Iraqi constitutionalism - American advisers to drafting committee

[Sanford Levinson]

Earl writes:  After reading [the op-ed] from people who purport to be experts on the >situation, I don't know whether to laugh or cry.

I have spent several hours thinking of Earl's post and what the proper response is to the op-ed by Professor Paul Williams and William Spencer.  Does one laugh, cry, or get angry?  I'm sure that laughter is not appropriate, because too many people have died (and are going to die in the future) because of the current situation.  It seems inappropriate to get angry at the two authors, since they are undoubtedly well-motivated.  I confess, though, that I was left wondering when a Google search of the Public International Law & Policy Group, of which Mr. Spencer is the Washington Director, indictated that the "PILPG is providing legal assistance to one of the primary parties participating in the negotiations to draft a new Iraqi Constitution."  One would, of course, like to know which one of the primary parties and whether this op-ed is serving the interests of their client (unless the term "client" is inappropriate given that the PILPG appears to be a non-profit NGO; still, as Ken Anderson should have taught all of us, purity of motive should not save NGO's from scrutiny).  

In any event, it seems to me, upon reflection, that the op-ed is a paradigm example of the kind of liberalism against which Carl Schmitt was writing (for better and, distinctly, for worse):  That is, at the end of the day (or the op-ed), it seems to be all about process and "dialogue" (my word, not theirs) and does not take truly seriously the fact that the most serious politics, alas, is constituted by the friend-enemy distinction that makes dialogue and compromise quite beside the point.  For the authors, bargaining positions seem to be merely strategic, to be given up at the last moment because of a shared belief in a common project.  I'm not sure that this model explains why worldwide air traffic was disrupted last weekend because caterers went out at Heathrow, or indeed, that they could explain any other strike, let alone a whole host of endless political conflicts--consider, e.g., not only the Israeli Jew-Palestinian conflict, but also, increasingly, the secular Israeli Jew-religious Zionist Israeli Jew conflict.  (Nor, as I have suggested earlier, do I think they could explain current behavior in the United States Congress.)  

Frankly, I find myself almost glad that John Kerry lost the election, for if a Kerry Administration were offering such advice (and, candidly, I doubt that it would have any more idea of an exit strategy than the Bush Administration does), I would expect conservatives to excoriate such naïve liberalism.  

None of this is said with any happiness.  The fiasco in Iraq is harming each and every American (not to mention the Iraqis themselves).  I have no idea what the solution is, and it will be wonderful if more "reasoning together," in Lyndon Johnson's phrase, will produce some amity among the Sunnis, Shiites, and Kurds (not to mention, of course, other groups, such as the Turkomen, who are being left out of this conversation).  I simply see no reason to expect that, and this op-ed piece does nothing to still my concerns.

sandy 

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Earl Maltz
Sent: Monday, August 15, 2005 7:32 AM
To: conlawprof at lists.ucla.edu
Subject: Fwd: RE: Iraqi constitutionalism - American advisers to drafting committee


>Date: Mon, 15 Aug 2005 08:31:45 -0400
>To: "Carrese Paul O Prof USAFA/DFPS" <Paul.Carrese at usafa.af.mil>
>From: Earl Maltz <emaltz at camden.rutgers.edu>
>Subject: RE: Iraqi constitutionalism - American advisers to drafting 
>committee
>
>After reading this from people who purport to be experts on the 
>situation, I don't know whether to laugh or cry.
>
>Maybe we should go back to plan A, just put Achmed Chalabi in charge 
>and then adopt the Left Bank theory--Just walk away, Renee.
>
>At 06:20 AM 8/15/2005 -0600, Paul Carrese wrote:
>
>
>>Iraq's political compact -- BOSTON GLOBE, August 13, 2005 By Paul R. 
>>Williams and William Spencer  |
>>
>>MOST OF the news and commentary addressing the leaked drafts of the 
>>Iraqi constitution focus criticism on the role of religion, Iraq's 
>>designation as an Arab nation, the protection of women's rights, and 
>>Kurdish autonomy. While these are key issues that must be resolved, 
>>the constitution under development is first and foremost a political 
>>compact.
>>
>>Although the constitution will ultimately guide the political 
>>development of Iraq, it is not being approached in an overly 
>>legalistic manner. Rather, the founding fathers of Iraq are attempting 
>>to use the constitutional process to develop a mutual understanding of 
>>the future of Iraq. We spent the month of July in Baghadad as advisors 
>>to the Iraqi Constitutional Drafting Committee.
>>
>>The purpose of the political compact is to weld all the factions to 
>>the idea of a united Iraq committed to the principles of pluralism and 
>>democracy. If successful, this compact hopefully will split and weaken 
>>the insurgency, allow Iraq to fend off interference from neighboring 
>>states, provide an opportunity to resurrect and restructure the oil 
>>industry, and provide a blueprint for the operation of governing 
>>structures.
>>
>>This compact is being negotiated in an environment where none of the 
>>major political actors have previous national political experience; 
>>for many it is their first foray into politics. There is scant 
>>historical precedent in Iraq for constitutional rule, and an absence 
>>of regional models.
>>
>>Despite the obstacles, the Iraqis will likely succeed due the nature 
>>of the committee chosen to represent their interest and craft the 
>>political compact. The committee is headed by Dr. Hamam Hamoudi and 
>>includes secular and religious Shi'a and Sunni, the two major Kurdish 
>>groups, women -- representing both the conservative Islamic tradition 
>>and the more secular liberal tradition, Turkmen, and other minority groups.
>>
>>Fortunately, the committee is not composed solely of lawyers, but 
>>rather engineers, doctors, physicists, religious scholars, historians, 
>>journalists, and businessmen. Many were exiled in Western Europe and 
>>North America, are familiar with democratic models, but retain their 
>>understanding of the factors that drive politics and law in the land 
>>of Hammurabi.
>>
>>A number of the groups have articulated extreme positions. This is to 
>>be expected in a constitutional negotiation, in order to test their 
>>bargaining positions and clarify opposing views. The agreement of the 
>>drafting committee to operate on the principle of consensus will 
>>sufficiently moderate these positions.
>>
>>What is important, and impressive, is that the committee has not 
>>reached for political expedient, yet practically devastating 
>>mechanisms such as rotating presidencies, set-aside seats in 
>>parliament and the judiciary for specific ethnic groups, sectarian 
>>distribution of executive offices, or direct international participation in the governance of the state.
>>
>>August 15, the day the Iraqi National Assembly will adopt the 
>>constitution, will not be the finish line. It will not be the day the 
>>United States and its coalition partners can begin political and 
>>military disengagement. Rather, it will be the day the race for 
>>political sustainability begins.
>>
>>The constitution adopted on that day will resemble more of a General 
>>Framework Agreement than a traditional legalistic constitution. The 
>>Constitution will set forth a number of principles and themes that 
>>will guide the next Iraq Assembly, to be elected on Dec. 15, as it 
>>implements laws and regulations which find a proper place for Islam in 
>>a modern democratic state, protect human rights, especially those of 
>>women, and secure the autonomy of Kurdistan.
>>
>>To insure the adoption of the constitution, the United States and its 
>>partners must provide the resources necessary for a dialogue on the 
>>constitution prior to the Oct. 15 referendum. It will also be 
>>necessary to continue extensive support for the creation of political 
>>party structures, as they are key to holding together eclectic 
>>political interests in Iraq.
>>
>>Most important, the United States and the international community will 
>>need to launch a program of assistance inimplementing the constitution.
>>The newly elected Iraqi Assembly will have the political skills 
>>necessary to identify and craft solutions, but they do not possess the 
>>practical experience with creating courts, human rights commissions, 
>>banks, and other institutions.
>>
>>During the drafting process the nascent political factions have 
>>developed an effective means for consensus building, and for 
>>constructing bridges to resolve points of impasse. To turn the 
>>political compact into a workable constitution will require the 
>>continued development of these skills and the assistance of the United 
>>States and the international community.
>>
>>Paul R. Williams is the Rebecca Grazier Professor of Law & 
>>International Relations at American University in Washington. William 
>>Spencer is Washington director of the Public International Law & Policy Group.
>>_______________________________________________
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