This week, the Coalition Provisional Authority named Salem Chalabi, the nephew of Pentagon-ally Ahmed Chalabi, as General Director of the tribunal that will try Saddam Hussein. This is not unlike that awkward moment when U.S. soldiers put up the American flag over the toppled statue of Saddam Hussein – it's a move that botches a golden opportunity to gain goodwill for America. But this time, the costly mistake was made not by enthusiastic soldiers in the heat of battle, but by those who should know better.
The prosecution of Saddam Hussein and other former regime leaders should provide a great stimulus to the Iraqi public's understanding of and respect for the rule of law. The image of former tyrannical leaders standing before a judge provides a potent message about the capacity of law to trump arbitrary power. Iraq had a thriving legal system before Hussein's regime, and this process should catalyze its return while also providing training to judges, prosecutors and defense lawyers and building the infrastructure for a new judiciary.
The trials of Saddam Hussein and his cohorts should, therefore, be an easy home run for the United States at a time when a momentum shift is certainly needed. The occupation is losing credibility abroad and at home, and the tribunal's work could refocus attention back on the one point on which almost all Americans and Iraqis agree – Saddam was a horrible man and we are all glad he is gone. As the President and his supporters continue to highlight Saddam's crimes, the presentation of hard evidence in the coming months will only underscore the upsides of the invasion.
But in this case, the United States has snatched defeat from the jaws of victory. The first strike came when the United States refused outright to even entertain offers from Europe and other members of the international community to manage and fund the trials. The Coalition Provisional Authority passed on a perfect pitch by opting instead to hand the tribunal to Iraqi authorities viewed by most as American proxies.
Yesterday, the Coalition swung and missed again when it named nephew Chalabi to the top post. His presence significantly increases the chance that the story during the trial will not be about the evidence presented, but rather about the shadow of U.S. influence over the proceedings. The proceedings could set a new standard of accountability, but Iraqis may decide instead that it represents yet another extension of American control. It could reinforce our perceived unwillingness to cede anything but symbolic authority because we presume to know what is best for Iraqis.
The arbitrary use of power is anathema to the rule of law, but its specter is raised by the widespread knowledge of the Chalabis ties to the Pentagon. If one begins from the assumption that America is "doing right," then allegations of bias in the process would be misplaced. But a successful tribunal must be grounded in reality, not failed assumptions – and the reality is that many Iraqis still question American motives.
Iraqis do not assume that America has their interests at heart, and are thus likely to view with skepticism an American "agent" managing the judges. They will no doubt wonder if Chalabi is there to ensure that no cases expand to cover America's role in supporting Saddam during the 1980s, atrocities during the 1991 Gulf War, or the oil-for-food program. Despite whatever success the tribunal will muster, the media in Iraq now has a legitimate reason to focus almost entirely on the issue of undue U.S. influence on the process.
Few in Iraq or the Arab world want to defend Saddam, but that does not mean they will avoid focusing on the recurring problem of "symbolic sovereignty." But while it is unlikely that anyone will defend the behavior of Saddam Hussein, they will continue to insist on a process that is fair and perceived to be fair. America has paid a high price for assuming that Iraqis' gratitude for the end goal of punishing Saddam will trump their reaction to the means of arbitrary power.
The Coalition has already missed two key chances to make this tribunal a turning point. First they raised concerns about judicial interference by refusing to internationalize the process. Now they have validated those concerns by appointing Salem Chalabi. This tribunal cannot afford a third strike to its perceived independence or we risk turning another opportunity for progress and praise into another example of American arrogance.
Tom Perriello is a fellow at Res Publica and a former adviser to the Office of the Prosecutor of the Special Court for Sierra Leone.