Imagine a well-heeled and worldly Western couple on holiday in the Middle East, bargaining over some especially desirable artifact in the local souk, or marketplace.
Imagine further that our couple is uncommonly sophisticated and successful–these two are no ordinary low-budget, package-deal tourists. The husband, in fact, speaks the local language (Arabic, in this case), possesses formidable academic credentials in Middle Eastern studies, and has considerable experience dealing with fellow professionals and technocrats in the region. Having negotiated with Western-educated Arab counterparts (central bankers and other senior government officials), our man is supremely confident that he can get the better of a simple bazaar merchant.
Imagine also that our couple is so keen to get their hands on this particular item (a rare and striking rug, let’s say) that the entire trip’s success hinges on its acquisition.
Now imagine that our bazaar merchant enjoys certain advantages of which his prospective buyers are wholly unaware. He’s a self-educated man, but he happens to understand English rather better than he lets on and is therefore privy to our couple’s whispered asides–and their negotiating strategy. Even better, the couple’s local tour guide (his cousin Ahmed, as it happens) has told our merchant exactly what the couple wants and is willing to pay. In fact, Ahmed has helpfully steered our two sophisticates directly to his cousin’s stall (without, of course, ever hinting at any family ties). Thanks to cousin Ahmed, our merchant also knows that his buyers must depart for the airport later that same afternoon–with or without the purchase on which so much rests. And he has arranged for his fellow merchants–in exchange for the usual consideration–to withhold from sale any remotely similar items.
Given these circumstances, there’s only one possible outcome, hastened by the unmistakable body language of motivated buyers up against a firm deadline. Some haggling takes place; an artificially inflated price is reduced in face-saving increments. A deal is struck; money changes hands. The couple agrees that their one-of-a-kind purchase is very lovely indeed; but the wife–who handles the finances–begins to have second thoughts. She wonders whether in fact they’ve paid well over the odds; and she’s certain that busting their agreed travel budget will require hitherto unforeseen cutbacks in their comfortable lifestyle. And she wonders if they’d have done better to rely on hardheaded common sense than her husband’s supposed expertise.
This cautionary tale illuminates the principal dynamics behind the Agreement on Political Process reached in Baghdad this weekend between the U.S.-led Coalition Provisional Authority (CPA) and the U.S.-appointed Iraqi Governing Council (IGC). Art admittedly imitates life imperfectly, but this little tale helps make sense of this weekend’s stunning policy U-turn, if one makes the appropriate substitutions: the Bush administration for the wife, the State Department-dominated CPA for the husband, the IGC for the bazaar merchant, and Ahmed and his helpers for the rest of Iraq’s political and religious establishment.
What happened this weekend is that Iraq’s political leadership took full advantage of a looming deadline–and a recent spike in attacks against U.S. forces–to compel a reversal of settled U.S. policy on political development in Iraq. The U.S. had previously ruled out any provisional government and insisted that any substantial devolution of authority take place only after the process of debating, drafting and ratifying a permanent constitution. That is an entirely logical sequence of events, followed during the occupations of Germany and Japan, and one that allows the occupation authorities to maintain overall control while normal political life gradually takes root after decades of dictatorship.
This policy became wholly untenable as the result of a prolonged impasse between the CPA and the IGC. Immediately at issue was how to select delegates for a constitutional convention. Recall that Grand Ayatollah Ali al-Sistani, Iraq’s senior Shiite cleric, had issued a fatwa–or religious edict–in June mandating nationwide elections as the sole legitimate means for choosing delegates. This ruling was seen as a command, not a suggestion, by IGC members representing Iraq’s two-thirds Shiite majority. Non-Shiite IGC members (mainly Kurds and Sunnis) fell into line after calculating that the constitutional convention itself offered a better opportunity to protect their interests.
What brought this impasse to a head was the December 15 U.N. Security Council deadline for the IGC to report concrete progress toward setting “a timetable and a program for the drafting of a new constitution for Iraq and for the holding of democratic elections.” As noted on NRO last week,
It is politically unthinkable that the Bush administration will allow its handpicked Iraqi political leaders to appear empty-handed before the Security Council next month, just one month after President Bush made Iraq’s democratic transformation the centerpiece of his bold “forward strategy of freedom in the Middle East”–and just one month before the Jan. 27 New Hampshire primary.
These concerns help explain why CPA chief L. Paul Bremer was abruptly summoned to Washington last week for crisis talks at the White House. And the same concerns help explain the huge concessions that the U.S. subsequently made in order to reach agreement with the IGC under the pressure of the looming December 15 deadline.
The November 15 “Agreement on Political Process” outlines a two-step sequence for transferring power to Iraqis. First, both the CPA and IGC must agree by February 28, 2004, on a “Fundamental Law” that will serve as a transitional constitution when a provisional Iraqi government assumes full sovereignty by June 30, 2004. This provisional government will in turn be formed by members of a “Transitional National Assembly” selected by caucuses in Iraq’s 18 provinces (as recommended here) by May 31, 2004. Second, direct elections for delegates to a constitutional convention will be held by March 15, 2005, with a final draft constitution subject to ratification at the polls before elections for a new government are held by December 31, 2005.
This plan is designed to break the current impasse and to provide some badly needed political breathing space both in Iraq and in the U.S. It satisfies the key demand of Iraq’s Shiite clerical leaderships–elections for delegates to the constitutional convention–while acknowledging that nationwide elections are impossible for the moment in the absence of an accurate and agreed-upon census in the midst of a mounting insurgency. And it prevents a power vacuum from developing by setting up a provisional Iraqi government that will exercise power until a permanent government is elected under a new constitution.
Where this plan falls short is in the sketchy enumeration of basic rights under the Fundamental Law, and in the surrender of all formal U.S. leverage over the shape and substance of the new constitution.
First, the agreement provides that the Fundamental Law is subject to CPA approval and must contain these four substantive elements: a “bill of rights”; a “federal arrangement for Iraq”; judicial independence and judicial review; and “civilian political control over Iraqi armed and security forces.” The relevant provision regarding rights provides in full as follows:
Bill of rights, to include freedom of speech, legislature [sic], religion; statement of equal rights of all Iraqis, regardless of gender, sect, and ethnicity; and guarantees of due process.
This shorthand reference to basic human rights would have been immeasurably strengthened by the simple addition of just four words: “according to international standards.” This one phrase would have added the missing specificity and substance by referring to the international legal instruments collectively known as the International Bill of Rights. These rights are almost universally acknowledged in principle, even if they are not always observed in practice. And because they are supported by international consensus, they are far more difficult to oppose than a set of rights made in America.
Incidentally, the puzzling reference to “freedom of … legislature” is almost certainly a slip of the pen made by a harried staffer rushing to commit the agreement to paper; it’s the kind of mistake instantly recognizable by all graduates of the back-of-the-envelope school of legal draftsmanship.
Second, the agreement does not provide that these limited procedural safeguards, required in the Fundamental Law, carry over for incorporation into the new constitution. Why did the agreement not set forth certain basic principles governing Iraq’s future constitution, as NRO contributor Amir Taheri recently recommended? At least in theory, Iraq’s constitution makers will begin with a clean slate. Nothing is ruled in or out; everything is up for grabs. Goodbye, red lines.
Why exactly did the U.S. surrender all formal leverage over Iraq’s new constitution? Was it a matter of a weak bargaining position or weak bargaining skills? It’s hard to determine from this distance so soon after the event. But it’s impossible to square this hands-off approach with President’s Bush’s bold announcement that “a free Iraq in the heart of the Middle East will be a watershed event in the global democratic revolution.”
It’s equally unclear why the CPA took so long to tackle this impasse, whose existence is hardly news to NRO readers. What is clear is that delay increased the cost of resolution. And what’s also clear is that primary responsibility lies with the State Department, whose officials dominate the CPA’s policy apparatus–and who appear to have followed the well-worn path of least resistance until a full-blown crisis erupted.
President Bush would be well advised to find a more suitable companion–perhaps just a good poker player–for his next trip to the bazaar.
–Jack Cullinan, an expert in human rights and international law, formerly served as a senior foreign-policy advisor to the U.S. Catholic bishops .