Why Mubarak should not be hanged

Yesterday, Egyptian prosecutors called for former president Hosni Mubarak to be hanged for the deaths of hundreds of protesters.  You would think, after three decades of misrule, there would be ample evidence of Mubarak’s guilt on a wide range of prosecutable crimes but the case against him as presented at trial has been shockingly feeble.  The relevant section from the New York Times report describes it this way:

After five months of intermittent sessions bogged down by legal squabbles and technical motions, prosecutors have failed to produce specific testimony or evidence that Mr. Mubarak, 83, directly ordered the use of force or the shooting of demonstrators. They contended on Tuesday that the police had obstructed their efforts to gather evidence, forcing the prosecution to rely on showing video of police violence that was previously shown on private television networks.

Mr. Mubarak and his interior minister, Habib el-Adly, both said in sworn depositions that the president had not given orders to use force, Mr. Suleiman acknowledged dismissively. “This is crazy people’s talk,” he said.

“He is the one with the interest in oppressing these protests and in killing the protesters who only went out to call for his ouster,” Mr. Suleiman added. Except for orders from above, the security officers themselves would have no other motive to kill the demonstrators, he argued.

So Mubarak should hang, say the prosecutors, because he is the one who stood to gain from the crimes.  Actually, I believe Mubarak should not hang, for reasons that go beyond the fact that unearthing evidence, documenting specific orders, and exposing direct responsibility are the standard legal measures of guilt.  Mubarak was a dictator, to be sure, but he did not exercise total power over his country the way, say, Muammar Gaddafi did Libya or Saddam Hussein did Iraq; in Egypt, Mubarak was merely the central figure in a robust regime that is collectively responsible for the nefarious actions of the state.  Fearsome though Mubarak was in his prime, the regime was — and remains — bigger than he is and what Egypt needs most now is not vengeance on one man but a wholesale dismantling of the regime.

Nothing like this has happened yet: since the revolution a year ago, Egypt has continued to suffer under the Mubarak regime, just now without Mubarak.  Most of the same actors remain in the same positions taking broadly similar actions to those five or ten years ago.  It is not only the prosecutors at the trial who have been unable to expose the inner workings of the regime to bring the guilty to light: thus far, there has been no official reckoning at all within most institutions of the state and it has been left to bloggers like Hossam el-Hamalawy to post photos of State Security officers in an effort to force reform.  In the absence of this housecleaning, the Mubarak-era regime retains enough (undeserved) credibility that the Supreme Council of the Armed Forces has presided over an essentially unchanged system for a year and only a small, brave minority has taken to the streets to protest this state of affairs.

Mubarak should be spared the death penalty in return for serving as a one-man truth and reconciliation committee, revealing — and, we can hope, thereby thoroughly discrediting — the countless odious deeds the regime got up to in the last thirty years.  Forestalling this exposure is, of course, the principal reason many of Mubarak’s erstwhile comrades in arms might hope the prosecutors get their wish and the old man hangs, the sooner the better.  If that happens, many important secrets will die with him.

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