Deconstituting Mesopotamia © Copyright by the Endowment of the United States Institute of Peace

21 Deconstituting Mesopotamia Cutting a Deal on the Regionalization of Iraq1

Jonathan Morrow

n the dust-ridden Baghdad summer of ence, under intense and public U.S. pressure, 2005, probably the most remarkable as­ without popular involvement, and with the pect of the drafting of the constitution conspicuous absence of one of Iraq’s major Ifor the Republic of Iraq was not the full-scale constituencies: the Sunni Arabs. Account- insurgency and incipient civil war raging a ing for approximately 20 percent of Iraq’s few hundred meters away on Haifa Street, population,3 Sunni Arabs had, before the outside the concrete blast walls of the Green U.S. intervention in 2003, dominated Iraq’s Zone.2 Nor was it the complexity of Iraq’s political and economic life. By 2005, they © Copyrightcompeting ethnic and sectarian by constituthe- Endowmentwere the main population base for of an anti- tional agendas, nor even the breathtakingly U.S. and antigovernment insurgency. In the theshort Unitedtimetable in which Statesthe document was Instituteconstitutional referendum of ofPeace October 2005, produced, a little over a month. Rather, it Sunni Arab voters overwhelmingly rejected was the scale of the mismatch between an- the new constitution,4 though they failed to ticipation and reality. The process laid bare a block its entry into force. Thus the new Iraq vaulting expectation, defying all the evidence, was born. of a transformative moment in which a new The world of politics—and not least Mid- national truth about a post-Saddam Iraqi dle East politics—is defined by the distance identity would be revealed. Instead, existing between intentions and outcomes. Even so, ethnic and sectarian differences prevailed, the Iraqi constitution drafting process is worth and the process was so mishandled that these pausing to consider. It was a constitution- differences were thrown, awkwardly, into making anticlimax that, far from marking even greater relief. The constitutional text the transformation of Iraqi social and po- was assembled hastily, by Iraqi political lead- litical identities, and far from forging a new ers who could barely stand each other’s pres- social contract around an Iraqi state, instead

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consecrated, in constitutional language, the in post-Saddam Iraq. Well before Iraq’s first already well-advanced breakup of the coun- national election on January 30, 2005, it was try into geographic regions that coincide expected that writing a permanent constitu- with ethnicity and sect. The constitution- tion would be an important, perhaps crucial, drafting process, inasmuch as it perempto- turning point in Iraq’s fortunes: It would be rily confronted Sunni Arabs with a vision a moment of liberation, not only from Sad­ of Iraq they could not recognize, probably damism, but also from the congenital sense of amplified the Sunni Arab insurgency and, in arbitrariness from which Iraq, as a collection turn, steepened the slide to civil war. At the of ethnically and politically disparate Otto- same time, this apparent failure carried the man provinces and British colonial construct, imprimatur of democratic legitimacy from had suffered. Iraq had seen constitutions beginning to end: The constitution drafters ­before the Americans arrived; two of the had been freely and fairly elected in January most well-known examples were the Consti- 2005 and the product of their work was duly tution for the Kingdom of Iraq, prepared in ratified by the Iraqi people in an October 1925 during the period of the British Man- 2005 referendum. Despite the Sunni Arab date, and the interim constitution of 1990, vote against it, nearly 80 percent of voters which nominally governed the latter years of across Iraq approved the constitutional text Baathist Iraq.9 However, none of Iraq’s previ- in the referendum,5 and soon afterward, in ous constitutions were democratic, none sat- December 2005, reelected to the first Iraqi isfactorily acknowledged Iraq’s regional and parliament the same politicians who had cut multiethnic nature, and the human rights the deal for the constitutional carve-up of protections expressed in these documents Iraq into two, and possibly three, separate re- did little, in reality, to protect Iraqi citizens gional entities. Confounding the lofty hopes from abuse at public and private hands. Suc- of the constitutionalists, most Iraqis decided cessive coups and atrocities by the autocratic that they were not Iraqi at all. The resulting rulers of Iraq through the twentieth century Iraqi state is, legally as well as practically, very had eroded anything resembling constitu- weak: It has no power to tax if a region does tionalism and rule of law. From the very early not permit it6; it has management power over days of the Coalition Provisional Authority ©only Copyrighta diminishing (albeit large) byportion theof (CPA)—the Endowment U.S.-led entity that the occuof­ Iraq’s oil resources7; and beyond a small list of piers instituted in May 2003 as the govern- exclusive competencies, it is otherwise sub- ing body for Iraq—a new constitutional order jectthe to regional United paramountcy. 8 StatesIt is possibly for Institute Iraq was a centerpiece ofof the occupation’sPeace the weakest federal government in the world. promise of a new democratic future. Why, one may ask in retrospect, would we But a constitution drafted in what cir- have thought it might turn out differently? cumstances? Others have pointed out the irony that the CPA’s early proposals for Iraq’s constitution-drafting process hardly Prelude to Constitution Making: carried democratic credentials.10 In the first A New Constitutionalism for Iraq? two doomed iterations, the constitution was From the beginning of the March 2003 oc- to be prepared by a CPA-appointed com- cupation of Iraq by coalition forces, Iraqi mittee of Iraqi drafters, assisted in a some- political circles, the Iraqi media, the U.S. what public fashion by an American expert administration, and the United Nations all in Arab constitutions11; or, failing that, by a assumed that establishing a constitutional drafting body selected through a complicated democracy would be the hallmark of success system of caucuses, the members of which Framing the State in Times of Transition 565

were, again, appointed (albeit indirectly) by by encouraging debate on the constitution through the CPA. The U.S. motivation behind these regular general public meetings in all parts of Iraq and through the media, and receiving proposals from undemocratic proposals was clearly a fear the citizens of Iraq as it writes the constitution. that elected drafters—drawn largely from the ranks of Iraq’s religious Shia Arab majority— . . . would be Islamist and pro-Iranian, and thus Article 61. The National Assembly shall write antipathetic to U.S. goals. Each of these pro- the draft of the permanent constitution by no posals was, however, swiftly vetoed by Shia later than 15 August 2005. The draft permanent religious leader Grand Ayatollah Ali Al- constitution shall be presented to the Iraqi peo- ple for approval to a general referendum to be Sistani, then at the height of his influence, who held no later than 15 October 2005. In the period insisted in a hukum sharii, a religious ruling leading up to the referendum, the draft constitution of greater strength than a fatwa, that Iraq’s shall be published and widely distributed to encour- 17 constitution be written by the elected repre- age a public debate about it among the people. 12 sentatives of the Iraqi people. The force of There is some anecdotal evidence that the his edict was felt well outside the community citizen-friendly emphasis of these TAL pro- of the Shia faithful. Thus began a series of po- visions was sponsored and authored not by litical negotiations that resulted in the CPA’s the Iraqi negotiators but, ironically enough, promulgation of a March 2004 interim con- by U.S. government officials who presided stitution that provided for a national election over the drafting. Those negotiators perhaps for a constituent body to prepare a new per- did so out of anxiety at the opacity of the manent constitution for Iraq. protoconstitutional discussion in Iraq up to The interim constitution—issued as a 18 13 that point. On the central issue in Iraq— CPA edict and known, somewhat euphe- the nature of Iraqi federalism—the TAL mistically, as the Transitional Administrative 14 reflected a U.S. bias toward strong central Law (TAL) —was itself far from a model of government in Baghdad, qualified by an good constitutional or even good legislative important and last-minute concession to process, as it was drafted by appointees of the Kurdistan regional government that any the occupier and there was very little citizen 15 permanent constitution could be vetoed by participation in its creation. The CPA was three governorates, including the three gov- © Copyrightto pay a heavy political price byfor its secretive the- Endowment of 16 ernorates that formed the bulk of the terri- ness. However, at one remove, the TAL’s tory of the Kurdistan Region.19 thetreatment United of the way inStates which the future InstituteThe significance of of Peace the TAL’s public- permanent constitution was to be drafted participation provisions was echoed a few arguably met the ideals of any “new consti- months later, in June 2004, in the UN Se- tutionalist” model for participatory constitu- curity Council resolution that conferred in- tion making. The relevant provisions of the ternational recognition on the coalition oc- TAL are as follows: cupation of Iraq.20 Though Resolution 1546 Article 30. During the transitional period, the did not, in its terms, require popular partici- State of Iraq shall have a legislative authority pation in the making of the permanent con- known as the National Assembly . . . Elections stitution, it advocated the principle: for the National Assembly shall take place . . . no later than by 31 January 2005. The Security Council . . . Decides that . . . the Spe- cial Representative of the Secretary-General . . . and the United Nations Assistance Mission for Article 60. The National Assembly shall write a Iraq (UNAMI), as requested by the Govern- draft of the permanent constitution of Iraq. This ment of Iraq, shall . . . play a leading role to . . . Assembly shall carry out this responsibility in part promote national dialogue and consensus-building 566 Jonathan Morrow

on the drafting of a national constitution by the 21 sovereignty is through a written constitution, people of Iraq. ratified and followed by free, democratic Where, precisely, did these expectations elections. Shortcutting the process would of good constitutional process come from? be dangerous,” CPA administrator L. Paul 23 It is not difficult to identify external, non- Bremer had stated the previous September. Iraqi influences at work. Certainly among However, these enthusiasms and expecta- the lawyers at the U.S. State Department tions were also echoed in drier prose outside and in the United Nations, there was an ap- the U.S. government, even by those other- preciation of the post–Cold War new consti- wise critical of U.S. policy in Iraq. Take the tutionalism and the symbolic significance of International Crisis Group: “Iraqis are to get popular constitution making in the democ- on with the creation of a document that truly ratization of countries such as South Africa. reflects them and their complex society, that Those lawyers turned their attention to more will set up a durable state structure protective 24 recent post-conflict experiences in Afghani- of all religious and ethnic communities.” stan and East Timor, where international The internal, domestic pressures for a new programs supporting peacekeeping and gov- constitutionalism in Iraq were less obvious ernance culminated, almost triumphantly, in and perhaps less strong. Without question, the entry into force of newly minted con- in the dwindling ranks of the educated Arab stitutions. These comparative constitutional Iraqi middle classes, there was a nationalist experiences have been well documented and yearning for a level of juridical normality un- sustained, for some in Iraq, the dream, if not known in the Saddam Hussein period, which the reality, of constitution making as a safe was characterized by conspicuously “interim” space in which true, unmediated, uncolo- constitutions, frequently breached—in short, nized visions for a country’s future could be no social compact at all. As one young Bagh- expressed by its citizens. The image of two dadi man put it in late 2004, “When we hear million South Africans helping to draft their talk of a permanent constitution, our eyes 25 successful constitutional compact was espe- light up.” In this nationalist vision, no par- cially influential.22 ticular constitutional outcome was the goal: Moreover, the overwhelming U.S. politi- It was enough to simply have a social com- ©cal andCopyright cultural influence in theby elite the - poli pact, Endowment necessarily accompanied by a drafting of tics of post-2003 Iraq brought to bear the process that would, somehow, engage the specific U.S. vision of a constitution as the whole Iraqi population. The Iraqi Prospect centerpiecethe United of stability and democraticStates in- Organization, Institute a civil-society of groupPeace with dependence. The constitutionalism of Phila- roots in the Shia south but following a lib- delphia is at the heart of the U.S. vision of eral nonsectarian program, put it succinctly its own democratic identity; it should not in December 2003: “This process in itself be entirely surprising that this vision was will help root democratic values and set Iraq rhetorically projected by the United States, on a course to freedom.”26 Never mind, for unaccustomed to managing a garrison state, the time being, what “Iraq” actually was, and onto the democratization effort in Iraq. In a who in the end had a commitment to “Iraq” dynamic familiar to observers of transitional over other political entities. governments, the idea of a permanent con- The longing for a permanent social com- stitution for Iraq became, over time, more pact was powerful among Iraq’s moderate and more closely linked, in U.S. policy plans, Arab political elites as well. A senior in- with a nation building success and a plau- dependent Shia intellectual, Dr. Hussain sible exit strategy. “The only path to full Iraqi Shahristani, sharing the popular desire for Framing the State in Times of Transition 567

constitutionalism, recalled with a shudder as a kind of intercommunal, consociational one of Saddam Hussein’s favorite bons mots: peace treaty that might consolidate Kurdish “A constitution is written by men so that independence from Baghdad.28 Iraqi Kurds, another man can tear it up.”27 At the time, having lived in de facto independence from Dr. Shahristani was deputy speaker of the Iraq and relative prosperity since the imposi- national assembly and, apparently, was deter- tion of the no-fly zone at the end of the 1991 mined that the new constitution should not Gulf War, saw their own ethnic identity and be so partial and flimsy. Though Ayatollah the principles of their own regional consti- Al-Sistani’s earlier insistence on an elected tution—in place, at least in draft form, from constitutional drafting body was typically 1992—as the grundnorms of their largely interpreted in the West as a demand that secular and quasi-sovereign existence, not the constitution should be authored by Iraq’s any Iraqi document. For Iraqi Kurds, who Shia majority, the ayatollah was also trying, suffered years of Iraqi-sponsored genocide with mixed results, to express the impor- in the 1980s,29 the posture toward a future tance of the Iraqi people generally having a permanent constitution for Iraq was essen- say in the founding document for the future tially defensive; they wished to make sure stability of the country. This view of Sistani’s that nothing agreed in Baghdad would erode motives is supported by the many instances their progress or qualify their autonomy.30 in which he later encouraged Shia politi- To a lesser extent, the Shia Arab community cians to bring Sunni Arabs into the drafting replicated this approach in the south of Iraq, process, and indeed, by the liberal views on which had also enjoyed some protection public participation that those Shia politi- against Saddam Hussein since 1991. This cians closest to Sistani espoused, including careful, pragmatic strain of constitutionalism the chairman of the constitution committee, was embodied in the unspectacular agree- Sheikh Humam Hamoudi; former National ments among anti-Saddam oppositionists, Se­curity Adviser Mowaffak Al-Rubaie; and including Kurdish and Shiite parties, at a Dr. Shahristani. Even if there was no strong 2002 meeting in London; these parties were Iraqi political identity, could not the act of united not by an Iraqi identity but by a com- drafting the constitution itself produce such mon anti-Saddam agenda. © Copyrightan identity? Could not moderate, by middle-class the EndowmentA constitution as treaty, then, wouldof not secularists, moderate Islamists, and moderate be a principled document leading to the con- Arab nationalists come together and forge a solidation of Iraqi political identity; it would, thenew IraqiUnited state? Could not States American consti- Institutemore modestly, be a ofmodus Peace vivendi for the tutional idealism be harnessed to serve Iraqi settlement of competing interests surround- ends? ing self-governance, resource management, Such was the more idealist constitutional and the role of religious law. As far as this last narrative in Iraq. But within the complex source of constitutionalism was concerned, frame of Iraqi politics, other less nationalistic, the relevant analogies were less to the United more pragmatic, and more powerful forces States, or even Afghanistan and East Timor, also worked to draw the public into the con- and—though it was not spoken at the time— stitutional debate. Many Iraqis—particularly, more to Bosnia and Herzegovina, Sri Lanka, but not exclusively, Iraqi Kurds—perceived and Sudan: countries where, if constitutional that in a multisectarian, regionalized coun- success was to be achieved, it would be in the try, a permanent constitution would be de- absence of an overarching national identity. sirable, if not necessary, less as a classic social Even this pragmatic vision of an Iraq con- compact between citizen and state, and more stitution, however, to some extent depended 568 Jonathan Morrow

on popular support and engagement. In Iraqi Shia and Kurdish compatriots. With one of Kurdistan, which prided itself on its fledgling Iraq’s three major communities having thus democratic principles, elites realized that the denied itself an elected seat at the drafting argument for autonomy needed to be made table, it followed that the only way in which with reference to popular support—hence Sunni Arab citizens of Iraq would be able to the spontaneous poll organized by the Kurd- express their views to the constitution com- istan Referendum Movement at the time mittee would be by direct communication; of the January 2005 election, intended to no person within the committee purporting demonstrate support for Kurdish indepen- to be a Sunni Arab leader would have the dence. The results, overwhelmingly in favor democratic legitimacy to adopt positions on of Kurdistan’s independence,31 were a use- the constitution on behalf of the Sunni Arab ful negotiating instrument for Kurdish ne- people of Iraq. In short, it was clear that un- gotiators in Baghdad the following summer elected Iraqis would need to participate in the as they pressed for greater regional powers. drafting. Therefore, the public participation Less sophisticated methods of demonstrat- component of new constitutionalism, at least ing popular support for constitutional issues, within the Sunni Arab parts of Iraq, began to most notably the mass rally, were used in look less like the icing on the cake of univer- the much less democratic Shia south. In the sal suffrage and more like an essential peace- ideological vacuum left by the collapse of the making instrument to prevent a full-scale Arabist, secular nationalism of Saddam Hus- civil war in the heart of the Middle East.33 In sein’s Baath Party, it was these narratives of the midst of a robust insurgency by the end non-Iraqi identity that became stronger and of 2004, the secretly drafted TAL was already stronger. For those who cared to notice, the a failed document: Not a single substantive vision of the Iraqi citizen was almost com- provision in it was implemented.34 In par- pletely unrecognizable to most Iraqis. ticular, Kurdistan’s regional government had These were the idealist and realist impulses not dismantled its irregular military forces, within Iraq that the U.S. drafters of the TAL nor surrendered control of oil administration drew upon, intentionally or not, when they to Baghdad; human rights protections were included the mandatory language of public in name only; provisions for the resolution of ©meetings, Copyright public debate, and citizen by propos the- disputed Endowment internal boundaries were neglected; of als on the constitution of Iraq. The language and the writ of the central government was became important very quickly. After the barely enforceable in any part of Iraq. But, TALthe drafting United in March 2004, Statesthe merits of so Institutethe theory went, if Sunni of Arabs Peace could be a careful, open, truly organic public drafting persuaded to participate in and vote for a process became increasingly obvious and ur- new, permanent constitution for a sovereign gent. By the end of 2004, the Sunni Arab in- Iraq, then the alarming fractures that were surgency, composed of both Baathist sympa- opening up in Iraq could be narrowed and thizers and Islamist radicals, gathered force, the coalition occupation of Iraq, apparently wreaking violence and radicalizing the world hated by the Sunni Arabs, could be brought of even peaceful Sunni politics.32 The Sunni to a close. Bromides about “inclusivity” and Arab political elite made it clear that they “public participation” by “civil society” began would, in protest at the occupation of Iraq, to get a foothold. This was a theory that was boycott the January 2005 elections for the apparently shared across the country.35 Secu- national assembly, effectively forfeiting their lar, moderate, and Sunni idealists and Shia right to coauthor the constitution with their and Kurdish realists had much common Framing the State in Times of Transition 569

ground on the question of constitutionalism, to the vagaries of the U.S. domestic political if not the constitution itself. timetable, the U.S. administration was quite In these circumstances, one might have unable to find political solutions for Iraq. In thought that by 2005, U.S. policy settings fact, through the constitutional process in would have been fixed to maximize the ben- 2004 and 2005, U.S. policy worked to elimi- efits, within Iraq, that widespread commit- nate the possibility of a moderate, realistic, ment to a participatory process and a care- federal political agenda emerging from the fully drafted Iraqi constitution might deliver. Sunni heartland. Sunni exclusion from the Those policy settings might have consisted constitutional talks was mishandled. What of some combination of the following seven commitment existed in Iraq’s Sunni, Shia, strategies: first, maximizing the likelihood and Kurdish communities toward participa- that Sunni Arab politicians would be elected tory constitution making was more or less to the national assembly (and thereby to wasted. the constitution committee); second, making sure that the Sunni Arab elites understood the constitutional implications of their own The Constitution-Making Process minority status; third, ensuring that the im- and Its Unraveling plications were also understood in the Sunni Arab heartland, as much of the Sunni Arab Election Failure: Sunni Arab Boycott elite had boycotted the political process un- The first concrete sign of Iraq’s looming der pressure from the insurgency; fourth, constitutional problem was the boycott an- ensuring that the national assembly and the nounced by the bulk of the Sunni Arab lead- constitution committee established by the ership in advance of the January 31, 2005, assembly were fully resourced and staffed to election, required by Article 30 of the TAL. conduct a major, intensive, comprehensive This boycott raised the specter of a constitu- outreach campaign to all parts of Iraq, in- tion-drafting national assembly from which cluding the Sunni Arab areas, to show the one of Iraq’s major communities would ex- benefits of federalism to national minorities; clude itself, massively undermining the sta- fifth, if necessary, encouraging the drafters tus of any constitution that might ultimately © Copyrightto invoke the time extensions by built intothe the Endowmentemerge. of constitutional timetable to allow the engage- The scale of the problem was, as it turned ment with Sunni Arabs to take place; sixth, out, compounded by the nature of the elec- theworking United with Shia and KurdishStates leaders to Institutetoral law for Iraq—a of law recommendedPeace by determine what symbolic or substantive con- the Electoral Assistance Division of the De- cessions could be made to a Sunni position; partment of Political Affairs in the United and seventh, at all costs, removing any reason Nations Secretariat. That law created for that Iraqis, particularly the highly nationalis- Iraq one single, nationwide electorate with tic Sunnis, may have to suspect that the con- proportional representation. The model was stitution for Iraq would be imposed by the chosen in large part because it was easy to United States. administer (the United Nations had imple- In fact, the United States did not adopt mented the same model in Afghanistan, such a policy, and not one of the strategies East Timor, and elsewhere); because the was implemented. Lurching between the model could, in theory, erode regionalism loftiness of Philadelphia-inspired idealism and sectarianism by forcing candidates to ap- and a readiness to abandon Iraq’s constitution peal to a nationwide electorate; and because 570 Jonathan Morrow

it gave greater scope to independent candi- ereignty. The calls were picked up by opinion dates and smaller parties. However, the law makers in the United States.38 The U.S. ad- was prepared before the fact of a Sunni Arab ministration did not postpone the election, boycott, and in the face of the boycott, the however, and the boycott took place. In No- results of such an electoral approach carried vember 2004, Sunni Arab leaders, including serious consequences for Iraq’s constitution. the umbrella Iraqi National Foundation Con- The effect of the single electorate model—as gress, rejected the election on the grounds opposed, say, to a model in which each of that it was taking place under coalition “oc- Iraq’s eighteen provinces would constitute cupation” and was therefore illegitimate and an electorate—was ultimately to eliminate likely, in the words of the Muslim Scholars Sunni Arab representation almost entirely Association leader Harith al-Dhari, to be in the national assembly.36 An electoral sys- “faked.”39 Even the more moderate Iraqi Is- tem based on Iraq’s provinces, which might lamic Party—moderate enough to have been guarantee a minimum number of elected part of the CPA’s governing council—pulled candidates from each province regardless of out of the election, provoked by the October a low turnout in the province, would have 2004 coalition military offensive against the produced an elected Sunni leadership— predominantly Sunni town of Fallujah and from the overwhelmingly Sunni provinces of the deteriorating security situation gener- Anbar, Salahiddeen, and Ninevah—of a size ally. 40 The boycotts and the simultaneous cam- proportionate to the Sunni share of the Iraqi paign of violent intimidation of Sunni Arab population. That leadership would have had voters by insurgents resulted in only 17 Sunni some claim to be able to represent the Sunni Arabs being elected to the 275-member as- people of Iraq in the constitution drafting.37 sembly, a very low number compared to the As it turned out, however, the electoral law proportion of Sunni Arabs in Iraq. Moreover, threatened to reduce Sunni representation none of these delegates was elected as part in the assembly to zero; seats forfeited by of an explicitly Sunni ticket. By contrast, the Sunni Arab boycotters would go, in their en- Kurdistan Coalition List, drawing support tirety, to Kurdish and Shiite candidates. Any from an electorate about the same size as the subsequent constitution would, therefore, be pool of eligible Sunni Arab voters, won 75 ©unbalanced. Copyright by theseats. Endowment The predominantly Shia United of Iraqi As the de facto decision maker in Iraq, the Alliance won 140 seats—an absolute major- U.S. government did little more than pon- ity that, in theory if not in fact, gave the party derthe the question United of whether to Statespostpone the the Institute ability to write a constitution of withoutPeace in- January election, in the hope that the Sunni volving any other political grouping, as the parties would relax their boycott. Throughout TAL, surprisingly enough, had prescribed this period, the agony of insurgent violence no special parliamentary majority for the ap- and the overwhelming question of Sunni proval of the constitutional text.41 participation prevented parties from devel- The low Sunni Arab turnout at the January oping substantive constitutional platforms election raised the likelihood of a draft consti- for election, which was remarkable given that tution that would exclude Sunni Arab views the overriding responsibility of the elected and that, in an already deteriorating security was to draft a constitution. Calls to postpone environment, would cement Sunni Arab op- the election originated with Sunni politi- position to the program of any elected gov- cians, who were by now openly hostile to the ernment. This opposition presented immedi- U.S.-led coalition and unimpressed with the ate juridical problems for the United States. results of the CPA’s June 28 handover of sov- The first problem was the possibility that the Framing the State in Times of Transition 571

constitution would be blocked at the refer- consent to the Iraq state and the constant endum because of an overwhelming Sunni threat of violence. Arab vote against it in Anbar, Salahiddeen, and Ninevah.42 This possibility was real, for the central functioning feature of the TAL Process Failure: Time Pressures and the Exclusion was the provision, in Article 61(C), that gave of Sunni Arab Negotiators any three of Iraq’s eighteen provinces the It was of the utmost urgency and importance ability to veto any constitutional draft by a that popular, if unelected, Sunni leaders be two-thirds majority of votes.43 Article 61(C) able to put to one side the anti-American had been included in the TAL text as a politics that led to the boycott and come for- modification of a demand from the Kurdish ward with a serious constitutional position parties, who had strong support in at least that, within a federal framework, truly served three provinces and had perceived a threat the interests of their constituents. However, to their de facto autonomy from an Arabist at the beginning of 2005, U.S. policy was not or nationalist Iraqi constitution; ironically directed at supporting the development of a enough, once included, an Article 61(C) veto Sunni position on federalism. By April, when posed the greatest threat to the Kurds, who the first formal constitution discussions be- were well-organized and therefore likely to gan in Baghdad, the overriding U.S. policy do well in the constitutional negotiations. objective continued to be speed. The United The Sunni Arabs, not the Kurds, were now States clung to the view that the breakneck the political outliers in Iraq, and the Kurds timetable of the transition should be met at themselves would have a chance to write the all costs; in particular, Iraqis were reminded, permanent constitution, where they had no the constitution had to be completed by Au- such chance with the TAL. gust 15, 2005, the first deadline specified in Sunni Arab opposition to the constitution the TAL. Statements from U.S. government also, however, presented a second, more grim officials ignored the power that the national problem that was not juridical but political assembly had, under the TAL, to extend in nature. Even if the constitution succeeded the August 15 deadline by six months “if at the referendum, failed Sunni opposition to necessary.”44 Necessity, in the circumstances, © Copyrightthe text would signal a still bymore profoundthe Endowmentpresumably would encompass an of extension rupture in Iraq: a permanent sectarian cleav- to secure the support of one of Iraq’s three age in Arab Iraq between Sunni and Shia main communities.45 theMuslims. United This would spell States the utter failure of InstituteThere was some reasonof toPeace expect that even Iraqi nationalist, new constitutionalist, and in the short period between the January elec- even pragmatist ambitions for a constitu- tions and the August deadline, Iraq’s Sunni tional compact to include all three of Iraq’s Arabs might regroup and engage in the con- major groups. Once a permanent constitution stitution drafting. For one thing, the Sunni for Iraq had been passed over Sunni Arab leaders themselves were saying so. A num- objections, that document would represent, ber of Sunni Arab leaders publicly indicated indelibly, not only the absence of a shared in November 2004 that notwithstanding Iraqi identity but also a failure to reach even the election boycott, they would be willing a pragmatic treaty-like accommodation, with to engage in the postelection constitutional permanently destabilizing effects. The - con discussions. Statements of boycott often con- stitution would fail to deliver on the promise tained an implication that if future consti- of Iraqi consensus and would be a permanent tutional discussions for a democratic Iraq reminder of both Sunni Arab withdrawal of were relatively free from coalition influence, 572 Jonathan Morrow

then unelected Sunni leaders could support The early weeks of the drafting process were those discussions as a sovereign Iraqi (and promising in some respects. The national as- not foreign) process. In the weeks before sembly leaders agreed that though the as- the election, Shia and Kurdish party leaders sembly was formally charged with responsi- reciprocated these Sunni Arab advances. As bility to “write” the draft constitution under if to confirm the agreement, on January 27, TAL Article 61(A), the 275-member assem- Wamidh Nadhmi, a secular spokesman of bly could appoint a smaller body to draft the the Iraq National Foundation Conference, document for later presentation to the larger echoing the views of the conservative Sunni assembly. This body—the constitution com- fundamentalist Muslim Scholars Associa- mittee—was created, complete with thematic tion, stated that despite the electoral boy- and functional subcommittees.48 Moreover, cott, “if we were invited by respectable com- with some U.S. and UN prodding, the lead- mittees [in the National Assembly] I don’t ers eventually agreed to the principle that see why we wouldn’t say what we think of the nonmembers of the assembly could become constitution.”46 members of the drafting committee. After Party leaders reaffirmed that this consti- some false starts,49 Sunni Arab negotiators tutional backup deal was on the table after nominated fifteen50 new representatives to the election results were announced in Feb- join the assembly’s fifty-five-member draft- ruary, and their advisers acted accordingly. ing committee in late June 2005, and the fol- At that time, a group of Iraqi lawyers and lowing weeks saw those representatives par- political advisers discussed the question of ticipate in the committee’s activities.51 The Sunni Arab inclusion in detail in a cross- committee adopted the principle of consen- factional working session, convened by the sus decision making52 to provide some assur- United States Institute of Peace (USIP) and ance that Sunni Arab members would not be the American Bar Association near the Dead sidelined in a committee on which, because Sea, in Jordan. Senior UN officials attended they were not elected to the Assembly, they the meeting. These discussions set the stage had no formal vote. In finalizing the com- for a constitutional process that might have mittee composition in this way, the assem- diminished the perception of illegitimacy bly implicitly rejected, without discussion, ©among Copyright Sunni Arabs and other nationalists.by the the earlierEndowment proposal developed at the Febru of- Among other things, the cross-factional ary Dead Sea meeting that the constitution body recommended that Iraqis who were should, at least in the first instance, be drafted notthe elected United to the assembly, including States Sunni by Institute a commission that would of be independentPeace Arabs, should be appointed to any drafting of the government and the assembly, for later committee or commission that the assembly consideration by the assembly. The assembly created. These recommendations were appar- also rejected the possibility raised at the Dead ently in line with Iraqi public expectation. Sea meeting that the drafting body contain, The U.S.-based International Republican as members, Iraqi civil-society representa- Institute’s (IRI) polling conducted in April tives or constitutional experts.53 Unelected showed significant public will across Iraq to members of the committee were added only include Sunni Arabs in the constitutional to accommodate the most pressing constitu- process.47 ency: Sunni Arab political figures. As events transpired after the January Even so, the extent to which the commit- 2005 elections, however, the fears of an ex- tee could operate as a forum to express Sunni clusionary constitution-making process were Arab constitutional positions was marginal realized. This was not immediately obvious. at best. The real problem was that time was Framing the State in Times of Transition 573

slipping away; the August 15 initial dead- to extend the constitutional deadline beyond line was approaching. Prolonged negotiations August 15 would earn the displeasure of the over the formation of an Iraqi cabinet ab- U.S. government, on which, at that time, all sorbed all political attention until April 28. politicians in Baghdad depended for their Negotiations over committee membership salaries and security. “The [United States] continued until May 11. The chairman of the supports the Iraqi people in their desire to committee was not appointed until May 23. complete a constitution by August 15”59 was The result was that the period during which the standard pronouncement, made in cir- Sunni Arabs were able to take part in the cumstances in which an expression of that committee’s activities was incredibly short. It desire was far from universal within Iraq. The was late June before the fifteen Sunni Arab desire was only ever expressed by pro-U.S. members were invited onto the committee, Iraqis after they had heard that the August and it was later still, July 8, before they at- 15 deadline was a demand of the United tended their first meeting. On July 13, the States government.60 Sunni committee members arrived at the Most of the Iraqis closest to the negotia- convention center and were shown texts of tions clearly favored a more extended time- the sections of the constitution to which the line, including—though he never publicly subcommittees already had agreed, texts that announced as much—the chairman of the settled almost all but the most important of committee, Sheikh Humam Hamoudi, him- constitutional questions, the respective pow- self a quiet proponent of the southern fed- ers of central and regional governments in eral region and particularly attuned to the the federation. Matters were complicated fact that Iraq’s Sunni Arabs were unprepared horrifically on July 19, when a Sunni Arab for such a structure. Under the terms of the committee member, Sheikh Mijbil Issa, was TAL, if the assembly were to invoke the pro- assassinated, together with his adviser, in the visions to extend the constitutional process, it Baghdad suburb of Karrada, presumably by would have to do it before August 1, presum- Sunni Arab insurgents. Some Sunni Arabs ably on the committee’s advice. On July 31, on the committee suspended their member- Sheikh Hamoudi indicated to the commit- ship until the government could assure them tee his wish to extend the process to Septem- © Copyrighta higher level of security protection. by the Endowmentber 15. In early June, he had already of sought Meanwhile, the drumbeat from the United confidential independent advice from foreign States on the immovability of the August consultants61 on timeline extension options; the15 deadlineUnited continued. CommitteeStates leaders, Institutethe immense work needed of toPeace reach true con- having committed repeatedly and publicly sensus weighed heavily on his mind. This to meeting the default TAL constitutional preference for an extension was shared by deadline of August 15, remained under in- Mahmoud Othman62 and other senior Kurd- tense time pressure from the United States ish negotiators, representatives of the group to produce a draft. Public and private state- that was least dependent on U.S. protection ments of senior U.S. officials, including the and that, ironically, most benefited from the national security council senior director for haste.63 Foreign advisers to the Kurds, often Iraq, Meghan O’Sullivan,54 Deputy Secre- suspected of encouraging Kurdish maximal- tary of State Robert Zoellick,55 Secretary of ism, also recognized the coming collision State Condoleezza Rice,56 Secretary of De- and supported extending the timeline or fense Donald Rumsfeld,57 and the president even abandoning the constitutional proj- himself,58 dramatically increased this pressure. ect altogether.64 Senior Shia list officials on These statements made it clear that any move the committee, including Abbas Bayati, lent 574 Jonathan Morrow

further support to extension,65 as did—pri- unstated, but widely assumed, was the desire vately—senior independent Shia leaders in of the George W. Bush administration to di- the assembly, such as committee member and rect the attention of the U.S. public to some chairman of the Council of Iraqi Minorities perceived—though, realistically, arbitrary— Dr. Hunain Al-Qaddo and Dr. Younadam measure of success in Iraq.70 Kanna, committee member and leader of Under this pressure, the committee even- an independent Chaldo-Assyrian Christian tually snapped. By late July, the U.S. embassy party.66 The leaders of most, if not all, impor- was clearly unimpressed with the drafting tant civil-society organizations saw the prob- progress the committee had made to that lem and expressed their desire for an exten- date and decided to move the discussions to sion. Focus group research conducted in April a nonexpert, elite political level. The commit- 2005 by the U.S.-based National Democratic tee was effectively scrapped or rendered de- Institute (NDI) had already revealed strong funct by the closed-door meetings of politi- reservations across Iraq regarding the value cal party leaders that began in the Baghdad of a hasty constitutional process.67 On Au- International Zone on August 8, explicitly gust 1, the speaker of the assembly, moderate convened by the U.S. government. Scrapping Sunni Islamist Hajim Al-Hassani, was clearly the committee on August 8 meant that the expecting to receive a request from Sheikh Sunni Arab committee members, after no Hamoudi for an extension. Some outside more than one month of halfhearted efforts observers, including the International Crisis to develop and assert a coherent constitu- Group, had noticed the wide interest in an tional position on Iraqi federalism, were re- extension and had publicly doubted the pos- tired en masse. The span of their entire life on sibility and desirability of meeting the Au- the committee ran from July 8 to August 8. gust 15 deadline. These outside views, picked After August 8, constitutional negotia- up and echoed widely in the U.S. media,68 in tions took place in a series of private, ad hoc turn influenced the Iraqi political class.69 meetings among Kurdish and Shia party The United States, however, maintained its leaders—the so-called Leadership Council, policy of haste, even when it was clear that no as it was termed by the international press, constitution was emerging from the commit- or more informally by committee members, ©tee, noCopyright public discussion had been conducted,by the the kitchenEndowment (matbagh).71 In its basic form,of and calls from Washington to accelerate the the Leadership Council consisted of Su- drafting process were increasingly heard as preme Council for the Islamic Revolution in expressionsthe United of imperial power. States In the days Iraq Institute (SCIRI) leader Abdul of Aziz Peaceal-Hakim, prior to August 1, U.S. ambassador Zalmay Shia Dawa party leader and prime minister Khalilzad convened meetings with political Ibrahim al-Jaafari, and Kurdish party leaders party leaders to impress upon them the im- Jalal Talabani and Massoud Barzani.72 No portance of meeting the August 15 deadline. member of Iraq’s Sunni Arab community He issued similar messages to members of was a member of the council. The meetings the international community. The U.S. gov- took place at irregular intervals at a num- ernment’s strong demarches stand out as the ber of private residences and compounds in principal reason for the assembly ultimately the International Zone, and occasionally at declining to invoke the TAL extension pro- the U.S. embassy. The U.S. ambassador was vision on August 1. The rationale behind the almost always present, but the Sunni com- rush to a deadline was sometimes explained mittee members had no right of attendance by U.S. officials as the need to keep momen- and were not often invited, even though they tum in the Iraqi political process; what was frequently requested attendance. There were Framing the State in Times of Transition 575

so few Arab nationalists in the room that and allowed new federal regions to be cre- much of the discussion was conducted not ated by a unilateral electoral act. The Leader- in Arabic, but in Farsi.73 The U.S. ambassa- ship Council summarily removed provisions dor, in his haste, would have consented to a establishing the powers of a federal human Shia demand that clerics be appointed to the rights commission and the powers of an up- Supreme Federal Court, had certain secular per house of federal parliament and concen- negotiators not leaked this fact to the U.S. trated on bolstering the powers of regions. media. The expectation instigated by the U.S. The future of Iraqi federalism now pivots embassy was quite clear: the Shia and Kurd- around a uniquely short set of exclusive fed- ish parties would agree to a constitutional eral powers77 and a provision that states that text, which would then be presented as a fait in all other matters—including by implica- accompli to the Sunni Arabs, who would tion criminal process, personal status, and be asked to take it or leave it.74 Though the human rights—regional law takes priority in August 15 deadline was overshot—in legally any conflict.78 dubious circumstances—this is exactly what happened: Instead of taking it, they left. This carried grim implications that the Sunni Consequences of Rushing the Process: leaders pointed out immediately: “We warn the Lost Sunni Arab Constitutional Agenda of dire consequences of this situation.”75 Before the Leadership Council began meet- The problem was not the intrusion of elite ing on August 8, would a more extended time politics upon some pristine expert constitu- period for constitutional deliberations within tional drafting process. On the contrary, the the committee have produced a better result? sheer pace of the timetable made a farce of Would this have created the conditions for both idealist constitutionalism and any prag- Sunni Arab engagement with Iraqi federal- matic form of intercommunal political bar- ism? Given the committee’s shortcomings, gaining.76 The Kurdish and Shia members of the proposition that an extension would have the Leadership Council, though given license helped is, at first glance, doubtful. Through by an unwitting United States to dismantle June and July, the committee lacked the abil- the hitherto Sunni-dominated Iraqi state, ity to identify constitutional issues and reach © Copyrightwere themselves distinctly uneasyby with the their Endowmentcommon ground across factions. Noof agree - instructions; the convening of the Leader- ment had been reached on the all-important ship Council on August 8 had been delayed questions of oil management and revenue, thefor weeks United while the U.S. embassyStates strenuously Institutethe role of religion inof the state, Peace or the status pressured Kurdish national leader Massoud of federal regions. With some encourage- Barzani—the politician who most gained ment from the United States, the question from the compressed timetable—to agree of the very structure of the Iraqi state was that a constitution for Iraq was worth the trip frequently shrunk, in an exercise of rhetori- from the mountains. He came down from cal wishful thinking, to the issue of federal- the mountains, spoke with Abdul Aziz Al- ism—apparently just one of a number of is- Hakim, and, to paraphrase Boris Yeltsin, they sues, such as de-Baathification or the ethnic took as much sovereignty as they could swal- identity of Iraq. Committee drafting work low. The immediate result was a draft- con was slow, and discussions at committee meet- stitution that made petroleum production a ings were frequently abstract and academic. regional power, stripped the federal govern- The discussions did not involve the practical ment of taxation power, enshrined the abil- bargaining and trading clearly necessary to ity of regions to maintain a regional guard, produce the consensus that the committee 576 Jonathan Morrow

had established rightly as its goal. Moreover, pragmatists who might, in particular, accept a political party leaders did not provide their federal rather than a unitary state.79 committee representatives with clear man- Such a profound failure does not neces- dates, inhibiting true consensus. The short sarily mean that representative, pragmatic life of the committee was characterized by Sunni leaders actually existed in Iraq at that frequent resignations and walkouts by Sunni time. Even with all the time in the world, the Arab, Kurdish, and other representatives. gap between the Sunni Arab and Shia con- Committee meeting minutes were not taken, stitutional positions on federalism may not so that progress was not especially clear or have been reconcilable within the committee. transparent. Subcommittees produced draft Even if the Sunni Arabs had accommodated chapters haphazardly, without consulting the themselves to the reality of a legally distinct committee in plenary. Kurdistan Region, there was arguably little The committee also did not adopt a set of chance that the Sunni Arabs would reach rules and a work plan to clearly define, for all an accommodation with SCIRI, which, over participants, the stages in the constitutional the course of July, pressed for a constitutional process. There was no protocol to address the right to create a new southern federal unit fact that crucial off-line bilateral negotiations to mirror that of Kurdistan, a much greater among the three major political blocs of Shia threat to the Arab nationalist identity. The Arabs, Kurds, and Sunni Arabs would be model of federalism the Kurdish and Shia needed at each step of the way. Nor was there kitchen finally offered to Sunni Arab nego- a protocol for committee interaction with the tiators at the end of August would not only Iraqi public. Occasional press conferences consolidate a large degree of autonomy for were held in the heavily guarded convention the Kurdistan Region but would also allow center in the International Zone to update for other future federal regions, including a the media on the committee’s drafting work, southern, predominantly Shia, federal unit. but these did not involve serious dialogue In rejecting this model, the Sunni Arabs on constitutional issues. In many respects, took a stance that bluntly and fundamentally too, many viewed the committee’s failures as contradicted the bilateral Kurd-Shia agree- specifically Sunni Arab failures. The Sunni ment on the terms of a regionalized Iraq, ©Arab Copyright committee members were by continu the- when Endowment that agreement was apparently of not ally criticized for being drawn largely from open to modification.80 The central Sunni the Baghdad political elite and insufficiently Arab objections as stated lay with the pros- representingthe United their constituency. States Meanwhile, pect Institute that a southern federal of unit wouldPeace radi- the Kurdish and Shia committee members cally challenge a Sunni Arab conception of wrestled interminably with their incompat- the integrity of the Iraqi nation and—so it ible desires to exclude former Baathists and was imagined—sandwich weak Sunni Arab consolidate their gains or, in the face of the nationalists between the two strong and oil- electoral boycott, to find truly representative rich provincial powers of Iraqi Kurdistan and Sunni Arabs with whom a durable consti- a new Iraqi “Shiastan.” tutional order might be negotiated. Some The general sense of despair within the on the committee felt that Sunni Arab civil- committee over its irreconcilable views turned society leaders, including tribal leaders, had into personal hostility. As constitutional been largely overlooked to the peril of the fi- rhetoric amplified toward the end of July, nal constitution but were unable or unwilling adherents of the Kurdistan and Shia parties to make a serious effort to find Sunni Arab alleged in public and private, and not without Framing the State in Times of Transition 577

foundation, that the Sunni Arab negotiators might even work to their benefit.84 Sunni had no intention of finding common ground. Arab negotiators had already accepted a They stated a belief that the Sunni Arab ne- governorate-based federalism that would gotiators had as their primary objective the imply self-government in Sunni Arab areas assembly’s failure to meet the August 15 of Iraq. As one Sunni Arab lawyer put it: deadline. Under the relevant TAL provisions, “When you ask a Sunni if they want Anbar a failure to meet—or extend—the August to rule Najaf they say no; if you ask if they 15 deadline would automatically precipitate want Najaf to rule Anbar, they say no. They the dissolution of the assembly and man- want federalism without realizing it.”85 date elections for a new assembly, to which Moreover, at no point was there a strong more Sunni Arabs would be presumably be statement by Sunni Arab negotiators against elected.81 In their darker moments, Kurdish the existence of a relatively autonomous and Shia negotiators apparently believed that Kurdistan Region. Rather, some Sunni Arab this so-called nuclear option was the primary opinion makers were working with their ambition of the Sunni Arabs, a belief that constituents to bring about credible and ac- in turn strengthened the hands of Kurds ceptable Sunni Arab positions. Groups of and Shiites looking for pretexts to disband secular Sunni Arab lawyers, including the the committee and strike a bargain over the National Constitutional Association, were Sunnis’ heads.82 If Sunni Arabs had never in- working strenuously to modify the hard-line tended to cooperate—if the Sunni leadership views of more extreme Sunni groups, includ- was conducting, in the negotiating room, a ing the Muslim Scholars Association.86 similar style of resistance to that of the armed In the final days of August, some leading insurgency then raging throughout Iraq’s cit- Sunni Arab negotiators were privately sym- ies more fiercely than ever83—what hope was pathetic to some models of Iraqi regional there for any constitutional process in Iraq? federalism but were unable to openly modify Why not just accept the U.S.-imposed­ time- their positions because of the views of their table? Several indicators suggest, however, constituent institutions and populations. that Sunni Arab positions had not hardened Opinion data collected by NDI and others against federalism and were not as intrac- show that hostility in Sunni Arab society to © Copyrighttable as some have suggested. by An extendedthe Endowmentthe concept of federalism stemmed of not from constitutional process very likely would have informed self-interest but rather from a produced better results. ­misperception that federalism (ittihadiyyah) the United States Institutewas some kind of codeof word Peace for Kurdish separation and, more generally, the partition The Moderating Sunni Arab Position on Federalism of Iraq.87 There was scant recognition in the First, influential sections of the Sunni Arab Sunni Arab heartland that federalism is an community in June and July, in evolving dis- internationally recognized way to structure cussions on the terms of Iraqi federalism, a state that can be mutually beneficial as to were beginning to produce more moderate the respective interests of different regional constitutional positions—not out of any and ethnic groups. Nationwide interviews growing sense of fellow feeling with their conducted by the UN Office for Project Kurdish and Shia counterparts, but out of Services between July 20 and July 25, 2005, grim pragmatism. There were signs that showed that of the Sunni Arabs in the inter- some influential Sunni Arabs were com- view group, 51.7 percent believed federalism ing to accept the possibility that federalism would lead to a divided Iraq and 46.8 percent 578 Jonathan Morrow

believed federalism would lead to civil war; texts that, over time, became increasingly only the remaining 2.5 percent of the Sunni ambitious and firm. The Kurds had -inter Arab interview group took the third choice, nally agreed on their nonnegotiable red-line concluding that “federalism will ensure the positions, which committee members from rights of Kurds and other minorities.”88 By the Kurdistan Coalition were not at liberty comparison, a year earlier Shia popular opin- to modify.90 During the January election, ion reflected a similarly limited understand- the Kurdish parties orchestrated a region- ing of federalism, including a belief that wide poll that predictably showed a popular federalism simply meant Kurdish separation. preference for independence over integra- Over several months of Shia strategizing on tion into Iraq. This result sent the message to constitutional matters, the position of popular non-Kurdish parties that the Kurdish lead- Shia sentiment moved significantly—if not ers had little room to retreat from maximal- uniformly—toward accepting federal consti- ist constitutional positions. Similarly, in late tutional models, as evidenced by the August July, the Kurdistan national parliament gave 11 show of support for a southern federal re- the Kurdistan parties a clear mandate on gion. Similarly, if Sunni Arab constitutional these red-line positions, which were made negotiators were to accept the terms of a public.91 Street demonstrations across the federal Iraq, their constituents would need Kurdistan Region on August 15 also showed to authorize them to do so. Getting Sunnis support for the Kurdish parties. Further- talking about federalism was clearly essential. more, the Kurdish parties were able to invite By July, the dialogue had clearly begun, but into the ad hoc meetings experienced non- the deadline of August 15 did not allow it to Iraqi negotiators and constitutional lawyers produce results. The Sunni Arab position as to advance the Kurdish case.92 articulated in July and August was prema- The Shia parties, for their part, did not ture, emotional, and, most crucial, without have clear mandates from their constituencies the benefit of an informed debate among the and did not choose to deploy foreign experts broader Sunni Arab population.89 or negotiators. The Shia Alliance position during the final days of the Shia-Kurd ne- gotiations was subject to radical changes and ©Imbalanced Copyright Negotiating Capacity by thereversals, Endowment frequently wavering on the basicof The highly compressed timeline for consti- terms of federalism, petroleum management, tutional discussions also amplified the im- and the constitutional status of Shia clergy. balancethe between United the competence States of the es- Somewhat Institute surprisingly, no of Shia partyPeace tabled tablished Kurdistan and Shia parties on the a ready-made draft constitution for Iraq. (An one hand and the Sunni Arab representatives earlier, very Islamist-influenced draft, circu- on the other. The August 8 dissolution of the lated in early 2005 by a branch of the Islamic committee apparatus and the beginning of a Dawa Party of Iraq, did not arrive at the ne- last-minute, unstructured three-way negotia- gotiating table.)93 Strong factions within the tion shifted great weight, very suddenly, onto Shia Alliance, however, clearly had resources the respective negotiating teams. The Sunni to use as soon as their strategic interests be- Arab team was, by far, the least organized, came clear. On August 11, in the final days further radicalizing their position. of negotiations, SCIRI leader Abdul Aziz al- By August 2005, the Kurdistan Region Hakim mobilized the well-organized SCIRI parties were well prepared for ad hoc nego- base to stage large public demonstrations in tiations. They had developed constitutional Najaf and other southern Iraqi cities in favor positions and even draft Iraqi constitutional of forming a southern federal region, a move Framing the State in Times of Transition 579

even the Kurds declared to be surprising.94 away from the negotiating table and reverted Anecdotal evidence suggests also that the to a strategy hinging on veiled and unveiled government of Iran was channeling finan- threats of nonparticipation, support for the cial and in-kind support to bolster SCIRI’s armed insurgency, and opposition to the ref- position. erendum. Constructive bargaining was fin- The Sunni Arab negotiators, though not ished almost before it began. without institutional affiliation and sup- port, lacked the ability to rally constituents and resources around a coherent constitu- Lost Opportunities for International Mediation tional strategy. Iraq’s Arab neighbors had The compressed time frame also under- had little practical experience with consti- mined the ability of the United Nations and tutional matters and were of little help. At independent foreign constitutional experts least until August, there was no clear Sunni to mediate among the parties to the nego- Arab constitutional position at all beyond an tiations and to help foster a realistic Sunni outright rejection of the offered document. Arab agenda. The constitutional support Again, Sunni Arab competence, negotiating team of the United Nations Assistance Mis- mandates, and ability to organize the con- sion in Iraq (UNAMI), led by South Af- stituency could have coalesced with adequate rican lawyer Nicholas Haysom, arrived in time, but time was the resource least available Baghdad in May 2005 to begin the task of to them. supporting the committee.96 UN headquar- The capacity imbalance further isolated ters had been slow in starting to discharge and radicalized Sunni Arab negotiators; its constitution-making mandate under Se- without an institutional means of developing curity Council Resolution 1546, waiting to a considered constitutional position, Sunni formalize its role with the transitional Iraqi Arab negotiators resorted to emotional, re- government and taking time to assemble its jectionist postures. The vehicle of the com- constitutional team. As in East Timor and mittee had perhaps been crucial in holding Afghanistan, the United Nations in Iraq suf- open the possibility of a rational Sunni en- fered from the lack of a ready roster of experts gagement with the principles, and the mer- for rapid deployment to the field in support © Copyrightits, of federalism. Definitive by Sunni theArab de- Endowmentof post-conflict constitution making. of nunciation of regional federalism of the sort The Iraqi government did not issue a for- that the Kurds and SCIRI proposed came mal invitation to the United Nations to help theafter, Unitednot before, the committee States dissolution Institutewith the constitution—required of Peace under the on August 8. As the July and August ad hoc terms of Resolution 1546—until early June discussions progressed, it became increas- 2005. Further, committee chairman Sheikh ingly commonplace for Iraqi leaders to iden- Hamoudi was clearly skeptical of the value tify themselves and act according to ethnic and propriety of any international involve- and sectarian politics. The Sunni Arab par- ment, however enlightened and unobtrusive, ticipants, who typically (and misleadingly) in the Iraq constitution-making process. Be- saw themselves as simple nationalists,95 were fore this invitation was issued, Haysom, a not well versed in these practices and did not veteran of the South African constitutional succeed in pressing a coherent Sunni Arab negotiations, worked behind the scenes to constitutional position. As with any nego- help the committee incorporate Sunni Arabs tiation, all parties were hurt by the relative as members and offered assistance on com- lack of competence of one side. Sunni Arab munity outreach. He developed a consensus negotiators, in chaotic retreat, quickly moved model of decision making that would avoid 580 Jonathan Morrow

the question of whether Sunni Arab ap- commanded the support of the Sunni repre- pointees would have full voting rights. After sentatives, more than any other model, the the invitation was reluctantly issued to the Spanish constitution provided the concep- United Nations, Haysom worked with the tual basis for the gradual process of creating committee in designing the arrangement of new federal regions negotiated in the final thematic and technical subcommittees. On Iraq text. the substance, he explained to the commit- The colloquies with Sunni Arabs were tee a number of comparative federal models broken, however, when the committee dis- that might be sufficiently flexible to allow solved in August. Though Haysom had quite for the addition of future federal units and properly formalized a role for UNAMI in balance regional and national interests in dealing with the committee, as of August 8 natural resources. A paper he circulated on and the committee’s de facto dissolution, the August 10, “A Framework for Decentralised UNAMI role became unclear and informal. Government in Iraq,” set out a scheme of Haysom and other UN officials were some- exclusive federal powers, a mechanism for times called on to speak to party leaders and the creation of new federal units, and joint perform secretariat functions to the Leader- federal-regional oil management. This paper ship Council. The UN officials worked- es would have carved out a clear, viable space for pecially hard with Saleh Mutlaq of the Na- a central Iraqi government and thus would tional Dialogue Council, who had emerged have been at least minimally sellable to Sunni as the most prominent, if not most reason- Arabs. Kurdish and Shiite negotiators imme- able, Sunni Arab negotiator, to reconcile his diately accepted the paper, but the U.S. em- views with those of the Kurdish and Shia bassy rejected it as unsuitable on the grounds leadership. By this stage, however, there was that it did not centralize petroleum power in no longer a negotiating table to which the Baghdad. The United Nations, in a move that United Nations had a standing invitation. it may now regret, withdrew the paper.97 The UN position was considerably weak- Foreign experts brought to Iraq by the ened, especially by U.S. intervention in the United Nations and USIP, including con- negotiations. The UN role with respect to stitutionalism expert Professor Yash Ghai, the Leadership Council was never clarified ©had alsoCopyright made good early progress, by working the or assured.Endowment of directly with Sheikh Hamoudi beginning in early June. With the sheikh’s encourage- ment,the they United gave particular attention States to the Increased Institute U.S. Visibility of Peace Sunni Arab committee members, spending The compressed timetable allowed, and- in much time illustrating the value of federal- evitably required, a much heavier and more ism in multiethnic states. Professor Ghai visible involvement of U.S. officials in the referred extensively to comparative constitu- negotiations than would otherwise have tional models, explaining that federalism, far been the case. August 15 was, after all, their from precipitating the breakup of the state, deadline. The fingerprints of a foreign power in fact might hold Iraq together. “Iraq does in something so uniquely sovereign as the not face a choice between a unitary or fed- writing of a constitution is probably always eral/autonomous system,” he advised, “but regrettable, and not least in the heart of between federalism/autonomy and bitter a Sunni Arab–dominated Middle East, in civil war (and ultimately no Iraq).”98 During which national identity is almost by defini- this time, committee members studied the tion anticolonial. Even moderate Sunni Arab Spanish constitution closely. Though it never nationalists would frequently express the fear Framing the State in Times of Transition 581

that the Iraq constitution would be written Aziz Al-Hakim on August 25. The Ameri- in Washington, DC, and, as one Baghdad can press and the Baghdad-based Al Sabah University political science professor put it, newspaper reported this telephone call,101 only half-joking, “dropped from a helicop- raising the U.S. profile in Iraq to a point that ter onto Baghdad.”99 Prior to August 8, the might be seen to confirm Sunni Arab suspi- U.S. embassy had kept some distance from cions that the constitution would be a U.S. or, the committee, referring to the need for the worse, an Iranian product, as the president’s Iraqi constitution to be settled with Iraqi, not call resulted in no observable softening of the American, solutions. It was apparently not SCIRI position. Finally, Ambassador Kha­ possible, however, to maintain this distance lilzad took the unusual step of attending the and at the same time to insist, as a matter of national assembly’s meeting on August 15, at U.S. policy, that the August 15 deadline be which its leadership moved for a seven-day met. From the time the Leadership Coun- extension, and again on August 22, when a cil was formed, U.S. Ambassador Khalilzad further extension was sought. Domestic Iraqi attended its meetings regularly, and U.S. television channels broadcasted his atten- embassy officials were engaged in less-than- dance in the assembly, predictably attracting subtle efforts to accelerate a final constitution. criticism from Iraqi nationalists and some Several of the early meetings of the Leader- Arab media. ship Council took place at the embassy. By * * * August 10, the United States was expressing strong views on substantive constitutional is- All these factors amplified Sunni Arab sues to reach what they hoped would be fast hostility to the constitution at precisely the compromises that resembled the terms of the moment when Iraq was heading into civil TAL. The United States failed to centralize war, a fact that eclipsed the other casualties the petroleum sector, but its lumbering pres- of the constitutional process. Not one of the ence, with the suit pockets of embassy offi- fifteen Sunni representatives in the consti- cials bulging with drafting suggestions, had tution committee endorsed the constitution, been felt. and Iraq’s Sunni Arabs voted overwhelm- On August 12, in further efforts to accel- ingly against the constitution in the October © Copyrighterate the drafting process, theby U.S. embassythe Endowmentreferendum,102 setting the stage forof a pro- circulated its own draft constitution in En­ longed civil conflict with key constitutional glish. This took the form of a track-changes issues—including federalism—at its heart. theversion United proposing amendments States to the com- Institute of Peace mittee’s draft text and offering extensive U.S. views on the terms of federalism, the judiciary, Final Process Breakdown: Charges human rights protections, de-Baathification, of Illegality and other matters.100 It is grimly ironic that Beyond the impact on the Sunni Arab nego- the U.S. government, having urged an early tiating position, the headlong rush to August Shia-Kurd deal on federalism to the exclu- 15 led to grounds for worse criticism still, sion of Sunni Arabs, expended a great deal as the assembly overshot the deadline but of strenuous and ultimately futile effort in chose to ignore the TAL provisions dealing the final days of negotiations urging a speedy with this eventuality. It was predictable from settlement of outstanding issues by pressing the outset of the process that even with the the Shia parties to accommodate Sunni Arab scrapping of the committee, the August 15 concerns. This effort included a telephone call deadline was not likely to be met, given the from President Bush to SCIRI leader Abdul ambitious goals, the complex and conten- 582 Jonathan Morrow

tious political environment, and the delayed (G). The Leadership Council was clearly un- start. Not surprisingly, then, the unrealistic willing to submit a series of rolling amend- decision on August 1 not to extend the time- ments of the TAL deadline to the assembly, table beyond August 15 using TAL Article in circumstances where the negotiating text 61(F) led to a series of ad hoc assembly deci- of the constitution was being withheld even sions after the deadline was missed. This ex- from assembly members. The Iraqi consti- posed the assembly to reasonable accusations tutional process was remarkable for the way that it was operating illegally. Sections 61(E) in which assembly members, though legally and (G) of the TAL treated the eventuality charged with responsibility for writing the of a missed August 15 deadline in the same draft, were sidelined. Rank and file national way as a failed referendum. In both cases, the assembly members had no access to consti- TAL prescribed that “the National Assem- tutional drafts from August 8 to August 22, bly shall be dissolved. Elections for a new and the assembly leadership denied mem- National Assembly shall be held no later bers’ requests to address constitutional issues than 15 December 2005.” Had the assem- on the floor.106 bly behaved lawfully, the argument goes, it Criticisms from the Sunni Arab commu- should have automatically dissolved, leaving nity and elsewhere stating that the assem- the government to plan for new elections. bly acted contrary to the interim constitu- The precise nature of the assembly’s pro- tion continued to be aired after August 28, ceedings on the evening of August 15 are strengthening claims that the assembly and unclear, though it seems arguable that the the document it later produced lacked le- assembly, by a show of hands that exceeded gitimacy.107 Worse, the version of the draft the necessary 75 percent majority, effectively constitution that the assembly apparently en- amended the TAL to change the deadline dorsed on August 28 was later changed in ne- to August 22. In doing so, it seems that the gotiations before the United Nations printed assembly acted lawfully, albeit in a way that and distributed five million copies through- the TAL drafters may have thought eccen- out Iraq ahead of the referendum108; worse tric. It is less clear, however, that the speaker’s still, the distributed version was changed August 22 announcement allowing the as- again, right up to October 12,109 without for- ©sembly Copyright three additional days,103 or byan August the mal publicEndowment notification. In short, the assemof- 25 press conference purporting to grant the bly and the public were left in the dark, even assembly still more time,104 conformed to ei- up to the point of the referendum, as to the therthe the letter United or the spirit of theStates TAL. The status Institute and contents of the ofconstitution. Peace It is reading and adoption of the constitution by likely, of course, that had the United States the assembly did not take place until August allowed the assembly to adopt a more real- 28.105 For its part, the U.S. embassy had al- istic deadline—a deadline that the assem- ways been somewhat vague as to the legal bly could reasonably meet—the constitution consequences of a failure to meet the August would not be exposed to claims of illegality 15 deadline, being unwilling to discuss pub- and illegitimacy. licly the probable scenario that the deadline would not be met. Regardless, after August 15, the assembly did not formally amend the Collateral Damage: Exclusion of Civil Society TAL deadline, and after August 1, formal Sunni politics and the legality of the final amendment of the TAL deadline was the document were not the only casualties of only legal mechanism by which to avoid the Iraq’s constitutional process. Other casualties mandatory provisions of Article 61(E) and must be recorded if only because they con- Framing the State in Times of Transition 583

firm how far the Iraq constitutional process communities on the value of constitutional- was from the ideal of new constitutionalism. ism and the separation between religious The breakdown of the process worked against institutions and the state as well as bring the interests of women, ethnic and religious consolidated civil-society views to the com- minorities, and liberal and centrist political mittee. Both the Iraq Foundation for Devel- formations. From the time of the occupation, opment and Democracy and the Thaqalayn the continued rise of sectarian and ethnic Research Institute were, in the end, able to political parties fragmented and marginal- play a modest role in engaging the commit- ized these groups. It is thus doubtful whether tee. Neither organization, however, realized any constitutional process, however inclusive, its goal of creating the institutions necessary would have delivered to them the constitu- to strengthen civil society’s influence on the tional recognition they sought, such as strong draft. As the time-pressured Kurdish nego- statements of equality and human rights pro- tiators quickly withdrew their commitment tections. Shia Muslim religious conservatives, to federal institutions in reaction to Sunni clearly in the ascendancy by the time of the Arab centrism, the major axis of progressive constitution-making process, contested those secularism in northern and central Iraq was objectives at every step. Nevertheless, small crippled: Kurds were no longer prepared to and marginalized segments of Iraqi society advocate humanitarian principles throughout had, by August 2005, hardly had the chance Iraq, contenting themselves with consolidat- to group together under strong civil-society ing the Kurdistan human rights regime.110 institutions to press their claims. Both Ghassan Al-Atiyyah and Sheikh Fateh Some of the most promising initiatives in al-Ghitta pointed to the lack of time as the the postelection period came from nonpar- primary reason for civil-society failure.111 The tisan leaders who wanted to form umbrella effect of this failure was probably not trivial, organizations to represent what remained of as both civil-society organizations were well Iraqi civil society in constitutional discus- positioned to bypass sectarian lines and, in sions. From a centrist, relatively secular per- particular, cultivate serious discussions in the spective, Dr. Ghassan Al-Atiyyah of the Iraq Sunni Arab heartland about ways in which Foundation for Development and Democ- federalism might work to everyone’s benefit. © Copyrightracy developed a proposal for by an independent the EndowmentThe truncated time frame also of adversely constitution commission (ICC). The ICC’s affected women’s groups in their efforts to stated purpose was to work alongside the of- reinstate the constitutional authority of a theficial United constitution committee States and bombard it Instituterelatively secular 1959 of Iraqi Peacelaw on personal with civil-society constitutional views, under status. At meetings of such groups in late July, the oversight of a board composed of senior many participants identified an unmet need political party members. The ICC member- for a greater level of coordination if they were ship would consist of a large number of Iraqi to successfully represent women’s views to non-governmental organizations (NGOs) the committee. One proposed solution dis- that were active in canvassing popular views cussed at the meetings involved the creation on the constitution through 2005. of an Iraqi women’s coordination committee. Similarly, the Thaqalayn Research Insti- Again, it was clear that lack of time was the tute, an independent Shia religious NGO, major constraint. Hanaa Edwar, leader of one started up a civil constitutional forum of very active women’s group, the Iraqi Women’s NGOs under the leadership of Dr. Sallama Network, met with the constitution commit- al-Khafaji and Sheikh Fateh al-Ghitta. The tee briefly in late July but immediately- ex forum was designed to educate religious Shia pressed her anxiety that women had had no 584 Jonathan Morrow

chance to interact with the committee and States and the United Nations clearly wel- had generally been marginalized from any comed this role. The UN special representa- substantive discussion on the constitutional tive, Ashraf Ghazi, defined his own role as text.112 She later resorted to a series of public protecting human and minority rights in the demonstrations in Baghdad. constitution.The press releases he issued in The committee composition may have rep- August reveal a series of meetings with Iraqi resented a way of partially correcting the supplicants looking for UN help when ap- lack of minority and women’s participation. parently none was available elsewhere.113 The Kurdish and Shia blocs had taken some It is far from clear that the adopted roles care to ensure that women were present on of the United States and UNAMI as human the committee, with a total of nine mem- rights lobbyists were successful. There is no bers, as well as representatives of the Assyr- doubt that some of the Iraqi minority groups ian, Shabak, and Yazidi communities. One of found their meetings with the U.S. embassy the committee members, Hunain Al-Qaddo, and United Nations to be useful, if only to was also serving as chairman of the Council determine the status of the latest drafts of the of Iraqi Minorities, a body formally estab- constitution. By August, it became very diffi- lished on July 2, 2005, by eight ethnic minor- cult even for participants in the negotiations ity groups to advocate for their concerns in to follow the drafting work; at times, two or the constitutional discussions. However, the even three different drafts were being circu- demise of the committee on August 8 dra- lated by different negotiators as the “latest matically reduced the ability of these groups draft.” Competing “authoritative” texts were to participate in negotiations. The post– variously claimed by Dr. Hajim Al-Hassani, August 8 ad hoc Leadership Council meetings the speaker of the assembly; Sheikh Humam included no women and no non-Kurdish mi- Hamoudi; the U.S. embassy; and the United norities. Centrist party representatives, when Nations. Although on two occasions cer- they attended, played a minor role, having tain drafts were leaked to the Iraqi press,114 moved closer to Sunni Arab skepticism. As no drafts were officially released to the Iraqi a result, the constitutional provisions that public for comment. Very few, if any, were these groups were seeking in the text were released to members of the committee or to ©frequently Copyright removed from the committeeby the the nationalEndowment assembly. of draft, diluted, or modified in ways that bore The absence of drafting and consulta- little relationship to the views of the groups tion protocols made it extremely difficult for concerned.the United Statesnonexpert Institute Iraqis to follow of the process.Peace This The removal of the drafting responsibil- background of confusion and the desire for ity from the committee resulted in smaller patronage by smaller Iraqi interests led, in groups, including Iraq’s ethnic and religious turn, to the U.S. embassy gaining still greater minorities, turning immediately to interna- publicly visible involvement in Iraqi consti- tional institutions for lobbying support and tutional politics. The embassy also became patronage. Previously they had been able to the most obvious agent for a range of non- access Iraqi members of the committee di- Iraqi advocacy institutions, including the rectly. Hoping to influence the draft after U.S. Commission for International Religious August 8, these groups had an incentive to Freedom, Freedom House, and various U.S.- seek the backing of the U.S. embassy, and to based Iraqi expatriate and women’s groups.115 a lesser extent the United Nations, as there Regardless of the value of these efforts to were no longer accessible or sympathetic improve the constitution, the time pressure Iraqis close to the drafting action. The United increased the likelihood that Iraqis would see Framing the State in Times of Transition 585

foreigners as dominating their constitutional As a result, it worked in an ad hoc fashion process, minimizing the popular legitimacy out of a cramped space in the International of the text. Zone’s convention center through late July. Though the United Nations, NDI, and USIP each provided practical support to the unit, Losing the Public including funding and staffing, several weeks If relatively well-organized and well-con- were lost recruiting the Iraqi staff. In late July, nected women’s and minority groups found the outreach unit issued a one-page constitu- it difficult to interact with the constitutional tional questionnaire, containing six questions drafters, these difficulties were much greater designed to be disseminated throughout the for ordinary Iraqi citizens. Every meeting country and returned for entry into a com- of the committee, the national assembly, and puter database.118 The completed question- the Leadership Council took place behind naires could be placed in public submission the blast walls, barbed wire, and gun turrets boxes or emailed to a Yahoo address of Baghdad’s International Zone, to which ([email protected]). By the end of July, Iraqi citizens could gain entry only after when USIP officers visited the newly estab- time-consuming and dangerous queuing lished outreach unit offices in downtown and multiple body searches. Phone lines and Baghdad, a staff of fifty was working around Internet connections throughout the coun- the clock in precarious security conditions to try were either bad or nonexistent. The op- enter piles of public submissions into a com- portunity for Iraqis to communicate, either puterized database and prepare a report to formally or informally, with their constituent the committee. representatives was practically nil. The prog- Despite the professionalism and bravery ress of the constitution-making process was of the outreach unit staff, the shortcom- covered extensively in Iraqi media, and there ings of the process were striking. No writ- were indications that the Iraqi public was ten submissions reached the constitution seized with the subject. However, and not- committee before its demise on August 8. In withstanding the efforts of committee staff, the circumstances, this was perhaps unsur- almost none of the popular debate on con- prising. From its inception in early June, the © Copyrightstitutional matters was formally by presented the to Endowmentoutreach unit had no more than eightof weeks the committee in time for it to influence the to complete its work. The attempt to conduct constitutional text. a serious national constitutional dialogue in the United States Institutesuch a short space of of time Peace was probably unprecedented; the East Timorese and Af- The Outreach Unit: A Missed Opportunity ghan constitutional processes, widely regarded In early June, under the management of as overly hasty, took around six and fifteen Dr. Adnan Ali, Chairman Sheikh Hamoudi months, respectively. The effort in Iraq was had established a skeleton secretariat for the all the more remarkable, given the poor and committee. The secretariat was to include an deteriorating security situation, not to men- outreach unit, responsible for disseminating tion the nationwide difficulties in delivering constitutional information to the public and basic government services, including power for receiving and analyzing the public re- and water. As there was no period of public sponse.116 However, before June, neither the education on constitutional issues, non-elite United States nor the United Nations had Iraqis had little chance to understand even taken steps to prepare office space or other the simple questionnaire. The outreach unit resources for the committee secretariat.117 had no clear ability to receive substantial 586 Jonathan Morrow

input from the Sunni Arab or even Kurd- received reports from the outreach unit.120 ish regions of Iraq. By July 28, the outreach This was hardly surprising given the time unit had received only 20,300 submissions. constraints. As a result, there was little or By August 10—after the committee was ef- no chance for the views of the public, as ex- fectively disbanded—the outreach unit had pressed to the committee via the unit, to be received 126,000 submissions, but none from taken into account in the preparation of the Kurdistan or the Sunni Arab regions. As of constitution. By August 13, a mature negoti- August 15, it had received around 150,000 ating draft had existed for some time with no submissions, of which only around 20,000 will within the political blocs to reopen set- were from the Kurdistan Region and only tled agreements within that draft. In short, around 10,000 from Sunni Arab areas (in- any effort by an Iraqi citizen to communicate deed, all 10,000 were from Fallujah). This was in writing to the committee was futile and a politically volatile imbalance that the out- had no effect on the draft constitution what- reach unit was ultimately unable to correct. soever. Later statements from the commit- The outreach unit staff was drawn mainly tee secretariat stated that they had received from religious Shia social networks, and the more than 400,000 submissions, but none networks put in place to receive submissions of these reached the committee itself by the were biased toward Shia areas of Baghdad deadline; that fact alone suggests that even and other cities. It is unclear whether there a modest deadline extension to allow the were any Sunni Arabs on the unit staff, committee to digest the weight of the sub- though in early August, the unit attempted to missions would have offered a tremendous recruit some Iraqis from smaller ethnic and opportunity to interact with at least large religious minorities. The unit also distributed parts of the Iraqi public, including Sunni Ar- boxes in government buildings in Baghdad abs. But this, of course, did not happen; the to allow citizens to submit completed ques- 400,000 submissions were wasted.121 In very tionnaires and written submissions for later precise terms, the national assembly, under collection; however, the distribution of these tremendous pressure, failed to meet the obli- boxes was uneven at best.119 Moreover, there gation imposed by Article 60 of the TAL to was no ability to enter nonquestionnaire “receiv[e] proposals from the citizens of Iraq ©submissions—that Copyright is, open-ended by submis the- as it Endowmentwrites the constitution.”122 of sions—into the database, obviously limit- ing the range of views that the public could expressthe on Unitedconstitutional issues. States In addition, Conclusion Institute of Peace the results of the extensive constitutional The pressure-cooker approach that the awareness programs run throughout Iraq by United States foisted on Iraq’s constitution- international organizations, including NDI making process might conceivably have been and IRI—again, largely in the form of ques- effective if the central problem was that Iraqi tionnaires—were presented too late for the parliamentarians were simply being slow in results to affect the draft constitution, if they moving to consolidate their Iraqi identity in were presented at all. constitutional terms, though even in those Most important, perhaps, the outreach circumstances, the U.S. haste would have unit could not circulate a report to the com- been unwise and, probably, unethical.123 The mittee members until August 13, after the problem, however, was something much more committee had already been sidelined. Inter- profound: No strong Iraqi identity existed at views conducted with committee members all, and hasty constitution drafting prevented in early August confirmed that they had not a clear recognition of this fact.124 Kurds had Framing the State in Times of Transition 587

never adopted an Iraqi identity in their his- of a possible delegation of powers to the cen- tory. Sunni and Shia Arabs, though they ter. The three major negotiating blocs—Shia might have each expressed some form of Iraqi Arab, Kurd, and Sunni Arab—derived their nationalism, were talking at cross purposes. authority (whether they would have admitted Sunnis sought a centralized, secular Iraq un- it or not) from de facto regional interests, and der Sunni control that might be purged of the power of any central government during Saddamism, but otherwise unchanged; those the negotiating phase was marginal at best. Shiites who rejected federalism (includ- No faction, not even the Sunni Arabs, saw ing the party of Moqtada Al Sadr) sought any tactical reason to delegate power to the a new religious Iraq, over which they, as the Baghdad government of the day, or even majority, held sway. This clash of competing to commit wholeheartedly to constitutional nationalisms—between those few Sunni and negotiations. Any faction could walk out at Shia Arabs who were nationalists—spurred any time. And the Sunni Arab walkout—the the civil war that raged most strongly in 2006 worst of the possible outcomes—not only and 2007 and has surely not yet run its course. accelerated the creation of Kurdish and Shi- The regionalist camps within the Shiite and ite ministates (probably inevitable) but also Kurdish parties were relatively uninterested guaranteed a durable anger among Iraq’s in battling for Baghdad, a capital that could Sunni Arabs that would continue to feed the not govern itself, much less the whole of Iraq, insurgency (nothing short of disastrous). The and were much more capable of reaching absence of the Sunni negotiators from the consensus. The superficial problem of Sunni happy committee press conference of August Arab exclusion masked the more fundamen- 29, announcing the new draft, was well pub- tal fact that Sunni Arabs could not, in the licized and ominous.128 summer of 2005, reconcile themselves to a One can only assume that the U.S. govern- federal Iraq: Policy that was directed at mak- ment missed this fact. No amount of ex post ing Sunni Arabs part of the central govern- facto fiddling by Ambassador Khalilzad could ment should have instead encouraged them undo the damage.129 Some eleventh-hour ne- to regionalize.125 The tragedy is that there was gotiations in September 2005 resulted in mi- no time for Sunni regionalists to emerge. nor adjustments to the final text adopted by © CopyrightThe distance between expectations by the and re- Endowmentthe national assembly before submitting of the ality need not have been so great. None of text to referendum. Those changes, designed these political realities in Iraq were especially to woo the Sunni Arab voters, included lan- thedifficult United for the U.S. States government to- iden Instituteguage stating that Iraqof is “aPeace founding and tify, and they were indeed frequently iden- active member of the Arab League,” mod- tified by informed U.S. commentators.126 It erating the language denigrating the Baath should have been clear from the outset that party; confirming the “unity” of Iraq; and Iraqi constitution making would require a adjusting provisions relating to international complex three-way treaty-like negotiation covenants and water resources. Immediately in circumstances where nothing could be before the October referendum, yet another taken for granted—certainly not a residual change was introduced to accommodate the shared Iraqi identity. Conventional wisdom Sunni Arab position, promising a process among U.S. policymakers presented Iraq of “constitutional amendment” that would as a centralized state undergoing a form of give the Sunni Arabs a theoretical chance to decentralization,127 when the reality was al- roll back Iraqi federalism if the constitution most diametrically opposite. Regionally based was approved in the referendum.130 How- powers were, in effect, negotiating the terms ever, none of these efforts bore fruit: Sunni 588 Jonathan Morrow

Arabs almost universally opposed the con- the Iraqi constitution was created was un- stitution in the referendum, the constitution acceptably poor. Though Iraq already was a was passed,131 and the civil war raged on.132 chronically fragmented society, the rushed Kurdistan political offices in the Green Zone constitutional process amplified these fis- were hit by Katyusha rockets in late August, sures and squandered an opportunity to nar- and a rise in anti-Shiite sectarian violence row them. Something that might have been culminated in the demolition of the Golden organic looked very American and artificial. Mosque in Samarra, triggering a massive in- The prospect of a Sunni federalist or even crease in sectarian violence. Four years later, regionalist political bloc emerging in 2005 by October 2009, no agreement had been was reduced to zero. Efforts by some in the reached on constitutional amendment, and United States to pretend that the 2005 pro- the prospect of any substantive amendment, cess was successful should be seen, at best, though it may be hoped for if only to secure as worthless.136 Iraq in this sense marks a a weak form of viability for the Iraq state,133 certain high point of neglect, and even cyni- is uncertain at best. By contrast, the Kurdis- cism, regarding the value of serious constitu- tan and Shia parties pushed through legis- tionalism. The international community and lation in October 2006—during yet another the United States in particular promised— Sunni Arab boycott of Parliament—for the and required by law—if not an organic re- creation of a southern “Shiastan” that seems, birth of the nation through constitutional- sooner or later, to be inevitable. Efforts by ism, then at the very least a consensus-based, current prime minister Nuri Al-Maliki to deliberative, treaty-like modus vivendi. For a centralize power have been predictably scle- moment, constitutionalism may have had a rotic and are further alienating Kurdistan chance, more modestly, to produce a Sunni and Basra from Baghdad. Arab negotiating position. Instead, the in- In a grim irony, the constitution as a ternational community delivered to Iraq, and substantive document is a fairly accurate Iraq’s leaders acquiesced in, a one-month representation of the views of most Iraqis charade from which not only fragmentation, regarding the fate of the Iraqi state. The but also civil war, was virtually guaranteed. constitution represents probably the only It may be that over time, Iraq’s Sunni Arabs ©workable Copyright solution to competing interestsby theof will learnEndowment to live within Iraq’s new regional of- Arab nationalism, Kurdish nationalism, and ized federal structure,137 but they will do so Shia Islamism. Those critics of the constitu- despite Iraq’s constitutional process. tionthe who blameUnited the text itself Statesfor the poor Institute of Peace governance in Iraq exaggerate the likelihood and desirability of a regionalized, heteroge- Notes neous Iraq being willing and able to resur- 1. Portions of this chapter were originally rect a strong central government.134 Those published in two United States Institute of Peace reports by this author: Jonathan Morrow, “Iraq’s same critics also mistake the strength of re- Constitutional Process II: An Opportunity Lost,” gional entities in the Iraq constitution as a USIP Special Report 155 (Washington, D.C.: deficiency in drafting—an unfortunate am- USIP, 2005), available at www.usip.org/pubs/special biguity—rather than as a fairly unambigu- ­reports/sr155.html (accessed on April 19, 2009); ous and deliberate dismantling of an exces- and Jonathan Morrow, “Weak Viability: The Iraqi sively powerful central state.135 As a model Federal State and the Constitution Amendment Process,” USIP Special Report 168 (Washington, for a loose confederation, the constitution is D.C.: USIP, 2006), available at www.usip.org/pubs/ adequate enough. However, this hardly ob- specialreports/sr168.html (accessed on April 19, scures the fact that the procedure by which 2009). Framing the State in Times of Transition 589

2. In August 2005, the month the bulk of Modern History of Iraq (Boulder, CO: Westview the constitution was written, there were 70 attacks Press, 2004). per day by “insurgents” throughout Iraq. There were 10. See, e.g., Larry Diamond, Squandered Vic- 282 Iraqi military and police killed in that month, tory: The American Occupation and the Bungled Effort between 414 and 2,475 Iraqi civilians killed, and 81 to Bring Democracy to Iraq (New York: Henry Holt members of the U.S. military killed in hostile in- and Company, 2005), p. 49; Noah Feldman, What cidents. There were 27 multiple fatality bombings, We Owe Iraq: War and the Ethics of Nation Building 23 kidnappings of non-Iraqis, and 3,000 insurgents (Princeton, NJ, and Oxford: Princeton University detained or killed: see Iraq Index, Brookings In- Press, 2004). stitution, September 26, 2005, available at www. 11. The committee’s October 2003 report to brookings.edu/fp/saban/iraq/index20050926.pdf the interim governing council presented no recom- (accessed on April 19, 2009). mendations. A New York Times article had earlier 3. Iraq’s other major communities include announced the engagement of Noah Feldman, a Shia Arabs (approximately 60 percent of the popu- New York University Law School professor and lation) and Kurds (approximately 20 percent of the expert on Arab world constitutions, with the Iraq population). There are no accurate figures available, constitution. Jennifer Lee, “American Will Advise but these are the commonly accepted approximate Iraqis on Writing New Constitution,” The New York numbers. This conventional breakdown of Iraq into Times, May 11, 2003. three groups is an oversimplification of the many 12. The approved English translation of the ethnic, religious, and political identities within June edict rejected the appointment of constitu- Iraq’s borders, but constitutional negotiations were tion drafters and called for a “general election” to characterized by this tripartite arrangement. choose representatives to a “foundational consti- 4. In the predominantly­ Sunni governorates tution preparation assembly.” For the full text, see of Anbar and Salahaddin, more than 96 and 81 www.juancole.com/2003_07_01_juanricole_ percent of voters, respectively, rejected the consti- archive.html (accessed on April 19, 2009) or Feld- tution. See Independent Electoral Commission of man, What We Owe Iraq, p. 146. For an analysis of Iraq, “Certification of the Constitutional Referen- the significance of Ayatollah Sistani’s fatwas, see dum Final Results,” October 25, 2005, available at Reidar Visser, “Sistani, the United States and Poli- www.ieciraq.org/English/Frameset_english.htm tics in Iraq: From Quietism to Machiavellianism?” (accessed on April 19, 2009). Norwegian Institute of International Affairs, 2006, 5. More than 78 percent voted yes. Inde- available at http://historiae.org/documents/Sistani. pendent Electoral Commission of Iraq, “Cer­ pdf (accessed on April 19, 2009). At this point, the tification of the Constitutional Referendum Final only governance issue in which Ayatollah Sistani Results.” expressed interest was constitution making. © Copyright6. Article 110 of the constitution. by the I note Endowment13. See www.cpa-iraq.org/government/TAL. of Nathan Brown’s argument that the federal govern- html (accessed on April 19, 2009). The TAL was ment’s exclusive power in relation to wizarat al issued in the name of the Iraqi people and formally themaliyya United (usually translated asStates finance) is, in fact, a Instituteapproved by a group of ofIraqi leaders Peace known as the reference to taxation. However, this is a minority Iraqi Governing Council. After the transfer of sov- view. ereignty in June 2004 and the dissolution of the 7. Article 112 of the constitution. For an Governing Council, the TAL was published in analysis of these critical provisions, see Brendan Iraq’s Official Gazette. However, as Andrew Arato O’Leary, “Federalizing Natural Resources,” in notes, the reality was that the council “had no legal Iraq: Preventing a New Generation of Conflict, ed. or factual independence” from the CPA. Andrew Markus E. Bouillon, David M. Malone, and Ben Arato, “From Interim to Permanent Constitution in Rowswell (New York: International Peace Acad- Iraq?” paper dated October 2005, p. 2 (on file with emy, 2007). the author). 8. Article 115 of the constitution. 14. The full name for this instrument is the 9. Phebe Marr narrates Iraq’s twentieth- Law of Administration for the State of Iraq for the century history as a failure of constitutionalism, in Transitional Period. particular the ineffectiveness of fundamental law 15. See, e.g., Ghassan al-Atiyyah, “Memoran- and sporadic erasure of the distinction between ex- dum to the Supreme Preparatory Committee for the ecutive and legislative authority: Phebe Marr, The National Conference,” July 14, 2004 (on file with the 590 Jonathan Morrow

author). Though the key provisions of the TAL were in 2004, including “Constitution-Making, Peace- the subject of negotiation among the Iraqi political Building and National Reconciliation: Lessons factions, the TAL was orchestrated by the U.S. gov- Learned from the Constitution-Making Processes ernment, drafted in English, and is clearly the prod- of Post-Conflict Countries” and “Constitution- uct of Western-educated lawyers. One observer of Making in Iraq: Framework and Options for an the TAL process, a former adviser to the Kurdistan Effective, Participatory, Inclusive and Transparent regional government, has stated that “all delibera- Process” (copies on file with the author). tions on the law were done in secret and probably 23. Statement by Ambassador Bremer before fewer than one hundred Iraqis saw a copy of the the House Armed Services Committee, U.S. House [interim] constitution before it was promulgated. To of Representatives, September 25, 2003. It was, no- write a major law in any democracy—much less a tably, Bremer’s primary (and unrealized) goal that constitution—without public discussion should be he personally put in place a permanent constitu- unthinkable.” Peter Galbraith, “How to Get Out of tion for Iraq—though not one that would reflect Iraq,” New York Review of Books, vol. 15, no. 8, May majoritarian Iraqi Islamist views. See generally 13, 2004. Sustained Iraqi engagement with the text L. Paul Bremer III and Malcolm McConnell, My was limited to expatriate lawyers Feisal Istrabadi Year in Iraq (New York: Simon and Schuster, 2006); and Salem Chalabi. See also the comment of Larry and Rajiv Chandrasekaran, Imperial Life in the Em- Diamond, former senior adviser to the Coalition erald City (New York: Knopf, 2006). Provisional Authority in Iraq: “The CPA had long been planning a campaign to sell the TAL to the 24. International Crisis Group, Iraq’s Consti- Iraqi people once it was adopted. A British adver- tutional Challenge, p. 2. tising agency with offices in the Middle East had 25. Author’s conversation with a young Sunni been hired to produce a campaign of emotional and Arab engineer, Baghdad, November 2004. highly symbolic television and newspaper ads. Yet 26. Iraqi Prospect Organisation, Iraqi Consti- inexplicably, this campaign did not begin until sev- tution: Iraqi Thoughts, December 2003, p. 8, available eral weeks after the TAL’s signing.” Larry Diamond, at www.iprospect.org.uk/rep8dec.html (accessed on “What Went Wrong in Iraq,” Foreign Affairs,vol. 83, April 19, 2009). no. 5 (September–October 2004), pp. 34–56. 27. Conversation with the author, Baghdad, 16. See Diamond, Squandered Victory, p. 183 ff. April 2005. Dr. Shahristani spent eleven years im- 17. Transitional Administrative Law, www. prisoned by the Hussein regime, much of it in soli- cpa-iraq.org/government/TAL.html (accessed on tary confinement. At the time of this writing, he is April 19, 2009; emphasis added). the Iraqi minister of oil. 18. The International Crisis Group had noted 28. For an explanation of Iraq’s recent politi- in November 2003 that “the sense that Iraqis have cal history as an example of liberal consociation, see ©no ownership Copyright of the political process and by are blocked the John EndowmentMcGarry and Brendan O’Leary, “Iraq’s Conof- from participation in decisions critical to the future stitution of 2005: Liberal Consociation as Political of their country is profound.” International Crisis Prescription,” International Journal of Constitutional Group,the Iraq’s United Constitutional Challenge, States Middle East Law, Institute vol. 5, no. 4 (2007), pp. 670–98.of Peace Report no. 19, November 13, 2003, p. 26. 29. For an account of that episode, see Saman- 19. Article 61(C). tha Power, “A Problem from Hell”: America and the 20. Because the TAL was adopted neither by Age of Genocide (New York: Basic Books, 2002). the Security Council nor by a sovereign Iraqi gov- 30. See, generally, Brendan O’Leary, John ernment, its legality remains doubtful. McGarry, Khaled Salih, eds., The Future of Kurdi­ 21. United Nations Security Council Resolu- stan in Iraq (Philadelphia: University of Pennsylva- tion 1546, S/RES/1546 (2004), June 8, 2004, para. nia Press, 2005). 7 (emphasis added). 31. Polling centers were set up next to voting 22. The comparative experience was more in- booths. The Kurdistan regional government claimed fluential within the United Nations, which had borne that more than 98 percent of those polled preferred direct responsibility for constitution making in East Iraqi Kurdistan’s independence to its continuation Timor and Afghanistan; this is evident in the papers as part of Iraq. These claims seem plausible, and circulated by Jamal Benomar, former adviser on Iraq Western news outlets reported the strong prefer- to Ambassador Lakhdar Brahimi and senior offi- ence. See, e.g., Ellen Knickmeyer, “Iraqi Kurds Call cial of the United Nations Development Program, for Referendum,” Washington Post, July 23, 2005. Framing the State in Times of Transition 591

32. For two accounts of the Sunni Arab in- pecially the savage massacres in Falluja, categori- surgency, see Amatzia Baram, “Who Are the In- cally preclude sound participation in the political surgents? Iraq’s Sunni Arab Rebels,” USIP Special process under occupation and denial of sovereignty. Report 134 (April 2004), available at www.usip.org/ How can a national dialogue and a political process pubs/specialreports/sr134.html (accessed on April proceed while crimes are being routinely committed 20, 2009); and International Crisis Group, In Their against the people?” Own Words: Reading the Iraqi Insurgency, Middle 40. See, e.g., Michael Howard, “Main Sunni East Report no. 50, February 15, 2006. Party Pulls Out of Election,” The Guardian,Decem - 33. The International Crisis Group in No- ber 28, 2004. vember 2003, aware of the problems earlier than 41. The omission of a special majority for par- most, said that “Iraq’s constitutional process must liamentary approval of the text was probably an begin to move forward, but at a deliberative pace oversight; none of the authors of the TAL have pro- and in a transparent and consultative manner.” Inter- vided a reason for the unusually low threshold. In national Crisis Group, Iraq’s Constitutional Challenge, hindsight, the practical effect of such a mistake was Middle East Report no. 19, November 13, 2003, p. ii. negligible, however, given the three-governorate 34. The only procedural provisions imple- veto provision, which effectively required near una- mented, in the end, were those requiring an elec- nimity of support in the parliamentary factions for tion by January 2005 (art. 30) and the establishment any constitutional text. of a Federal Supreme Court (art. 44). Nor did the 42. In May 2005, the Muslim Scholars As- TAL provide, as Bremer had hoped (see Diamond, sociation began to threaten to invoke the three- Squandered Victory, p. 16), a basis for the permanent governorate veto. See Nancy Youssef, “Iraq Set to constitution. Take Major Step toward Drafting Constitution,” 35. The U.S.-based National Democratic In- Knight Ridder, May 14, 2005. stitute for International Affairs (NDI) found that by 43. Article 61(C) states: “The general refer- April 2005, “almost every participant” in national, endum will be successful and the draft constitution cross-sectarian focus group research “is of the opin- ratified if a majority of the voters in Iraq approve ion that the Iraqi citizens should be involved in the and if two-thirds of the voters in three or more gov- preparation of the constitution.” David M. Dough- ernorates do not reject it.” This provision gave great erty, Iraqi Voices: Public Attitudes and Political Oppor- power to any organized region of Iraq—including tunity in Transition; Findings from Focus Groups with Kurdistan—against an aspiring national govern- Iraqi Men and Women (Conducted April 13–15, 2005), ment. Andrew Arato argues, persuasively, that the National Democratic Institute for Inter­national Af- only “genuine bargaining” on the TAL was between fairs, p. 32, available at www.access­democracy.org/ the Kurdistan regional government and the United library/1921_iq_focusgroups_060105.pdf (accessed States on this and other key provisions: “The im- © CopyrightApril 20, 2009). by the Endowmentmediate reason . . . was that it was these oftwo parties 36. For a contemporary argument in favor of that held at the time something like state power in a province-based electoral system, also citing the ar- Iraq.” Arato, “From Interim to Permanent Consti- thegument United that a provincial system States would have allowed Institutetution in Iraq?” p. 6. of Peace for a delay in polling in the troubled Sunni Arab 44. Article 61(F) of the TAL reads: “If ­nec- provinces, see Larry Diamond, “Getting to Elec- essary, the president of the National Assembly, tions in Iraq,” unpublished paper, November 2004 with the agreement of a majority of the members’ (on file with the author). votes, may certify to the Presidency Council no 37. This model was ultimately adopted for the later than 1 August 2005 that there is a need for ad- December 2005 parliamentary elections in which ditional time to complete the writing of the draft con- fifty-five Sunni Arab legislators were elected. stitution. The Presidency Council shall then extend 38. See, e.g., New York Times, editorial, Janu- the deadline for writing the draft constitution for ary 12, 2005. only six months” (emphasis added). Transitional 39. Alissa Rubin, “46 Groups Will Boycott Admin­istrative Law, available at www.cpa-iraq. Iraq Vote,” New York Times, November 19, 2004. See org/government/TAL.html (accessed on April 20, also “Statement by the Iraqi National Foundation 2009). Congress on the Elections,” November 18, 2004, 45. Diamond notes that the reason for includ- (copy on file with the author): “The illegitimacy of ing the six-month extension in the TAL was be- the occupation and the attacks on Iraqi cities, es- cause “we all worried that even six months might 592 Jonathan Morrow

not be enough for the [constitutional] convention 53. Assembly Speaker Hajim Al-Hassani, to complete its work in a manner that involved the Deputy Speaker Hussein Shahristani, and Com- Iraqi public.” See Squandered Victory, p. 155. mittee Chairman Sheikh Hamoudi each held the 46. Roula Khalaf, “Boycott Groups See Elec- view that civil-society representatives should not be tion as Just ‘Small Step,’” Financial Times, Janu- on the committee. ary 27, 2005. 54. Meghan O’Sullivan traveled to Baghdad 47. International Republican Institute, Survey in the weeks prior to the drafting of the constitution of Public Opinion, April 11–April 20, 2005, available to press Iraqi leaders to meet the initial August 15, at www.iri.org/mena/iraq/pdfs/2005-05-05-Iraq% 2005 deadline. 20Poll%20April%20April.pdf (accessed July 14, 55. Interviews with NBC News and Al Ara- 2009). The press release accompanying the survey biya television in Baghdad, April 13, 2005. results stated: “Iraqis also want all groups to par- 56. See, e.g., “Rice Makes Surprise Visit to ticipate in the constitutional process. More than Iraq: U.S. Secretary of State Urges Leaders to Get 35 percent strongly agree and another 35 percent Constitution Done,” CNN.com, May 16, 2005. generally agree that those who did not or could not 57 On July 26, Secretary Rumsfeld made an participate in the January 30 election have a right to unannounced visit to Baghdad and told reporters, contribute to writing the constitution.” “We don’t want any delays. Now’s the time to get 48. The subcommittees’ themes included ba- on with it.” Eric Schmitt, “Rumsfeld Presses Iraqi sic principles; system of government; federalism Leaders on Constitution and Insurgency,” New York and local government; constitutional guarantees, Times, July 28, 2005. rights, and duties; and transitional and amendment 58. He stated at a press conference at the provisions. White House on April 28, 2005, of then–prime 49. In one early proposal of Deputy Speaker minister of Iraq, Iyad Allawi, “He understands the Hussain Shahristani and Committee Chairman need for a timely write of the constitution.” See Hamoudi, additional Sunni Arab participation was White House press release, April 28, 2005. to be limited to providing subcommittees with ad- 59. This was the standard talking point on the vice. See e.g., National Public Radio (U.S.), Morn- subject for U.S. officials in Baghdad. Robert Ford, ing Edition, interview by Peter Kenyon with Sheikh the head of the U.S. embassy’s political section, at- Humam Hamoudi, May 23, 2005. In another pro- tempted to prevent the U.S. Institute of Peace, an posal, the 55-member committee would be ex- independent federal institution, from even discuss- panded to 101 members. See e.g., “Forty-Six New ing the possibility of an extension of the August 15 Members to Write the Iraqi Constitution,” Al- deadline with Iraqis. Taakhi (Baghdad), May 24, 2005. 60. See, e.g., television interview with Deputy © 50.Copyright A number arrived at so as toby maximize the Secretary Endowment of State Robert Zoellick, conducted of by Sunni participation without exceeding the repre- Sawad Kazum of Al Arabiya, Baghdad, April 13, 2005: “Well, this is a topic that I discussed with sentation of the Kurdistan Alliance representation. the United Statesall Institute the Iraqi officials—Prime of Minister Peace Allawi, the 51. The fifteen additional Sunni Arab mem- President, Prime Minister-designate, the Speaker— bers were accompanied by ten Sunni Arab non- and I get a sense that all of them want to stick to member experts. Of the original fifty-five members the timeframe that Iraqis have set to try to get that of the committee, three were Sunni Arabs who had constitution done by August 15 . . . So, you know, been elected to the national assembly: the deputy constitutions—the U.S. Constitution was drafted in chairman, Dr. Adnan al-Janabi; the former oil less time than that and so right now the Iraqi people minister, Dr. Thamir Abbas Al-Ghadban; and have a start through the TAL.” Abd-al-Rahman Sa’id Husein al-Nu’aimi. The en- 61. Professor Yash Ghai and Mr. Scott Carl­ larged body was notionally renamed a commission son, constitution process experts provided to the (hay’a ’ameh) but was continually referred to in prac- committee by USIP, provided this advice in “Con- tice as “the committee” (lajneh). stitutional Timetable Options with December 2005 52. As distinct from unanimous decision- Parliamentary Elections,” a memorandum dated making, thus permitting, at least in theory, the prin- July 11, 2005 (on file with the author). The memo- ciple of “sufficient consensus” to permit decisions to randum concluded that “to fulfill the TAL public be made over the objections of a small but unspeci- participation mandate, some form of extension is fied number of members. needed” (p. 4). Framing the State in Times of Transition 593

62. Othman was quoted as saying, “If you’re 2005, available at www.carnegieendowment.org/ talking about a consensus, something on which we files/PO19Brown.pdf (accessed on April 20, 2009). all agree, I certainly don’t think it can be done on 70. For a discussion of this phenomenon in time. This is something too important to rush. We the U.S. handling of Iraq policy—including the shouldn’t be driven by America’s domestic agenda.” constitution—see, e.g., Peter Baker and Robin Liz Sly, “Iraqi Constitution Writers Find Time Is Wright, “In Iraq, Bush Pushed for Deadline De- Running Out,” Chicago Tribune, July 26, 2005. mocracy: Timeline Yields Order, Not Peace,” Wash- 63. See also Feryad Rawandozi, “Opinion: ington Post, December 11, 2005. Constitution Deadline Should Have Been Delayed 71. For an account of this drafting period Earlier,” Al-Ittihad, August 17, 2005. Al-Ittihad is from the perspective of two State Department law- the newspaper of the Patriotic Union of Kurdistan. yers then in the U.S. embassy in Baghdad, see Ash- 64. Ambassador Peter Galbraith, interview ley S. Deeks and Matthew D. Burton, “Iraq’s Con- by Jim Lehrer, The Newshour with Jim Lehrer, PBS, stitution: A Drafting History,” Cornell International May 4, 2005: “My sense is that if the constitutional Law Journal, vol. 40, no. 1 (2007), pp. 2–84. process doesn’t work, that Iraq would do well to set it 72. Talabani was leader of the Patriotic Union aside. . . . There are many issues that can be handled of Kurdistan (PUK) and president of Iraq; Bar- practically, but which could make the situation in zani was leader of the Kurdistan Democratic Party Iraq much worse, in fact contribute to the breakup (KDP) and was president of the Kurdistan region. of the country, if they are tried to be resolved in a 73. Most of the Shia elites speak the language constitutional process.” of their coreligionists in Persia, and the Kurds’ na- 65. See, e.g., Hannah Allam and Alaa al tive tongue is an Indo-European language closely Baldawy, “Shiite Cleric to Lead Panel Drafting related to Persian. In the Green Zone in the sum- Iraqi Constitution,” Knight Ridder, May 24, 2005. mer of 2005, it was often noted, wryly, that the 66. See also statements from former presi- Arabic word for constitution—dustour—is actually dent Sheikh Ghazi al-Yawer, Iraqi Al-Sharqiyah a Persian import. But by the time the text reached television, May 2, 2005; and Dr. Bahaa Mayah, ad- the matbagh, the drafting was done in English. viser to Prime Minister Jaafari, in Richard Beeston, 74. Al-Sabah paraphrased the sentiment in “Squabbles as Iraq Prepares to Draw Up a Consti- their headline of August 22, 2005: “US Embassy to tution,” The Times (London), May 14, 2005. Sunni Arabs: ‘This Is an Iraqi Matter, and We Have 67. National Democratic Institute for Inter- Nothing to Do with It.’” national Affairs,Iraqi Voices: Public Attitudes and Po- 75. Sheikh Abd al-Nair al-Janabi, reported litical Opportunity in Transition, Findings from Focus in Baghdad daily newspaper Al-Sabah on August Groups with Iraqi Men and Women (Conducted April 22, 2005. Former Baathist and lead Sunni consti- © Copyright13–25, 2005), available at www.accessdemocracy. by the Endowmenttutional negotiator Salih al-Mutlak was ofalso quoted org/library/1921_iq_focusgroups_060105.pdf (ac- in the same report as saying: “We were not met, and cessed on April 20, 2009), p. 31: “Iraqis are eager for both lists are trying to finish the draft without us. thestability United and want the Constitutional States Committee to InstituteWe contacted the American of EmbassyPeace in order to draft a constitution as quickly as possible. However, get to know the situation, and we were notified that many focus group participants expressed a desire for that was an Iraqi matter and the Embassy had noth- the Committee to take the necessary time to ensure ing to do with it.” the creation of a comprehensive and effective con- 76. The proposal of one senior Kurdish mem- stitution and to sufficiently educate the Iraqi people ber of the constitution committee, Dr. Saedi Bar- on the constitutional process.” zinji, that Kurdish autonomy should be protected in 68. “An Iraqi Constitution,” editorial, New the constitution by a set of international guarantees York Times, August 12, 2005: “It would have been did not find its way into the final draft. That pro- wiser to allow time for compromise and consensus.” posal will likely be proved to have been prescient. See also Charles Krauthammer, “Shelve this Dead- 77. Article 110 of the constitution. line,” Washington Post, July 1, 2005. 78. Article 115 of the constitution. 69. See International Crisis Group, “Iraq: 79. In early June, Shia and Kurdish com- Don’t Rush the Constitution,” Middle East Report mittee members—probably with U.S. embassy en- no. 42, June 8, 2005; Nathan Brown, “Iraq’s Consti- couragement—rejected as too time-consuming a tution Process Plunges Ahead,” Carnegie Endow- proposal to identify “grass roots” Sunni Arab con- ment for International Peace, Policy Outlook, July stitutional drafters through a multiweek regional 594 Jonathan Morrow

caucus. The Iraq Institute of Peace, a nongovern- constitutional entitlement of a share of Iraq’s na- mental interfaith dialogue organization with strong tional oil revenues proportional to their share of the Sunni Arab tribal connections, had tested the idea. national population. As they were the only NGO able to open offices in 85. Author’s conversation with Moamer Al- the Sunni Arab heartland without being attacked, kubesi, director, National Constitutional Society, they convened a number of large Sunni meetings Baghdad, August 2005. Alkubesi, a leading Sunni in May, including a May 2 conference of 800 Sunni Arab lawyer from Fallujah and interlocutor with the Arab leaders, which elected ten representatives and hard-line Association of Muslim Scholars, had early formulated a set of precise constitutional recom- seen the merits of federalism as the solution for mendations—later overlooked. Iraq—including power sharing on oil management 80. The terms of that Kurd-Shia agreement and other sensitive matters—quite apart from Kur- gave to one or more of Iraq’s eighteen provinces the dish aspirations. right to “organize into a region” following a referen- dum in the respective province or provinces. 86. Those same lawyers were trying to- ad dress a major but clearly soluble grievance among 81. Article 61(G) of the TAL provided that “if Sunni Arab elites: that the Kurdish and Shia par- the National Assembly does not complete writing ties overlooked Sunni Arab technical constitutional the draft permanent constitution by 15 August 2005 expertise. The compressed timetable virtually elimi- and does not request extension of the deadline in Article 61(D) above, the provisions of Article 61(E), nated any engagement with Iraqi technical experts above, shall be applied.” Article 61(E)—the provi- of any sect or ethnicity. Iraq’s federal judiciary had sion dealing with the consequences of a failed ref- no opportunity to influence the draft; government erendum—stated that “the National Assembly shall ministries (such as the Ministry of Justice) were in be dissolved. Elections for a new National Assembly the same situation. shall be held no later than 15 December 2005.” 87. Presentation by Leslie L. Campbell, senior 82. There can be little doubt that some Sunni associate and director of Middle East programs, negotiators, including Saleh Mutlaq, were attempt- National Democratic Institute, at U.S. Institute of ing to precipitate this crisis; private comments of Peace, Washington, D.C., October 2005. moderate assembly speaker Hajim Al-Hassani 88. Constitutional Baseline Survey, Conducted (April 2005) suggest that he too was entertaining on Behalf of the Transitional National Assembly, Con- this view. stitution Drafting Committee, copy on file with the 83. Several of the fifteen Sunni Arab members author. If anything, these figures understate the of the committee were accused of being members of degree of Sunni Arab distrust of federalism, as Saddam Hussein’s Baath Party, including Sheikh for security reasons, interviews could not be con- Mijbal Issa (later assassinated) and Haseeb Arif. ducted in the overwhelmingly Sunni Arab Anbar ©See, e.g.,Copyright James Glanz, “Baathists May by Be Joining the governorate. Endowment of Iraq’s Constitution Drafters,” New York Times, July 89. The results of a USIP-convened meeting 1, 2005. Some of the committee members, includ- of Iraq’s Sunni Arab leaders in February 2006 sug- ingthe Saleh Mutlaq, United publicly aligned themselvesStates with gested Institute that, with time, incrementally of morePeace realistic Baathism. positions could have been achieved: see Jonathan 84. Although they do not conceive of them- Morrow, “Weak Viability: The Iraqi Federal State selves as a national minority, Iraq’s Sunni Arabs have and the Constitution Amendment Process,” USIP similar interests to other Iraqi ethnic and sectarian Special Report 168 ( July 2006), available at www. minority groups that are concentrated in particular usip.org/pubs/specialreports/sr168.html (accessed areas and neighborhoods of the country. Far from on April 22, 2009). having a real interest in a strong central govern- ment, they must look to the conventional­ political 90. One Kurdistan member of the commit- methods of preserving minority rights, including tee, Dr. Saedi Barzinji, walked out of the committee some of the minority and regional self-government over issues of regional autonomy. and veto powers that the much-reviled Iraqi consti- 91. On August 6, Massoud Barzani, Kurdi­ tution provides. In particular, perhaps they should stan region president, addressed the Kurdistan par- ensure that Iraq’s Sunni Arab areas, oil-poor at least liament on the negotiations, and Prime Minister for the time being, receive from other regions their Nerchivan Barzani articulated a set of “red lines” Framing the State in Times of Transition 595

in “Why Kurdistan Insists on Kirkuk,” Financial 99. Interview with Dr. Saad Jawad Al-Saati, Times, August 15, 2005. Baghdad, August 2005. 92. Those negotiators included former U.S. 100. See Alissa Rubin, “Envoy Delivers U.S. diplomat Peter Galbraith and University of Mary- Vision for Iraqi Constitution,” Los Angeles Times, land professor Karol Soltan. August 12, 2005. The U.S. version of the constitu- 93. Copy on file with the author. tion removed an article that would have incorpo- 94. Hadi al-Amiri, head of the Badr Brigades, rated international human rights standards into announced to the gathering: “Federalism has to be Iraq domestic law. in all of Iraq. They are trying to prevent the Shi’ites 101. See Ali Al-Basri, “The Telephone Call from enjoying their own federalism. We have to and Its Effect on Influencing the Draft Constitu- persist in forming one region in the south or else tion,” editorial, Iraq 4 All News, August 28, 2005, we will regret it. What have we got from the cen- http://iraq4all.org (“Day after day U.S. interven- tral government except death?” See “Shi’ite Militia tions in the drafting of the Iraqi constitution reveal Calls for State in the South,” Reuters, August 11, themselves.”). 2005. The August 11 declaration by SCIRI had been 102. Shortly after the referendum, an ABC foreshadowed by smaller breakaway movements in News poll conducted in November 2005 found that Basra. See, e.g., Steven Vincent, “In the South, A just 27 percent of people in Sunni Arab areas of Bid to Loosen Baghdad’s Grip,” Christian Science Iraq approved of the constitution, compared with Monitor, June 28, 2005; Edward Wong, “Secular more than 80 percent in mixed, Kurdish, and Shiite ­ Shiites in Iraq Seek Autonomy in Oil-Rich South,” areas. ABC News poll, “Where Things Stand in New York Times, June 30, 2005. Similar regionalist Iraq,” December 12, 2005, available at abcnews.go. initiatives were also made public in the central Iraqi com/images/Politics/1000a1IraqWhereThings cities of Kerbala (Sharq Al-Awsat, June 7, 2005) Stand.pdf (accessed on April 22, 2009). and Najaf (www.nahrain.com/d/news/05/06/16/ 103. See BBC News, “Iraq PM ‘Confident nhr0616e.html; accessed April 22, 2009). of Agreement,’” August 23, 2005, available at news. 95. Nathan Brown observes that the fifteen- bbc.co.uk/1/hi/world/middle_east/4176610.stm member Sunni Arab delegation on the constitution (accessed on April 22, 2009). committee preferred to call themselves “represen- 104. The parliament’s announcement of a tatives of those boycotting the election.” Na- further delay did not set a date for a future session. than Brown, “Iraq’s Constitution Process Plunges Ahead,” Carnegie Endowment for International 105. The adoption of the constitutional text Peace, Policy Outlook, July 2005, p. 7, available at by the assembly took place without a vote. www.carnegieendowment.org/files/PO19Brown. 106. Interview with Dr. Sallama Al-Khafaji, © Copyrightpdf (accessed April 22, 2009). by the Endowmentmember of the national assembly, Baghdad, of August 96. Haysom is a South African who served as 2005. Nelson Mandela’s legal adviser during the South 107. The first such charge was voiced by Sunni theAfrican United constitutional negotiations States and advised on Institutehard-liner Saleh Mutlaq, of who said Peace when the August many other constitutional problems, including those 15 deadline was not met that any subsequent exten- in Sudan, Burundi, East Timor, and Lebanon. sion “wouldn’t be legal. . . . I think they may do it, 97. The goal of this strategy was probably but if they do, we [the Sunnis] will object to it in the questionable; the implementation certainly was. A strongest terms.” Reuters, August 15, 2005. few days after Ambassador Khalilzad did Washing- 108. On September 8, 2005, Nicholas Hay- ton’s bidding by rejecting Haysom’s oil provisions, som of the United Nations stated that “we are new provisions emerged from the Kurdish-Shia ne- awaiting a text certified by the National Assembly.” gotiating table that gave oil powers almost entirely See “UN Holds Presses on Iraq Constitution,” Reu- to the regions. By that stage, Ambassador Kha- ters, September 8, 2005. lilzad had realized that a centralized oil sector was 109. October 12 was the date of an agree- not on the table and consecrated the deal. ment to a schedule of “amendments” recorded in 98. Yash Ghai, Jill Cottrell, and Bereket Se- a letter from Sheikh Humam Hamoudi, “Amend- lassie, “Paper on System of Autonomies in Iraq,” ments to the Constitution,” letter dated October 13, August 6, 2005, copy on file with the author. 2005 (copy on file with the author). 596 Jonathan Morrow

110. Private conversation with Bakhtiar Amin, not clear that the ministerial committee conducted the Kurdish former minister for human rights in many constitutional dialogues. Iraq, May 2007, Erbil. 118. The questions included the following, 111. Private conversations with the author, with multiple-choice options under each question: July 2005, Baghdad. “Which form of government do you prefer?” (op- 112. Private email to the author, November tions including presidential, parliamentary, mixed); 2005. See also Thalif Deen, “Iraqi Women May “What is the most suitable form for the distribution Lose Basic Rights Under the Constitution,” Inter of power in Iraq?” (a range of federalist and uni- Press News Service, July 23, 2005. tary state options); “What is the role of Islam in 113. See, e.g., “Special Representative of the legislation?” (a range of options from Islam as the Secretary-General for Iraq, Mr. Ashraf Qazi, Met only source for legislation to no mention of Islam with Sheikh Harith Al Dhari,” June 29, 2005; “Spe- or religion); “Who owns the natural wealth (such cial Representative of the Secretary-General for as oil, gas, etc.)? The public? What, in your view, is Iraq, Mr. Ashraf Qazi, Met with Representatives the ideal way to distribute it?”; “How can women’s of the Turcoman Front,” July 24, 2005; “Special rights be protected in your view?”; “Which of the Representative of the Secretary-General for Iraq, following issues needs to be mentioned in the con- Mr. Ashraf Qazi, Met the President of the Coun- stitution?” (options include de-Baathification, -in cil of Iraqi Minorities,” August 4, 2005; and “The tegrity commission, special court.) I am grateful to Special Representative of the Secretary-General for Dr. Yasin Al-Jibori for his assistance in translating Iraq Recognizes Significant Public Participation in this and other original documents. the Iraqi Constitution-Making Process,” August 4, 119. USIP staff members in Baghdad, living 2005. All press releases, UN Assistance Mission in in various neighborhoods, were unable over several Iraq, available at www.uniraq.org/newsroom/press weeks to locate a single box. The UNAMI note on releases.asp (accessed on April 22, 2009). July 24, 2005, on the collection of submissions from 114. The Iraqi newspaperAl-Hayat published the boxes, stated that “except for Al Anbar, Salah Ad extracts from the draft on July 25; Al-Sabah pub- Din, Ninevah, At Tameem and Diyala governorates, lished a draft on July 26. It is perhaps remarkable regular collection takes place every couple of days.” that public participation in constitution making has The named governorates are, of course, those with relied so much on leaks. A leaked draft was the be- large Sunni Arab majorities and minorities. ginning of public involvement in Spain in 1978, one 120. Private conversations with Adnan Al- of the most successful constitution-making pro- Janabi and Hunain Al-Qaddo, August 2005, Baghdad. cesses in recent times. See Andrea Bonime-Blanc’s 121. As of December 2006, it was unclear chapter on Spain in this volume. where the records of the constitution commit- 115. For a detailed criticism of this phenom- tee were being stored. The deputy chairman of the ©enon, Copyright see Nathan Brown, “Constitution by Drafting the constitution Endowment review committee, Ayad Al-Samarraie, of Update,” Carnegie Endowment for International stated in a private conversation with the author on Peace, August 8, 2005, available at www.carnegie December 7, 2006, that he did not know what had endowment.org/files/ConstitutionDraftingUpdate.the United Stateshappened Institute to the committee’s library.of Peace pdf (accessed on April 22, 2009). 122. The United Nations Office for- Pro 116. The outreach unit structure and mandate gram Services interview study of July 20–25, 2005, was prepared with the assistance of UN and USIP showed, remarkably, that when asked, “Have you experts, including Scott Carlson, who had advised ever participated in a discussion, forum, or other the Albanian constitutional commission. event on the constitution?” 93 percent of Iraqis an- 117. The status of the outreach unit was swered no. When asked, “How willing would you somewhat complicated by the appearance of a pro- be to attend a live public forum on the constitu- posal from the government that the minister for tion?” nearly 60 percent of Iraqis answered that they national assembly affairs, Dr. Safa al-Safi, would were either very willing or somewhat willing. Con- establish “a ministerial committee under the name stitutional Baseline Survey, Conducted on Behalf of the of the Committee of Supporting and Encourag- Transitional National Assembly, Constitution Draft- ing National Dialogue on Popular Participation in ing Committee, copy on file with the author. Drafting the Constitution.” See “Defense Depart- 123. See, e.g., the third printing of Feldman, ment Briefing by Dr. Safa al-Safi,” Combined Press What We Owe Iraq, pp. 135­–36, in which he makes Information Center, Baghdad, May 27, 2005. It is this argument. Feldman’s and other intelligent com- Framing the State in Times of Transition 597

mentaries on U.S. policy toward Iraq’s constitution it as a national compact. This constitution, the basis making do not quite appreciate, however, the degree of Iraq’s emerging democratic government and the to which Iraqi identity was not capable of being ex- road map to its future, will be a living document, pressed in constitutional language. as all enduring constitutions are.” See Embassy 124. For one excellent dispassionate exposi- of the United States, Baghdad, Iraq, “U.S. Envoy tion of this fact from a longtime observer of Iraq, Welcomes Compromise on Iraq’s Draft Constitu- see Patrick Cockburn, The Occupation: War and Re- tion,” available at iraq.usembassy.gov/iraq/101305_ sistance in Iraq (London: Verso, 2006). compromise.html (accessed on April 22, 2009). 125. To this extent, the prescription of Larry 131. A number of informed observers com- Diamond that “Iraq needs . . . a political accommo- mented ahead of the referendum that notwithstand- dation with the bulk of the Sunni population that ing any merits of the constitutional text, the politics feels marginalized from the emerging political or- of its production meant that it would be better if der” (Squandered Victory, p. 316) addresses only part the constitution were rejected. See, e.g., Bernard of the problem. Marina Ottaway of the Carnegie Gwertzman, “Brown: Best Hope for Iraq Is Rejec- Endowment for International Peace was an early tion of Draft Constitution and Reopening of Nego- advocate for U.S. policy to work to create a “viable tiations,” Council on Foreign Relations, August 29, Sunni region,” a policy that sadly was never imple- 2005, available at www.cfr.org/publication/8772/ mented: see Marina Ottaway, “Back from the Brink: brown.html (accessed on April 22, 2009). A Strategy for Iraq,” Carnegie Endowment for In- 132. For a discussion of the connection be- ternational Peace Policy Brief 43, November 2005. tween the constitution and Sunni Arab violence, 126. The views of advocates of the -parti see International Crisis Group, In Their Own Words: tion and regionalization of Iraq, including Leslie Reading the Insurgency, Middle East Report no. 50, Gelb, Senator Joseph Biden, and Peter Galbraith, February 15, 2006, p. 16 (“Armed groups condemn were dismissed out of hand by U.S. policymak- the constitution as a recipe for partition, a symptom ers at least until the end of the George W. Bush of politicians’ opportunism and selfishness and evi- administration. dence of U.S. plans to break up the country”). For 127. It is ironic that many Sunni Arab Iraqis the role of the constitution and the civil war, see and their sympathizers since have accused the also International Crisis Group, The Next Iraqi War? United States of adopting excessively consocia- Sectarianism and Civil Conflict,Middle East Report tional policies in Iraq, when in fact U.S. policy in the no. 52, February 27, 2006. Bush administration ran in precisely the opposition 133. See, e.g., the Iraq Study Group report, direction. which placed great hope for national reconciliation 128. “The 15 Boycotters Refuse to Sign the on the prospect of constitutional amendment, with Draft Constitution,” Al-Sabah, August 29, 2005, little chance of a result. The Iraq Study Group Report © Copyrightp. 2. by the Endowment(New York: Vintage Books, 2006), Recommenda of - 129. Even the strongest proponents of post- tion 26, p. 65. August renegotiation, including the International 134. In this respect I disagree with the analy- theCrisis UnitedGroup, acknowledged Statesthat a “last-ditch, de- Instituteses of the International ofCrisis Group.Peace See, e.g., In- termined effort to broker a true compromise” had ternational Crisis Group, Unmaking Iraq: A Consti- doubtful chances of success. International Crisis tutional Process Gone Awry, Middle East Briefing no. Group, Unmaking Iraq: A Constitutional Process Gone 19, September 26, 2005, p.1 (“The second casualty Awry, Middle East Briefing no. 19, September 26, was the text itself. Key passages, such as those deal- 2005, p. 1. ing with decentralization and with responsibility for 130. See Sheikh Humam Hamoudi, “Amend- the power of taxation, are ambiguous and so carry ments to the Constitution,” letter dated October the seeds of future discord”). For variations on this 13, 2005, setting out the schedule of amend- theme from Iraqis who were ideologically commit- ments (copy on file with the author). On Octo- ted to a future Iraqi nation-state of a unitary (non- ber 12, after concluding the agreement, Ambassador federal) sort, see also Hatem Mukhlis, “Voting ‘Yes’ Khalilzad announced in a Baghdad speech: “At the to Chaos,” The New York Times, October 18, 2005; core of their agreement is a decision to mandate the Kanan Makiya, “Present at the Disintegration,” The next democratically elected Council of Representa- New York Times, December 11, 2005. tives to review the con­stitution after its passage and 135. This fact has attracted a historians’ de- recommend any amendments necessary to cement bate on the question of whether Iraq was, in the 598 Jonathan Morrow

wake of World War I, an artificial construct, or islature formally invited non-elected Sunni Arab whether there was some preexisting Iraqi identity leaders to join constitutional negotiations, demon- that will be sufficiently durable to reemerge from strating that leaders from all communities under- the 2005 constitutional carve-up. See, e.g., Reidar stood the importance of a constitution with input Vissar, “Centralism and Unitary State Logic in Iraq from Iraq’s major groups. . . . Signs of vibrant po- from Midhat Pasha to Jawad al-Maliki: A Con- litical life are sprouting. The constitutional drafting tinuous Trend?” April 22, 2006, available at www. committee received more than 500,000 public com- ­historiae.org (accessed April 22, 2009). It is not clear ments on various provisions”). that this debate, and the contested historical trend 137. There are signs that a viable Sunni Arab lines to which the debate refers, will affect the ju- Iraqi regionalist political leadership may now be ridical and political realities in a fragmented Iraq. emerging. See, e.g., “Tribes in the Western Region 136. See, e.g., the National Security Coun- Form a Police Force, Fight al-Qaida,” Ad-Dustoor, cil, National Strategy for Victory in Iraq, Novem- April 29, 2007. ber 2005, pp. 15–16 (“In June, the national leg-

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