Saddam hasn't committed any crimes under the new constitution, which doesn't exist yet.

Even if you scrap what is still the current constitution that Hussein himself put in, you would go back to the constitution of 1957, which also exempted the president from prosecution.

From a strictly legal perspective, Saddam is innocent. Unless you can find a crime he committed before he was President, and witnesses willing to testify.

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"I think -- tide turning -- see, as I remember --I was raised in the desert, but tides kind of -- it's easy to see a tide turn -- did I say those words?"
-- George W. Bush, asked if the tide is turning in Iraq