The headline of the October 20, 2005 New York Times says a lot: “Defiant Hussein, Lashing out at U.S., Goes on Trial.” Everyone involved in this scene, from the defiant defendants to the many victims under Saddam’s brutal dictatorship, knows what the verdict will be. We are trying Saddam Hussein in a televised court of legal process not to determine if he is guilty but to remind the world of his crimes against humanity. There is no innocence to presume. Nor is there a Johnny Cochran waiting in the wings with too-tight, blood-stained gloves.

All indications are that this trial will be an ordeal. The image of a gaunt, grey-bearded man in a Western sport coat staring back at a crunched-over judge is not that of the modern-day Nebuchadnezzar Saddam dreamed. But neither does he look like a larger-than-life monster capable of mass murders on a Stalinesque scale. The Saddam we have barely seen, apart from the Baghdad bully washing his pants, has much to gain from the vengeful humiliation this trial is all about.

The ethical irony of this trial is that by failing to do to him what Saddam did to his political enemies, there is a substantial risk that he will finally become a real hero. His foolhardy and inconclusive war with post-Shah Iran, equally stupid invasion of Kuwait and hollow rant against the overwhelming armed forces of the Coalition of the All-to-Willing did not gain him immortality in the politicized imagination of Arabs and Muslims. But a Saddam who does not back down and cry, a humbled man who steadfastly maintains his immunity as an unjustly deposed President, may still serve as a hero.

Saddam is no biblically proportioned David in this court, since a superpowered Goliath has taken away his sling. But even stripped to his underwear, his stubborn verbal defiance is a weapon more powerful than an underground trove of scud missiles. A bullet in the head may not have been kinder, but it would have been justice without need for a circus. The power that Saddam holds, whether he knows it or not, is the depth of anger and frustration by ordinary Muslims, Arabs, Persians and Afghans with recent American interference in the Middle East. Because Saddam cannot possibly win in a court of law, he has a good chance of achieving the fame that has so far eluded him by not backing down. Like a bloodied and wobbly-kneed fighter in the final round, all he needs to do is go down fighting.

The main problem with the trial of Saddam is that it is very much, actually too much, a Western drama. Judge Judy combines with Punch and Judy to simulate justice. Hammurabi would serve as a better model than the Hague court of international justice. At least Hammurabi was Iraqi. The great Babylonian lawgiver was also a consummate diplomat who probably would have sympathized with Saddam’s treatment of political enemies. Under Hammurabi’s famous law code Saddam would have gotten off because he was an elite ruler rather than a commoner subject to eye-for-an-eye vengeance. Hammurabi would have been Solomonic enough to send Saddam to the city of Hit along the Euphrates for the mother of all legal precedents, trial by river ordeal.

The deal with Hit justice was simple and final. Ancient Babylonians who committed a serious crime, say sorcery, were taken to the river and thrown in. The river was considered to be a divine judge, thus taking the pressure off any humans who might be retaliated against for ruling against the defendant. The idea was that the accused had to swim under water for a certain distance. If you could hold your breath and reach the mark you were innocent. If you came up for air, or better yet drowned, you were guilty. It was such a suitable solution to dealing with socially despised culprits that European priests and some American Puritans
later used the basic idea to deal with the witches of their day.

So here is my suggestion. Stop the trial immediately and save the repair costs for the non-functioning DVD system in the Green Zone courtroom. Have a team of embeddable journalists and volunteers from both the Carter Center and Brookings Institute take a well-protected (by new Iraqi recruits, for example) bus to Hit. Move Saddam in one of those American-made armored vehicles that does not protect our troops from roadside bombs and strip him down to his underwear (there is certainly media precedent for that). Throw him in the river and tell him he needs to swim the whole nine yards without coming up for air. If he comes up for air, he is guilty. If he drowns, God is merciful and has made a divine judgment. If he by some miracle reaches the goal, at least Iraq will finally have a champion for the next Olympics.

No one can blame the river. After all, all three monotheisms teach that the Euphrates is one of the rivers that flowed from the Garden of Eden. Adam drank from it; Abraham probably peeed in it. Terrorist Sunni insurgent Ba’athi jihadist Islamists can throw all the suicide bombs they want in the river. Bring ‘em on. Saddam will have met a just fate. It would have been justice within Iraqi tradition. No guns will have been shot, no nooses tightened, no blades bloodied. And memories of Saddam as a defiant voice against overwhelming odds will sink into a muddy oblivion as they should.

Daniel Martin Varisco