Bush Administration And Democracratic

Bush Administration and ‘Democracratic Process’ In Iraq: The Dark Details Revealed

An informed reader writes:

‘ From the now-unclassified State Department Report to Congress – 15 December 2003:

“On November 15, the CPA and the Governing Council (GC) agreed to and announced a plan to expedite the process of transferring authority to the Iraqi people. [!?] Under this plan, the GC, in cooperation with the CPA, is expected to establish a political process that will lead to a representative transitional national assembly to assume full sovereign powers by July 2004. The agreement also provides, in connection with the wishes of the Iraqi people, for the drafting of a permanent constitution ….”

There are four points:

1. While the “Agreement on Political Process” (which provided for caucuses) was signed by then rotating President of the Governing Council Talabani (probably on the following Monday, because the draft released earlier, it being clearly a rough draft, was worked on over the weekend after the announcement), and announced on Saturday evening, 15 November, in Baghdad, within days, it became clear that there was no agreement, at least with respect to the caucuses, and on 28 November, Grand Ayatollah al-Sistani issued the following statement:

In the Name of Allah, The Compassionate The Most Merciful

His Eminence the Sayyid (long may he live) has some reservations regarding the said plan.

Firstly, it is based on preparing the law of the Iraqi state, for the transitional period, through the Governing Council in conjunction with the occupying power – thus not providing it with legitimacy. For this (legitimacy) to be achieved it must be presented to representatives of the Iraqi people for approval.

Secondly, the mechanism in place to choose members of the Transitional Legislative Assembly does not guarantee the establishment of an assembly that truly represents the Iraqi people. Therefore this mechanism must be replaced with one that guarantees the aforesaid, which is “elections”, so the Assembly will emanate from the desire of the Iraqi people and will represent them fairly without its legitimacy being tarnished in any way. Perhaps “elections” can be organized using rationing-cards and other supplements.

Seal of the Office of Sayyid Seestani – Najaf
3 Shawwal 1424
28 November 2003

2. As I have suspected – and, indeed, much earlier articulated as a theory – it appears possibly to be the case, that the White House, in some concern or even panic at the mounting casualties at the time, determined in November 2003, that “full sovereignty” was an answer, and that, notwithstanding the predictable fate of the caucuses, the Team could not turn back, and proceeded with faux full sovereignty, from a legitimacy point of view, notwithstanding the flaws, even if they were recognized as such. At the same time, President Bush, not being an international lawyer, might well have believed that the interim government under discussion, which was to receive “full sovereignty,” because it was to be selected by a caucus procedure with which he was familiar, would be sufficiently “elected” to be legitimate.

3. The report is dated 15 December 2003, whenever written in fact, and is materially misleading as of that date by not reflecting the matters referred to in point 1 above. Here is the relevant portion of the balance of the Report:

“On November 15 …[as quoted above] Under this plan, Iraqis will draft a “Fundamental Law” that will formally set forth the scope and structure of the Iraqi transitional administration. Through a system of caucuses … Iraqis will select a broadly representative Transitional National Assembly. This assembly will elect a temporary government to which the CPA will transfer full authority. GC members will be allowed to serve in the transitional assembly, if elected in accordance with the transparent and democratic process [!?] set out in the plan.”

Of course, even if Congress was materially misled (a speed Congressional reader might assume that Iraq’s interim leaders were to be elected), as appears to be the case, what they could or would have done about any of this is a question.

4. The constitution is deemed secondary. There already was an interim government which could have served as generally acceptable administrator of limited powers during a period in which the constitution was drafted and approved in a referendum. The authority, powers and limitations could have been set forth in less than ten pages. The TAL apparently was originally intended to apply to, and limit the conduct of, Iraqi officials who would serve in the next government, and who were to be deemed in effect to be pseudo-elected by reason of the caucuses, and therefore, by process and constitution-like document, would have the capability, from a democratic legitimacy point of view, to receive “full sovereignty.” Without the caucuses, or elections in lieu thereof, legitimacy was left to be provided by a document. Without tracking cause and effect and other things, the necessity for elections for still another transitional government became even more important than it otherwise would have been.

People in the US Embassy continued to work on the caucus procedures and possible implementing institutions through the entire TAL-drafting process, notwithstanding the fact that they had been dead on arrival in November, unless Grand Ayatollah al-Sistani was to be ignored not only with respect to his June 2003 statement that the constitution and referendum must come first, but also with respect to the fundamental deficiency of the caucus process proposed.

It probably also was intended by momentum and other human factors to influence the text of the constitution.

Unfortunately, all is history, by now.

But the final point is not unimportant. This was and is serious stuff, and the “picture” of the five most powerful people in the US Government throwing together in haste basic documents with respect to the future of Iraq, amid confusion with respect to, if not intentional distortion of by some, the facts and applicable legal and political principles, is not a good one.

It is more than understandable that other governments were unwilling to get involved then, and may be (are) reluctant to do so even now.

The last point is the most important of all, and is continuing.

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