But the president’s private desires are not likely to figure much in determining Saddam’s ultimate fate. Leaders of the U.S.-appointed Iraqi interim government have made it clear that they want the ousted dictator to be tried by an Iraqi-run tribunal set up last week for the express purpose of trying those charged with war crimes. And Bush himself has said that it will be up to Iraqis to orchestrate his trial and punishment without American interference. But first, the country’s legal infrastructure needs a little work.

Retired federal judge Stephen Orlofsky was part of a 13-member team sent in May by the U.S. State and Justice departments to evaluate the Iraqi court system and assist the coalition provisional authority in reconstructing it. During a tour of five Iraqi cities, Orlofsky–along with other judges, defense attorneys, prosecutors and a court administrator–met with a large number of lawyers and around 35 judges, who, like most Iraqi judges, had been appointed after Saddam took power in 1979. The team found that, while some courts were still operational, corruption was endemic. And in interviews with legal professionals and the man on the street, Orlofsky learned that Iraqis overwhelmingly want Saddam tried in Iraq, by Iraqis.

NEWSWEEK’s Brian Braiker spoke recently with Orlofsky about his six-week examination of Iraq’s crumbling justice system–and how best to proceed with the trial of its captured tyrant. Excerpts:

NEWSWEEK: What is the state of the Iraqi court system?

Stephen Orlofsky: The biggest problem at that time was that the courthouses had been looted of everything from doorknobs to light bulbs. They were literally shells. There was no furniture; there were no books. In some cases court records had been deliberately destroyed. In many instances they had no power or intermittent power. It was 130 degrees, and frankly it was very difficult to operate any kind of facility, not to mention a court. It was hotter than any place that I’d ever been before. There were other problems with security, with transportation; gasoline was short. Basically we were starting from square one.

And the legal professionals themselves?

The judges I met, most of them had been appointed by Saddam–with the exception of judges who had recently been appointed on an interim basis by the local military commander. If you asked the judges about corruption in the judicial system before the war, they would say there wasn’t any. If you talked to the lawyers they would say it was rife with corruption. Money changed hands regularly; judges were routinely influenced by the regime to affect the outcome of cases. Since most of the judges were appointed by Saddam, I was inclined to believe the attorneys. Of the 35 or 40 judges that I interviewed, one judge actually admitted to me that he was a high-level Baath Party member. I remember thinking at the time, “he’s the only who’s telling the truth.”

Where do you think Saddam should be tried?

On Dec. 10 the Coalition and the Iraqi Governing Council adopted a special Iraqi tribunal statute, which sets forth the procedures whereby war crimes, crimes against humanity, are to be tried. It provides for the appointment of judges [and] prosecutors. It sets forth the rules, a procedure which, in many respects, mirrors our Bill of Rights. There’s a right to counsel, there’s a right to remain silent. The judge cannot draw an adverse influence if a defendant chooses to exercise his or her right to remain silent. There’s a right to a speedy trial. There’s a right to cross-examination. There’s a right to have adequate time to [create a] prepared defense. The court can seek assistance from the United Nations. It also points out that the decisions of international courts involving war crimes shall be considered precedent, which is binding on this court. So it provides some mechanisms to give the judges a source of law.

Can Saddam get a fair trial in Iraq?

Yes, I think he can if these procedures are followed and implemented. It’s important that wherever he is tried that he get a fair trial. One of the things I discovered in Iraq in talking to judges, lawyers and just men and women on the streets in Baghdad, is that when asked whether Saddam, if captured, should be tried before an Iraqi court or an international tribunal, universally, without exception, they said that he should be tried in Iraq, before Iraqi judges and Iraqi lawyers. They categorically rejected the notion that he be tried before an international tribunal or even a mixed tribunal consisting of Iraqi judges and judges from other countries.

Why is that?

To a person, they said the crimes Saddam committed were committed against the Iraqi people and he should be made to answer in Iraq for his crimes. They all said this independently.

If the legal structure in Iraq is reformed with the guidance of U.S. experts, won’t he be able to say that he’s being tried by American-trained lawyers and the whole thing is rigged anyway?

The thing is: wherever Saddam is tried, whether he’s tried in Iraq, whether he’s tried before an international tribunal or a mixed tribunal, he’s going to make the same arguments that have always been made at these tribunals from Nuremberg to [former Yugoslavian president Slobodan] Milosevic to [Nazi leader Adolf] Eichmann in Israel. The defense always says that they can never get a fair trial–that the result is pre-ordained and that the court and witness and everybody else is biased against them. But I think the Iraqi people have a paramount interest in conducting the trial. The people who have suffered the most at his hands were the Iraqi people.

Do you feel The Hague tribunal is the best place to try Milosevic?

Well, it’s like apples and oranges. Milosevic presented all kinds of different issues. Milosevic was essentially an enemy of NATO, so it made sense for Milosevic to be tried before an international court at The Hague, which arguably had jurisdiction over the crimes that he committed. Virtually all of the crimes that Saddam committed were committed in Iraq or Kuwait or Iran, but principally in Iraq itself. Most of the arguments I am hearing for not letting the Iraqis do it is that they don’t have the background, the experience, the training.

Or that there are a lot of Baathist holdovers?

First of all, the statute provides that no one who was a member of the Baath Party or was in any way involved in the Baath Party can be appointed as a judge of this tribunal or a prosecutor. And there are many people in Iraq, many talented lawyers who are not Baathists. In my view it is presumptuous and certainly arrogant of us and others in the West to think that the Iraqis are not sophisticated enough or intelligent enough to try these crimes. You know, before Nuremberg, we had never prosecuted war crimes. They’ll have all sorts of advisory assistance in the form of judicial assistance, assistance for the prosecutors, forensic experts. They’ll be able to draw on that, and I am sure that they will.

How long do you think it would take before judicial reforms have been implanted and a trial could begin?

Here’s the difficulty: I think the reforms are relatively easy to implement. The problem is that there’s no statute of limitations for war crimes. So we could be talking about crimes that go back as much as 25 or 30 years. I think the difficulty is going to be deciding which crimes to prosecute. Obviously, it’s easier to prosecute crimes which occurred more recently than crimes that occurred years ago. Witnesses die, disappear and memories fade. So the big test in my view for the prosecutors is going to decide which crimes to prosecute. Some of these crimes are going to require an intense investment of forensic resources. You’re going to be talking about DNA comparisons, exhuming bodies, examining bones.

What’s the real likelihood that he would be tried in Iraq and not a tribunal?

If I knew the answer to that, I could go to the casino and win a lot of money. Look, the Iraqi people certainly want to do it. They’re ready willing and able to do it. The president had a press conference [Monday] and made it pretty clear what his view was: that we are going to assist the Iraqis in prosecuting him.

Could he get a fair trial anywhere other than Iraq?

Probably. There are many judicial forums and criminal courts in various countries that would provide him or any other defendant a fair trial. He’s obviously a high-profile defendant. The crimes he’s going to be accused of are heinous. By the way, under the statute he is entitled to the presumption of innocence.

Yes, these are all alleged crimes. But haven’t at least some of them been proven?

I don’t think they’ve been presented to any court anywhere. There’ve been all sorts of accusations of using weapons of mass destruction, gassing the Kurds, the crimes he committed in Kuwait and allegedly the Iranians claim he committed crimes there. I visited a mass gravesite in Hilla, which is in south-central Iraq. It is no different than one of Hitler’s death camps. [Saddam] would truck these poor people out to the site, put them in predug graves and then either shoot them or plow the ground over them. Their crime was that they were Shia Muslims. It was no different than Hitler and the Jews. It was just horrible. It was a searing emotional experience for me. There were family members, people literally on their hands and knees going through the grave site looking for the remains of their loved ones.

Was there a palpable sense of relief after Saddam was ousted in the fall of Baghdad?

Yes, very much so. Many Iraqis told me that they were relieved that he was finally gone. And their worst fear was that he would come back. Everyone I talked to said that and that’s why it was very important to capture him.

Did you encounter any resentment toward the Americans.

No. But of course I didn’t talk to any of the people who were shooting at us. Generally, the Iraqis were very friendly.

You were shot at?

Yes. There was frequent sniping. The whole country is an arms cache. Everybody has an AK-47. If you and I were Iraqis, we would have AK-47s in our houses. It’s just part of the culture. It’s gotten a lot worse now. There weren’t the car bombings and the attacks on the convoys that you’re reading about now. But it was not a place you would walk around at night without significant force protection.