The fatal flaws in the U.S. constitutional project for Iraq.

• Author: Mayer, Ann Elizabeth
• Position: ESSAYS

One book critically assessing U.S. planning for post-invasion Iraq concludes that U.S. officials proceeded on the basis of uninformed and ideologically-slanted preconceptions, arrogantly presuming that Iraq could be treated as a blank slate upon which the United States could write its own vision of democracy. (1) The following assessment reinforces that conclusion, focusing on the preconception that Jeffersonian ideals of religious freedom could be readily exported to Iraq and, once implanted in the new constitution, serve as pillars of the new democratic order. As will be documented here, the attempts to export distinctive American constitutional priorities may be correlated with a disinclination to grapple with the realities of Iraqi history and politics. Such a misconceived constitutional project could not have succeeded--especially where the train of events set in motion by the U.S. invasion empowered ambitious Islamist movements and inflamed sectarian rivalries.

Counseling U.S. efforts to incorporate strong protections for religious freedom in the new Iraqi constitution was the U.S. Commission on International Religious Freedom (USCIRF), a governmental agency tasked with monitoring religious freedom around the globe and advising the executive and legislative branches. (2) Reflecting the high importance that the U.S. government attached to promoting religious freedom, the USCIRF proclaimed in its 2003 International Religious Freedom Report, published the year of the invasion of Iraq, that "[as a] core American value and a cornerstone of democracy, religious freedom is a central tenet of United States foreign policy. As President Bush has repeatedly affirmed, religious freedom is a key component of U.S. efforts to ensure security, protect stability, and promote liberty." (3)

Although many studies have been published detailing the heavy investment that U.S. officials made in trying to shape the post-invasion Iraqi constitution, they have tended to steer away from addressing a fundamental question: Whether at its core, the U.S. constitutional project was delusional and doomed to be an exercise in futility. Examining the attempts to engineer a secular post-Saddam order by recourse to constitutional provisions can shed light on this question. The record of interventions by the USCIRF is instructive in this regard. Where the Iraqi constitutional project was concerned, the USCIRF functioned as a high profile advocate and lobbyist for the U.S. policy of marginalizing Islam and prioritizing religious freedom. Although not playing any direct role in drafting the constitution, it reviewed every stage of the evolution of constitutional provisions that had implications for religious freedom. (4) When analyzed, the USCIRF's numerous attempts to obtain its favored constitutional formulations affecting religious freedom reveal a U.S. official mindset that vastly overestimated the capacity of constitutionalism to determine developments in Iraq.

OFFICIAL U.S. EFFORTS TO SHAPE THE IRAQI CONSTITUTION

Bush administration policy to protect religious freedom carried over to U.S. strategy in Iraq, where constitution drafting formed a central component of the strategy for curbing the scope of Islamic law. This was shown in an interview in February 2004, when President Bush explained that he was communicating to Iraqis the parameters of what would be permitted. When asked whether he would accept the outcome if Iraqis chose "an Islamic extremist regime," Bush answered: "They're not going to develop that. And the reason I can say that is because I'm very aware of this basic law they're writing. They're not going to develop that because right here in the Oval Office I sat down with [Iraqi Governing Council members] Mr. [Adnan] Pachachi and [Ahmad] Chalabi and [Abdelaziz] Al Hakim, people from different parts of the country that have made the firm commitment, that they want a constitution eventually written that recognizes minority rights and freedom of religion." (5) President Bush made what seems to have been his sole personal intervention in the Iraqi constitution-drafting process to call for guaranteeing religious freedom. (6)

Ambassador L. Paul Bremer, Iraq's civil administrator after the invasion, outspokenly called for instituting a secular system in which Islamic law would be sidelined. There was muscle behind his statements, since under UN Security Council Resolution 1483, nothing--including any draft constitution--could become law in Iraq unless it was signed by him. Not shy about describing the goals of the U.S. constitutional project, Bremer proclaimed that the United States would help write an interim Iraqi constitution that "embodies ... American values," leading to the creation of a new government. He announced: "We will write into that interim constitution exactly the kinds of guarantees that were not in Saddam's constitution." (7) In February 2004, Bremer publicly stated that he would not permit any transitional Iraqi constitution to be based on Islam, warning that he would veto any constitution that clashed with his position. (8) This stance provoked indignant criticisms from Iraqis. For example, a representative of the most important Shia group, the Supreme Council for the Islamic Revolution in Iraq, proclaimed that Iraqis did not abide by imported concepts. Meanwhile, a representative of the revered Ayatollah Sistani responded that Islam was the source of legislation and this was natural given the country's Muslim majority. He warned that no one--presumably meaning no American had the right to interfere in the details of the constitution. (9)

In August 2005, Zalmay Khalilzad, the new U.S. ambassador to Iraq, had the task of pushing through the U.S. plan for completing the draft of the final constitution. He exerted strong pressures on the Iraqi drafters to meet the deadline, demanding that the draft include assurances for the Sunni minority and that the role of Islam be a limited one. He also threw his weight behind a campaign by Iraqi women seeking to curb the role of Islam in the constitution out of concern that Islamic law could be invoked to circumscribe women's rights. (10)

President Bush continued to emphasize constitutional provisions while downplaying the significance of actual political developments. Even as the destructive impact of Iraq's civil war metastasized, President Bush clung to the notion that Iraq's adoption of freedoms along First Amendment lines in its 2005 constitution-Article 2 having provided for religious freedom and Article 36 for freedom of the press--amounted to an impressive milestone in the march towards democracy. At a news conference with Russian President Vladimir Putin in St. Petersburg in July 2006, Bush touted U.S. policy successes, telling the press that he expressed to Putin "my desire to promote institutional change in parts of the world like Iraq--where there is a free press and free religion--and I told him that a lot of people in our country would hope Russia would do the same thing." Challenging the notion that a country that was staggered by savage sectarian warfare and whose citizens were routinely slaughtered for having the wrong religious affiliations offered a model worthy of emulation, President Putin replied, "We certainly would not want to have the same kind of democracy as they have in Iraq, I will tell you quite honestly." (11) The laughter that Putin's sharp rejoinder provoked among members of the audience suggested that they found Bush's sanguine perspective regarding the U.S. accomplishments in Iraq quixotic. But in the Bush administration's handling of Iraq's problems, exalting ideological preconceptions in the face of conflicting realities on the ground was the norm.

FACTORS UNDERMINING THE U.S. CONSTITUTIONAL PROJECT

Whether in Washington or in Iraq, U.S. officials seemed wedded to the notion that they did not need to familiarize themselves with the actual situation in Iraq or adjust to Iraqis' attitudes and experiences. Ignoring actual events that pointed toward escalating sectarian conflict, they acted as if Jeffersonian constitutional architecture would suffice as the foundation for Iraqi democracy--effectively building a house on sand. In Rajiv Chandrasekaran's Imperial Life in the Emerald City, which includes acerbic appraisals of the woeful lack of qualifications and local expertise on the part of those assigned to manage post-invasion Iraq, he reports a telling anecdote about one of the Coalition Provisional Authority (CPA) staffers. Chandrasekaran dined with him in the Green Zone on 2 March 2004 after suicide bombers had hit the Imam al-Kadhim shrine in Baghdad, causing gruesome carnage and aggravating sectarian animosities. Chandrasekaran listened as the staffer and his colleagues discussed the 2004 Transitional Administrative Law (TAL), the interim Iraqi constitution. With its extensive bill of rights, he predicted that it would serve as a model for the Middle East. Chandrasekaran brought up the bombing, asking if the group realized that dozens had been slaughtered. "Yeah, I saw something about it on the office television," the staffer replied, adding: "But I didn't watch the full report. I was too busy working on my democracy project." (12)

In the same way that U.S. advisors averted their eyes from the ominously deteriorating security situation and pushed forward with their constitutional project, they also neglected to turn their glances backward, effectively dismissing the relevance of Arabs' recent experience of European imperialism. For many Arabs, recent history framed the U.S. mission of spreading democracy as a manifestation of neo-imperialism. While U.S. officialdom claimed that Iraqis supported the liberation of their country by U.S. forces, a 2004 survey established that, outside of the Kurdish north, 81 percent of Iraqis considered coalition troops as occupiers, not liberators. (13) This was not surprising, given that...