What Went Wrong in Iraq

Larry Diamond

From Foreign Affairs, September/October 2004

Summary:  Although the early U.S. blunders in the occupation of Iraq are well known, their consequences are just now becoming clear. The Bush administration was never willing to commit the resources necessary to secure the country and did not make the most of the resources it had. U.S. officials did get a number of things right, but they never understood-or even listened to-the country they were seeking to rebuild. As a result, the democratic future of Iraq now hangs in the balance.

Larry Diamond is Co-editor of the Journal of Democracy and Senior Fellow at Stanford University's Hoover Institution. From January to April 2004, he served as a Senior Adviser to the Coalition Provisional Authority in Baghdad.

One of Bremer's-and the Bush administration's-highest priorities was to leave Iraq with an interim constitutional framework that would provide a strong, and hopefully enduring, framework for democratic government and the protection of individual rights. The drafting of the Transitional Administrative Law (TAL) was thus a crucial element of the November 15 plan. Pachachi, the chairman of the GC's constitutional drafting committee, shared the liberal values and aspirations of the United States for this document, and so, quite passionately, did the Iraqi and Iraqi-American legal specialists he tapped to do the initial writing. For several weeks, from late December 2003 through early February 2004, they worked, alongside CPA advisers, to craft a document that became much more of a full-blown interim constitution than some (including the UN) thought necessary or appropriate.

Both Iraqis and Americans agreed that the document needed strong and explicit protections for individual rights, and the bill of rights they came up with did not prove controversial. More problematic was how to structure the government, how to divide power between the center and regions (in particular, the Kurdistan regional government), what role to give religion, and what process to endorse for the adoption of the final constitution. These issues brought out the deep political and social cleavages in contemporary Iraq-between Islamists and more secular forces, between Shia and Sunni, and between Iraqi Arabs and Kurds. The drafters produced a document that assured freedom of religion and that nodded toward Islam without basing the state on it. For the time being, this seems an acceptable compromise. Similarly, the formula for a government headed by a prime minister, but with some powers of appointment, supervision, and legislative veto retained by a three-person presidency council, also proved broadly acceptable. Indeed, this was a formula more or less mandated by the GC from the beginning.

One of the toughest sets of issues concerned the vertical division of power and the place of Kurdistan within the Iraqi nation and its political system. Iraqi Kurdish leaders insisted emphatically that their region needed to retain the autonomy it had exercised since the end of the Persian Gulf War. Having suffered terrible oppression and discrimination from the central government in Baghdad, they were determined to protect themselves in the future. Moreover, many Kurds-particularly younger ones, who had reached maturity after 1991 without ever speaking Arabic or identifying with the Iraqi state-favored outright independence, and their leaders worried that if the new system did not preserve their autonomy, these demands might grow. Thus the Kurds pressed for a highly decentralized-almost confederal-system, while also making it clear that they would settle for a preservation of their autonomy and veto rights. To accommodate these demands, the TAL established that all decisions by the Presidency Council (which, presumably, would have one Kurdish member) would have to be unanimous and blessed the continued existence of the regional Kurdistan government, to which it gave greater powers than were granted to the other provincial governments. In the final round-the-clock GC negotiations to complete the document in early March, the Kurds also made a new demand: that any three provinces (and Iraq has three predominantly Kurdish provinces) get the right, by a two-thirds vote in each, to reject the final constitution in a referendum. To prevent a Kurdish walkout, this provision was inserted into the TAL as Article 61c.

Although the constitutional bargain gave the Kurds what they insisted on, it left many Iraqis, especially the Shiites, disaffected. Sistani, for example, raised strong objections, particularly to Article 61c, which he and other Shiites felt would render meaningless the Shiites' power as the demographic majority in the country. This led to a last-minute crisis in which most of the Shiite delegates withdrew from the final negotiations and went to Najaf to consult with Sistani. Although they finally returned and signed the document, giving it unanimous GC consent, they did so only ambiguously, pledging to amend it (particularly Article 61c) later.

At this point, the CPA faced a serious dilemma. The negotiations over the TAL had already stretched beyond the February 28 deadline laid out in the November 15 plan. If the country was going to achieve sovereignty on June 30, this first big step had to be completed so that the process could move on to the remaining work. But by rushing to complete the document without a national debate and the forging of a sustainable consensus, the GC and the CPA covered up deep divisions that quickly boiled to the surface. While happy with a number of the document's features, including those providing for individual rights and an independent judiciary, many Iraqis felt that it granted too many "special rights" to the Kurds and other minorities. Many worried that the document would be a formula for the breakup of the country.

The CPA had long been planning a campaign to sell the TAL to the Iraqi people once it was adopted. A British advertising agency with offices in the Middle East had been hired to produce a campaign of emotional and highly symbolic television and newspaper ads. Yet inexplicably, this campaign did not begin until several weeks after the TAL's signing. This allowed it to be preempted by the appearance of crude leaflets on the streets of Iraq's cities, which denounced the TAL as unfair, unrepresentative, and undemocratic, "a dictatorship of the minorities." These denunciations caught on with the Iraqi public and largely neutralized the CPA's expensive public-relations effort before it ever got off the ground.

I encountered the popular discontent firsthand at public lectures and smaller seminars held in Baghdad, Tikrit, Balad, Basra, Nasariya, and Hilla in March, where I tried to explain the key principles of the TAL and to stimulate discussion. There was plenty of discussion, but almost all of it was critical. Many Iraqis-provincial and local council members, clerics, sheikhs, civic activists, and other opinion leaders-arrived with the leaflet in hand and even quoted from it, as they passionately denounced the document. Repeatedly I was asked, How could such a document be adopted without public debate? Why was one section of the country given so much power? Even when I pointed out some logical inconsistencies in these concerns-for example, that the requirement that all presidency council decisions be unanimous made it much more difficult for the presidency (and hence the Kurds) to veto legislation-people were not much mollified. The anger and frustration were palpable and suggested several things: that Iraqis wanted democracy, though they had a very partial and majoritarian understanding of what it entailed; that Iraqis wanted more voice and participation in government; and that the CPA and the GC were widely distrusted and held in low esteem.

Something should have been done before June 30 to address the widespread grievances with the document, particularly Article 61c, to prevent a major crisis down the road. The lack of broad consensus raised the risk that when the transitional parliament is elected early next year it will disavow the document and amend it at will. I suggested to Bremer and some of my CPA colleagues that we use the instrument of the annex that was to be written to the tal-providing for the structure of the interim government between June 30 and the election of the transitional parliament at the end of this year or early next-to negotiate some amendments. One Shiite political leader with ties to Sistani had proposed that the three-province veto be transferred from the referendum to the deliberations and voting in the transitional parliament, and that the veto be narrowed to cover only issues concerning the rights and powers of provinces and regions within Iraq's federal system. To protect other minority rights, a provision could also have been adopted requiring a special majority (say, three-fifths) for adoption of the constitution by the Transitional National Assembly. This proposal would have guaranteed that Kurdistan could preserve its regional autonomy but would not have enabled the Kurds or any other minority to veto (and thus in the parliamentary negotiations, shape) every aspect of the constitution. I do not know if such a compromise would have been acceptable to Sistani and his followers, but some alternative should have been discussed then, before the election of a transitional parliament made compromise even more difficult. Yet inside the thick walls of Saddam's old presidential palace where the CPA was headquartered, such suggestions fell on deaf ears. Public debate over the interim constitution was abruptly terminated and was soon eclipsed by the outbreak of wider violent insurgencies in April.

CAN IRAQ BECOME A DEMOCRACY?