on what Pandora's box it ends up opening. Because there are some Pandora's boxes that, I guess, speaking personally, many in the field would like to see opened, would like to see basically exposed. For example, if what ends up happening is exposing the various levels of coopting the Saddam regime, cooperating with the Saddam regime, or for that matter allowing the Saddam regime to do what it has done in terms of atrocities, let that be open. Why not?

MR. MAKIYA: Many--and I like that way that Hassan put it, which Pandora's box. It appears that our organization, the Iraq Memory Foundation, has, we found recently from the meeting of the Arab League, created enormous consternation amongst quarters that we never imagined cared one jot whether or not we existed or not. We were accused of being a Zionist enterprise by Arab foreign ministers, by very, very high officials in the Arab League, publicly. And it's very interesting that an organization devoted to preserving the memory of what happened between '68-2003, of--in fact, more than just preserving, of making it absolutely impossible to avoid what happened in '68 to 2003; that wants to make that record of atrocity, which is of course a record not just for Iraq, but it's a record that affects the whole Arab world. And the Arab world knows that, or Arab Leagueists currently in power know that; wants to make that record, put it up as a mirror so that when we look at ourselves in the future, future generations, we see that and we know that that, too, is part of who we are.

That is a way of building upon who one is that I think is a point of departure, is one of humility, one of recognition--one of recognition of self-limitation. That is, of course, foreign in Arab politics. And there are many fears associated with this trial and with what the Iraqi Memory Foundation is all about, associated with writing over the--eliding over the past, forgetting it, pushing it under the rug, getting over Saddam--make the trial fast and quick and just about Saddam personally. Avoid the system. Avoid the fact that this is really about what happened to Arab politics since 1967. Avoid the fact that Iraq is not--true, it's exceptional in its atrocities, but also it is part of a--it's the exception that proves the norm. And it is--I very much hope that this trial opens up those Pandora's boxes, and for that it is in the best interest of every Arab and Muslim across the world.

Thank you.

QUESTION: Elise Labott with CNN. I'd like to follow up on something Kanan Makiya just said about there's a tendency to want to just do it quick and dirty but-- I just wanted to know what the danger is. You said it's going to take--obviously it's going to take a very long time to prepare a system, to prepare a trial, and at the same time, it seems--and it is about, you know--yes, it's about showing international justice, but it's also about, you know, Iraq looking in the mirror, as you said. How do you balance the need to find out what happened and the need for justice and to have some closure with the need for Iraqis to kind of move on with their lives and, you know, start the task of rebuilding and things like that? And is there a danger of this dragging on too long? And is there room in that for things such as you said as truth and reconciliation committees and the museum you're talking about--those ways that people can deal with those things while continuing to just move on? Thank you.

MR. MAKIYA: You do it by the professionalism and seriousness of intent and resources that you put to the whole enterprise right from the outset. That is, I agree there's a balance to be struck. You're absolutely right. But if we go about this very, very professionally and with deadly seriousness--we work on the documents on the one hand, we start working on the interviews with survivors, witnesses, potential affidavits on the other; we build the structures that Neil was talking about earlier for the tribunal itself; we prepare the laws. And we move on all these fronts fast, professionally, demanding always the highest standards of quality and professionalism. Then even if we have to do it in a relatively short period of time--and the most desirable, from some ideal point of view, would be a year or two years or something like that--even then, people will understand that we will at least be able to approximate that which we [inaudible]. It is how we go about it, I think, that's the most important thing of all.

MR. KRITZ: Two points. One is that these processes, like it or not, what everyone wants to try and do will take years and will last years in Iraq. Emerging from decades of this kind of system, from this kind of a trauma, people are not going to be able to deal with that overnight. It will take years. It needs to be combined, however, with positive movements forward. So many of the steps that will be undertaken now in terms of, for example, hopefully, a robust process in which, at all levels of Iraqi society, people will be engaged in constitutional discussions about visions of what they want their society to look like, of building a new economy, of building a system in which people actually have an opportunity to pursue their dreams and goals without fear. Those things need to be put in place simultaneously, not sequentially. And this process will need to go forward, but it needs to be also realized that it will take some amount of time.

One of the mistakes that's been made, unfortunately, in other prior cases in other countries is some assumption that in fact, well, we're going to have war crimes trials now for years and therefore we're not going to allow society to do anything else, and then afterwards we'll move to maybe thinking about some other kind of a process. These are complex problems. They create complex problems and illnesses within society. And they require complex solutions and multifaceted ones.

QUESTION: Good morning. Bob [inaudible], Voice of America. Very briefly, I'd like clarification on two points. Mr. Kritz, you seem to be saying that the difference between a hybrid tribunal such as that in Sierra Leone and the national tribunal you talked about would be that the latter, the national tribunal, would control the entire process. Even though it would hire international judges, advisors, it would control the overall process and would control the sentences that eventually could be handed down to Saddam Hussein and other senior party officials. Maybe you could comment on that.

Second, Mr. Mneimneh, it's not quite clear to me what the difference between representative and comprehensive justice is. Perhaps you could clarify the difference between the two and why the documents you have in your possession seem to be favoring using the latter approach in a trial of Saddam and other senior party officials. Thank you.

MR. KRITZ: Essentially, that is the difference, but with one clarification. Namely, in the Iraqi model, at least as it so far has been adopted, it remains to be determined what the balance will be among the judges between Iraqi and international judges. And that means that it won't be, in any event, Iraqis alone deciding things like sentencing. Those judges will be full judges on the trial and appeals chambers, with every bit as much authority and influence as their Iraqi counterparts.

One of the differences with Sierra Leone, though, is the fact that while that parity of internationals and locals would exist among the judges, the statute as adopted by the governing council does provide that, for example, in the other units of the--prosecution, for example--that Iraqi nationals will fill those roles, and internationals will simply fill advisory, assistance, and monitoring roles. In the case of the full hybrid in Sierra Leone, you have an international prosecutor, you have internationals in many of the senior positions.

MR. MNEIMNEH: To sum it up very briefly, I would say representative is case-based as opposed to comprehensive being statute-based. Ultimately the two have to converge to--both approaches converge to one same result, meaning any indictment, any process would have to basically establish that crimes have been committed against individuals. But in the comprehensive, I was referring more to, for example, that the very creation of a system of criminality, the very allocation of, let's say, powers of execution to minor officers all over the place, that can be part of not simply a set of cases that are to be tried in order to establish, let's say, Saddam or other members of the regime's guilt with regard to individual cases, but at a more systematic level. So one is structured; the other is individual case-based.

QUESTION: We have ledgers of every secondary schoolchild in Iraq, which essentially amount to a blacklist of those children. They're [inaudible] by names, complex things, huge registers, Baath Party registers. Is that an indictable--is that a criminal--can that kind of a document, thousands of them we have, which really do cover probably every secondary schoolchild in Iraq, in which marked in red are various relatives and so on of that person who might have been executed, imprisoned on false charges, and the whole register acts as a kind of check on every child that's going to haunt them for the rest of their life. Is that an indictable offense? Is a document of that nature possible to introduce in a trial like this? It sort of deals with the question, just indirectly.

MR. KRITZ: One would have to examine it more carefully, but in principle, that in itself, at least under the terms of the crimes established--and there's a fairly detailed catalogue, of course, [inaudible] the crimes against humanity, war crimes, et cetera, within the statute--that in itself would not be an indictable offense. If the document in fact is part of a chain that can lead to a demonstration of how the system--for example, showing the execution of those relatives. If this is part of the map that allows you to prove the kinds of crimes that were committed, that are indictable, then it may be usable as part of the broader investigation.

QUESTION: Peter Selvin at the Washington Post. Kanan, if I might ask you to look at the personal case against Saddam Hussein based on the documents you have, and also the work you've done for these decades, how easy will it be to convict Saddam Hussein of specific crimes, whether it be crimes against humanity or genocide? And what will be necessary to convince a court and, as you describe it, a very professional trial up to high international standards, to do that?

MR. MAKIYA: Well, as Hassan said earlier, we don't have a smoking gun. But there are things that come close to it. In the case of the Enfal operation, which is perhaps one of the most well-studied atrocities, we have a track record of 10 years of human rights organizations and individuals writing about it and studying whatever files cropped up. And we have the Kurds themselves having put in incredible work. We have lots of survivors and so on. There we have an order from Saddam Hussein authorizing Ali Hassan Majid to have extraordinary powers in the northern region. He of course used those extraordinary powers to proceed with the Enfal operations. But there would be some ambiguity, I suspect, from a legal point of view, after all still in that order.

What you might--of the personal indictable offenses, I suspect things that would be very easy to do are, for instance, when in full view of other cabinet ministers he pulled out a gun and shot the minister of health back in the, when was it, 1982 or something like that. That-- But you see, what I suppose is the gist of what I was trying to say, perhaps there will be witnesses to that. I can't tell you offhand whether there is or who would be prepared to speak and so on. That would be a very powerful personal event.

But what we're trying to say, at least I am and I think Hassan is trying--all of us are trying to say, is that I think it would be a pity to just indict him on the basis of incidents like that when we have such extraordinary paper trail. We need to develop--and maybe this is unique. Maybe this hasn't been done before. Maybe it's very difficult to do also, I mean, I'm not a lawyer. But we need very imaginative prosecutors, very imaginative people to draw up this charge of offenses, who are able to think through kind of the connecting the register of schoolchildren with the crime and are able to put that forward.

So that, from the country's health point of view, from the long-term point of view, the system as a whole is exposed through this trial. But to answer your question point-blank, thus far we don't have a smoking gun.

MR. MNEIMNEH: As I mentioned [microphone went off] --Ali Hassan Majid is such a device. We do not have a smoking gun with regard to Saddam. We have many smoking guns with regard to Ali Hassan Majid, for example. And this takes us back to Neil's suggestion that maybe Saddam's trial should not be the first. Maybe there is a process to which other regime officials end up being tried.

Just mentioning one such example, because in my mind [inaudible] it to the level of the individual is extremely important. Sometime in 1988, a young man by the name of Jamal Khamahan [sp] made--basically expressed his opinion politically about an amnesty that Saddam Hussein had given to the Kurdish Iraqis in northern Iraq by saying, well, Saddam was obligated to do it; it was, after all, Talbani's power that made him do it. Jamal was arrested, executed by orders of--we have the order by Ali Hassan Majid. His house was demolished and his whole family was taken into custody, was put in jail. Fifteen months later, basically, the people responsible for the jail were asking Ali Hassan Majid what should we do with the family of the executed, and he issued another order saying, well, the detention should have been only six months--15 months later.

In any case, this is one of many examples in the case of Ali Hassan Majid, who was at the forefront of the action. Ali Hassan Majid can be tried on specific cases and--using a representative and, if you like, a comprehensive approach. Saddam is a more difficult case.

MR. KRITZ: Let me add a point to this. In terms of this question of actually finding the smoking gun, one needs to keep in mind that international law, as will be applied in these cases, recognizes the notion of command responsibility. Ultimately--and this goes to what Hassan and Kanan have been talking about--building the case, building the process for showing the nature of the system, for showing the systematic nature of the atrocities committed--when you have a case, for example, against Majid, for example, who has acknowledged to people about the killing of large numbers in that incident, to the extent that one can demonstrate that the ultimate commander is aware--not necessarily that he ordered "you go and gas these people," but if you can demonstrate that the ultimate commander was aware of what was done by his subordinates and took no action either to prevent or to punish those acts, then that alone, in itself, under international humanitarian law becomes indictable.

MS. PLETKA: We're going to take one last very quick question and quick answer, because we have another conference coming up. Well, okay, if we don't have any more, that's--oh, coming out of the blue. This gentleman right here, but please quick.

QUESTION: I'm Will Englund from the Baltimore Sun. Since Saddam has often been compared to Stalin, I just wanted to ask a quick question for a perspective of the Russian experience. Russia of course has never had a Pandora's box trial of the type you're talking about. The political will doesn't exist. It doesn't exist because the communist system of control was so pervasive and so inextricably intertwined with Russian society that you had essentially half the population informing on, spying on, policing the other half. Nearly everyone was complicit in some sense. I wonder if you could just address that in the Iraqi context.

MR. MAKIYA: Well, the Iraqi society was equally, if not more, sort of woven into the cobwebs of complicity by this regime, consciously so. That was active policy in the regime. On the other hand, changing Iraq came by-- [microphone went off] --is opening up, that there are certainly a very large camp in Iraq that wants these crimes exposed in the way that we're talking about. That itself is going to change the dynamic, I think, from the Soviet experience post-the collapse of the Soviet Union.

MS. PLETKA: With that last comment, if I may ask as a favor from our audience, we have another panel that's coming into this room. AEI's visiting scholar John Yoo is hosting a panel on civil liberties in the war on terrorism, which is an appropriate follow-on. But as a result, if I may ask you take your conversations and your questions and answers of our panelists outside the room, I would be very grateful.

And just a hand of applause for everybody. Thank you so much for coming.

[End of recorded segment.]