Saddam Hussein to Face Justice

This is a partial transcript of The Big Story With John Gibson, Dec. 15, 2003, that has been edited for clarity.

(BEGIN VIDEO CLIP)

PRESIDENT BUSH: I've got my own personal views of how he ought to be treated. But that's — I'm not an Iraqi citizen. It's going to be up to the Iraqis to make those decisions.

(END VIDEO CLIP)

TONY SNOW, GUEST HOST: Saddam Hussein (search), the butcher of Baghdad made plenty of enemies over the years. But now is the time for justice, not revenge. FOX News senior judicial analyst Judge Andrew Napolitano looks at the legal options being considered for the trial of Saddam Hussein — Judge.

JUDGE ANDREW NAPOLITANO, FNC SENIOR JUDICIAL ANALYST: Tony, there are a number of options available to the United States government, which will make the decision initially, because we have custody of him. We could have an international tribunal with judges from a variety of countries. We could have a tribunal especially created for him, established by the United Nations (search). Or we could put him in the hands of an Iraqi court, a court that was just created last week and has yet to try a single case.

SNOW: What about a military tribunal by the United States?

NAPOLITANO: He could be tried before a military tribunal (search) before the United States on the following theory — that he led the resistance to a lawfully occupying power. That he has directed the attack —- all of which are illegal under international law — and that people died the as a result of those attacks since the war ended in May.

SNOW: As a practical, political matter, that's probably counterproductive since the United States said it is time to hand sovereignty over to the Iraqis. Let's talk about some of the other options you mentioned. International court. You basically pick judicial all-stars from around the world as they did in Nuremberg (search) after World War II.

NAPOLITANO: You do. And the decision-making factor there will be does the United States want the death penalty available for Saddam Hussein? Not necessarily do they want him executed —do they want it available — because if it is an international tribunal, it will be peopled with judges from countries where the death penalty is prohibited... So if the United States wants the death penalty available, it's unlikely it would be an international tribunal.

SNOW: Now we have an interesting situation. Let's give it away. You and I were talking earlier. You talked about the death penalty and its status in Iraq in recent years. Why don't you lay that out for people.

NAPOLITANO: Sure. The death penalty was available in Iraq before Saddam Hussein came to power. Actually before he came to power, they had a surprisingly modern system in the judiciary, modeled on the English system and mimicking some of our features. During his time in power, when the crimes for which he will be charged were actually committed, the death penalty existed. At the present time, there is no death penalty in Iraq. The court that was commissioned last week does not have the power to impose the death penalty unless and until the new permanent government of Iraq should come into power in June, tells it that it can.

SNOW: All right, Judge, by the way, it's ironic, the man who modeled himself after Hammurabi does not want Hammurabi justice.

NAPOLITANO: You're right.

SNOW: Judge, thank you.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: He would be judged by Iraqi judges and he will appoint his own Iraqi lawyer to defend him.

(END VIDEO CLIP)

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