THE FOLLOWING ARTICLE HAS APPEARED IN THE RECORD ON

Powell's war plea, not admissible
in a court of law



Had Secretary of State Colin Powell pleaded his case in a criminal courtroom rather than before the UN Security Council he would have suffered a resounding defeat. His scathing indictment against Saddam Hussein for having violated U.N sanctions would have provoked a string of valid objections based on our rules of evidence. These rules are designed to increase the odds of unraveling the truth during the course of a trial .To do so, they aim to ensure that both parties in a courtroom receive a fair hearing and that evidence deemed irrelevant, untrustworthy, or unfairly prejudicial is excluded.

This is not to say that Mr.Powell's prosecutor- like behavior was not a political success. Moreover, very few experienced trial attorneys could have been more convincing. He was articulate, persuasive, spoke with passion and made all the right pauses. He also knew exactly when to refer to the wiretap evidence, satellite pictures and drawings . Nevertheless, all of all his courtroom skill would not have compensated for the lack of legally admissible evidence .

Had America's top diplomat presented the same plea in a courtroom, any experienced observer would have concluded that he was giving evidence viva voce (through his voice ) which in itself would have justified the trial judge to stop him in his tracks. In short, no lawyer is allowed to give evidence in his client's case and still remain the attorney on record. The fact that Mr. Powell was able to provide names, dates and locations in his efforts to prove that Saddam's Iraq has been working and giving support to al Qaeda, would not have helped to make his statements admissible in a court of law.The same can be said of his assertion that Saddam and Osama bin Laden forged links going back to the mid-1990s, and that today, Iraq harbors an al Qaeda network headed by a bin Laden colleague, Abu Musab a-Zarqawi. At most, such allegations would have been permitted in an opening statement before a jury with the understanding that he subsequently prove each and every one . When Powell presented his case before the Security Council he was relying in large part on information that originated from CIA intelligence officers. Quite naturally, he hoped to convince the members of the Security Council that his information was trustworthy and therefore true.

Such evidence is referred to as hearsay evidence and is almost always inadmissible before a court of law. A further example of hearsay evidence in Powell's speech was when he declared that, according to a senior al Qaeda operative, Iraq had offered chemical or biological training to al Qaeda associates. In the absence of the appropriate witnesses such hearsay evidence is considered unreliable and untrustworthy.

Another danger with hearsay evidence is that it may be believed by third parties only because of the reputation of the person who reports it, not notwithstanding the possibility that the absent witness may be a liar. By admitting hearsay evidence the opposite party is thereby prevented from testing the credibility of the person who supposedly witnessed the disputed facts. However, just calling the material witnesses would not have been sufficient for Colin Powell had he been before a court of law. A judge or jury would have had to be convinced beyond a reasonable doubt that his allegations were true. This assumes, of course, that each and every witness would have both been examined and cross-examined.

As for the audiotape, which Powell claimed, was of two Iraqi officials discussing a cover-up in light of an upcoming inspection by U.N. officials, it too would have been declared inadmissible unless he had abided by the rules of evidence. Aside from having to establish that all of the procedural requirements had been respected, Powell would have had to prove where and when the alleged conversation took place, the identity of the two parties and finally that the recording had not been doctored. This type of evidence is usually provided by law enforcement technicians/analysts whose specialty is to intercept and record private conversation and who are equally capable of identifying the voices.

For much the same reasons, Powell's satellite pictures purporting to prove concealed chemical weapons would have been rejected by any court of law, without additional evidence. According to Powell they revealed a series of cargo vehicles as well as a decontamination vehicle moving around at the Al Musayyib chemical complex in 2002 . The fact that the information was previously classified intelligence material would have had no impact in a court of law. Much like audiotapes it is just too easy to fake pictures. Powell would have been obliged to call as witnesses the highly qualified experts who were controlling the satellite photography operations. It is unlikely that anyone else could have established how and when the pictures were taken and finally what they indicated.

As for the drawing of the mobile chemical weapon lab, Mr. Powell would have been required by law to produce as a witness, the person who actually prepared the document. It is indeed ironic that because of our many stringent rules of evidence it can be more difficult to convict a person of murder than for a government to launch a war. One important reason is that government leaders are not legally required to convince their constituents, much less an independent tribunal, beyond a reasonable doubt, that a war is in their country's long term national interest. No referendum is required and no public poll is binding.

Then again, most political scientists will argue that the art of governing also requires the fortitude to take unpopular decisions.