Democracy in Iraq
/Operation Iraqi Freedom Revisited/
When President George Bush announced ten days ago that “the survival of
liberty in our land increasingly depends on the success of liberty in
other lands,” he drew upon a notion with deeper roots in the history of
political thought than perhaps he was aware. This notion, the neo-roman
theory of freedom, states that individual liberty is constrained not
merely by force or the threat of it, but by “a condition of
dependence”—which “is in itself a source and form of constraint.”^1 That
is to say that “it is the mere /possibility/ of your being subjected
with impunity to arbitrary coercion, not the /fact/ of your being
coerced, that takes away your liberty and reduces you to the condition
of a slave.”^2 It is accordingly only possible for an individual to be
truly free in a free state. President Bush, by making “liberty in our
land” dependent on “liberty in other lands,” internationalized this
notion as he invoked it. The move was programmatic and prescriptive, but
equally self-satisfied and retrospective—referring undoubtedly to the
War on Terrorism and, specifically, the liberation of Iraq, which comes
into being today with the first national elections in fifty years. Here
we undertake only to examine the terms of this liberation in the
language supplied by our president and our media.
*An indelible moment*
“An Indelible Moment,” is one among several hundred articles that have
littered our collective imagination during the past weeks. Printed
yesterday as expatriate ballots were cast, it is the Washington Post’s
attempt to consummate the marriage of Iraqi-democracy.
There was much to reconcile, many mixed emotions. This moment had
been purchased with a lot of blood. But even in the fog of war and
the sadness of exile and the blindness of faith there are truths
that cannot be denied, that everyone can agree upon. Hayder
Alhamdani selected one of these simple, resonant truths for this
moment.
“This,” he said quietly, “is the first time in my life.” He let go
of his ballot. He cast his ballot.
All day yesterday, voters held up their purple fingers in triumph.
It was a new victory sign, maybe someday a peace sign, they hoped.
It befitted the low-tech, hands-on feel of this election—democracy
at its most basic and emotionally powerful. Democracy had marked
them, touched them physically, and they hoped it would last forever.^3
In today’s Los Angeles Times, this story took the form of an Iraqi
expatriate family’s interstate “drive for democracy,” while in the
Boston Globe it is a “historic event.”^4 The Baltimore Sun even exhorts
Iraqis that “the moment has come to exercise your political freedom for
the first time.”^5
But the occasion is not only one of joy. Dahr Jamail reported to Amy
Goodman and Juan Gonzales only hours prior to the indelible moment that
things in Baghdad was “a city under siege.”^6
Well, there have been ongoing attacks on polling stations, just in
the last 24 hours in Iraq. There’s been at least 15 people killed in
attacks on polling stations as they’re being set up for Sunday's
polling process. It's been very, very bloody here. Every day at
least 15 Iraqis a day have been killed in the last, at least, four
or five days at the minimum.
The official response has been the elimination of all non-official cell
and satellite phone services, the banning of all civilian use of cars.
Thus Dahr Jamail and Brian Dominick document the unease that surrounds
the event.
“We are not against elections,” said Saif, an 18-year-old Shiite
biology student at Baghdad University, “but we are against the
timing of them. Look at the security,” he exclaimed...“I will not
vote, nor will anyone I know.”^7
Such views, incidentally, altogether contradict the principle championed
by all US commercial news outlets that determine enthusiasm for the
elections along unmistakable religious lines. The New York Times
characteristically led the charge: “Every single Shiite interviewed for
this article said he or she planned to vote...all the Sunnis
interviewed, except one, said they were going to boycott.”^8 Such
assessments ignore the irony that this glorious, historic transition to
democracy occurs under the conditions of martial law. Exercising
political freedom is perhaps not as easy as it seems.
But what about the specifics of this exercise in political freedom? Dahr
writes that “more than 7,000 candidates on the electoral lists have
opted to remain anonymous prior to polling day.”
Even determining how many lists of candidates will actually appear
on the January 30 ballot is an elusive task, with the Independent
Commission originally reporting 83, the UN claiming 256 during a
ceremonial ordering of the ballot on December 20, and the Iraqi
Independent Commission spokesperson putting the number at 111 during
the recent IRIN interview.^9
Unsurprisingly, then, Abu Sabah, a grocery stall owner near the Karrada
district of Baghdad, asks
Who says we should have elections for people we don't even know
during occupation, martial law and in a war zone? And why vote when
we're expected to vote for an entire list of candidates when we only
know, if we're lucky, one or two of their names?^9
He is not alone.
“I have seen the lists, and I don't know any of them,” said Mustafa,
a 20-year-old physics student at Baghdad University. “I don't know
if I'll vote yet because we don't know any of these people. I can't
vote for someone I don't know.” ^10
Prof. Shawket Daoud, a computer science specialist who now works for
the government, said uncertainty over polling booths and the fear of
violence was not the only problem. ”Why vote when we don't even know
who is running yet?” ^11
Nonetheless, the Washington Post tells us, “Democracy had marked them,
touched them physically, and they hoped it would last forever.”
*This is what democracy feels like*
This is not to imply that news coverage of the elections has been devoid
of its adversarial trademark. In the New York Times, scrutiny is
directed at the notion that Iraqis are ready for democracy.
But questions over the election go far beyond the American
stewardship, to issues that touch on whether it was ever wise or
realistic to think that Jeffersonian-style democracy, with its
elaborate checks on power and guarantees for minority rights, could
be implanted, at least so rapidly, in a country and a region that
has little experience with anything but winner-take-all politics.^12
Our media elsewhere provided much to substantiate this, as the reporting
of an American election worker shows.
There were a lot of misconceptions. I explained, for instance, that
the majority rules, but minorities are protected. This is new to
Iraqis. People who have been spoon-fed everything for many years
have trouble knowing what freedom involves. ^13
Indeed, many Iraqis seem to have some trouble knowing what freedom involves.
“The elections cannot be legitimate because we are under occupation,
so I will not be voting, nor will any of my friends,” said Layla
Hamad, a Shiite shop owner.
“It's not a matter of elections, because those in power will stay in
power,” commented Suhaid, a 23-year old Shiite who is an unemployed
computer science engineer. “This is a big lie and the elections are
illegitimate.”
Asked if he expected to vote, Saif promptly responded: “Even though
the elections will happen, they will not be legitimate, and they
will be a disaster. Anybody elected will be a puppet of Bush.”^14
To understand “what freedom involves” let us first understand what it
does not involve. The vote today is not a vote on how to manage and
distribute the country’s vast resources, on how to go about bringing the
occupying power to justice for unremitting war crimes, or even on
whether to continue to host an army that continues to rape its lands and
murder its citizens. “Democracy at its most basic and emotionally
powerful,” as the Washington Post called it, instead means choosing from
a list of unknown names. Following a narrated account that one is hard
put to call anything other than pornographic, the Washington Post
announces that “this is what democracy feels like.” Unfortunately, “what
democracy feels like” to Iraqis during the rest of the day and night is
the collective punishment essential to any occupation: curfews, other
restrictions or bans on public gatherings, road blocks
razed agriculture
home demolitions
mass detentions.^15
But these are all justifiably small considerations beside the emergence
of democracy and its initiation of the constitutional processes. The New
York Times is nonetheless quite right to write somewhat dubiously of
implanted Jeffersonian checks on power in Iraq. For in 1984 it was also
given assurances by the then US ambassador to Honduras that that country
was “committed to the constitutional process.” In recent years, however,
much has been said the informal subversion of constitutional process by
state subsidized torturer and death squads. Formal, too, were
subversions of constitutional process. When Juan Almendares was
reelected as President of the University of Honduras, for instance, his
victory was challenged in court. He wrote in recent years that Justice
José Benjamin Cisne Reyes of the Honduran Supreme Court confessed that
the US ambassador “pressured us to annul your recent reelection as
rector, giving the reason that you endanger the security of the state.”
Mr. Reyes confessed that he and all of the other Supreme Court Justices
had committed “this dishonest act” out of fear for his life and for the
life of the Mr. Almendares.^16 Mr. Almendares’ reelection was annulled
and a critic of US policy was thereby removed from public life. The
digression here is I think only apparent, for the US ambassador to
Honduras then is today the US ambassador to Iraq. The Baltimore Sun and
the New York Times are therefore quite justified in suggesting that
Iraqis may not quite yet have the capacity to enact a “separation of
powers, the rule of law and an independent judiciary, concepts that have
been alien, or at least malleable, under the rulers Iraqis have known
for centuries.”^17
*Before the law*
On the same thread, let us turn from the possible subversions of the
constitutional process (however probable) to the constitutional process
itself, as embodied in the letter of the law. Surely this process, whose
results will endure the subversions of the coming months and years, is
worth their price; temporary coercions are a small cost to pay for
freedom. The freedom to be delivered by the constitutional process is
outlined by the Transitional Administrative Law (TAL). The initial step
towards freedom will come in the form of the Iraqi Transitional
Government (ITG) will be composed of a independent judiciary, the
National Assembly (to be elected today), which will elect a three-person
Presidency Council, which in turn appoints a Prime Minister and Council
of Ministers. On behalf of The Washington Institute for Near East
Policy, the senior intelligence analyst for Iraq at U.S. Central Command
writes,
The ITG’s most important task in governance will be its efforts to
restore security and stability in Iraq. As time goes on, the
challenges involved in thwarting the insurgency will only increase.
The struggle to establish competent Iraqi security forces will
continue to be a critical task for the government.^18
How diligently the ITG will execute the bidding of Washington is uncertain.
Within the ITG, the potential use of these forces could become
controversial. Considering its dispersal of power and its checks and
balances between various branches, the ITG will likely not be as
decisive as the IIG has been. The role of Coalition forces in
fighting the insurgency will be another key component of ITG debate.
Many in Iraq’s political elite are probably uncomfortable with the
Coalition’s strength and pervasive presence, despite the central
role that Coalition forces play in maintaining security. Some of
Iraq’s emerging political class may be vocal in advocating limits on
Coalition activity or continued deployments inside Iraq—either as a
matter of policy or as populist political theater.^19
Iraqis, through the ITG, would seem to be given by the constitutional
process the legal mandate to challenge the policies of its occupiers.
However, “In the ITG, the judiciary will emerge as a prominent player in
national politics.”
As the interpreter of the TAL, the judiciary occupies a potentially
powerful position to intervene in the transition process. The
supreme court, in particular, has the power to challenge virtually
any decision that it believes to contravene the TAL. In deciding
what legal questions it will examine, the court largely formulates
its own rules. Rather than wait for formal legal complaints to wind
their way through a hierarchical court system, the supreme court
theoretically has broad authority to identify and act upon issues it
deems relevant to the interpretation of the TAL. This sort of
independence, and the ability to block legislative and executive
actions, represents a new and unusual feature of Iraqi politics in
general, and specifically for judges.^20
The “ability to block legislative and executive actions,” it should go
without saying, is legal answer to anything the National Assembly or its
elected representatives might have to say about the war being waged by
US army on the people of Iraq or anything else. Who are the members of
the judiciary? Article 43(b) of the Transitional Administrative Law
provides the answer.
All judges sitting in their respective courts as of 1 July 2004 will
continue in office thereafter, unless removed from office pursuant
to this Law.
The branch of government, then, that “independent voice” that “largely
formulates its own rules” having unlimited “ability to block legislative
and executive actions” is the same arm of justice that was installed by
and administered the occupation by a foreign power. Among such
“legislative and executive actions” are those that will have lasting
effects.
An example of a potentially significant intervention is the court’s
authority to “force” forward a failing constitutional drafting or
ratification process. Such an independent authority did not exist
during the negotiation and signing of the TAL, which was delayed for
several days past its deadline when last-minute objections were
raised and debated. The informality of the 15 November Agreement
established no authorities and named no penalties for this delay.
Under the TAL, however, supreme court judges faced with similar
delays in drafting the permanent constitution would be duty-bound to
trigger the painful provisions of dissolving the government and
starting again.^21
The effect should be clear: all legislation, including the constitution
of the Iraqi state itself will be those acceptable to the occupying
power. As President Bush indicated when he said that the fate of our
freedom is contingent upon freedom abroad (implying that the mere
possibility of unfreedom anywhere threatens freedom everywhere), the
issue here is not decisive action on the part of the judiciary, but the
/possibility/ of such action. In other words, it may well come to be
that in the next months and years, the judiciary will not exercise the
extent of the power allotted to it. But the mere possibility of the
exercise of such power, in the law, will provide a (US imposed)
corrective effect upon the actions of the Iraqi Transitional Government,
and all Iraqi governments thereafter. Arbitrary coercions thereby do not
merely subvert the law; they are written into the law. One can only
conclude that “the rule of law and an independent judiciary,” will in
Iraq continue to be “concepts that have been alien”—which is to say
imposed from the outside, by the representatives of the United States of
America.
*Postscript: on criminal justice in Iraq at the present time*
The fact remains that what has been said up to this point of the
Transitional Administrative Law (TAL) and the judicial provisions that
it extends are removed from current, everyday realities in Iraq.
Nonetheless, the indefinite extension of these provisions gives every
indication that /what is/ will be /what remains/. Whatever we can
determine of criminal justice in Iraq up to the present time tells us,
then, what is likely to remain. We begin with Dahr Jamail’s interview of
Lilu Hammed late last May.
Sitting alone on the hard packed dirt in his white dishdasha, his
head scarf languidly flapping in the dry, hot wind, Lilu Hammed
stared unwaveringly at the high walls of the nearby prison as if he
were attempting to see his 32 year-old son Abbas through the
concrete walls. When my interpreter Abu Talat asked if he would
speak with us, several seconds passed before Lilu slowly turned his
head and said simply, “I am sitting here on the ground waiting for
God's help.” His son, never charged with an offense, had by then
been in Abu Ghraib for 6 months following a raid on his home which
produced no weapons. Lilu held a crumpled visitation permission slip
that he had just obtained, promising a reunion with his son…three
months away, on the 18th of August. Along with every other person I
interviewed there, Lilu had found consolation neither in the recent
court martial, nor in the release of a few hundred prisoners. “This
court-martial is nonsense. They said that Iraqis could come to the
trial, but they could not. It was a false trial.”^22
An ACLU press release this past Monday indicates that any torture that
Lilu Hammed’s son may have encountered—let alone the detention which
made him vulnerable to torture—has been systematically abandoned and
uninvestigated by US army authorities. ^23 Torture in the report is
characterized “as acceptable practice” if not “standard operating
procedure.” A ninety-four page Human Rights Watch Report published the
next day investigated the functioning of Iraqi institutions of criminal
justice. It found
The systematic use of arbitrary arrest, prolonged pre-trial
detention without judicial review, torture and ill-treatment of
detainees, denial of access by families and lawyers to detainees,
improper treatment of detained children, and abysmal conditions in
pre-trial detention facilities. ^24
The report found that the prolonged detention of Lilu Hammed’s son is
not the exception the Iraqi Code of Criminal Procedure (CCP), which
requires a defendant to be brought before an investigating judge within
twenty-four hours of his or her arrest; rather, such prolonged
detentions constitute “the vast majority” of cases. This is in
contradiction to the TAL, which stipulates that all Iraqi citizens are
equal before the law, and that their rights to freedom from arbitrary
arrest, unlawful detention, unfair trials, and torture are protected by
law. Human Rights Watch adds that “there are a number of protections in
the CCP that, if implemented, would contribute to the better protection
of persons deprived of their liberty.” The failure to implement such
laws—again, the rule rather than the exception—tells something of the
judicial institutions charged with this task. According to Human Rights
Watch, this rule of lawlessness has been used to target local
journalists and members of rival political parties. The following
testimony, taken from Ali, a 29 year-old suspected dissident, typifies
that which comprises the report.
When we entered the headquarters, the [Iraqi] officer told us to
kneel before him. We were hit on the back of our necks with a rifle
butt. Then they took us upstairs to the first floor and told us to
face the wall and began beating us severely. The Americans were
there, standing some five or six meters away. They just stood and
watched. I was beaten with a wooden stick on my forehead, and all of
us were beaten over the body with cables and hosepipes. That
happened even before the interrogation had begun.
Then they put us in a cell measuring three by four meters.
Altogether we were sixty-three in that room, all crammed together.
Some of the others in the cell had also been tortured. One of them,
a farmer from al-Najaf called Khalid, had had his fingernails
extracted and on of his arms broken. Most were adults but there were
also several children, between fifteen and seventeen [years old]. We
were given no food for the first day and a half. The guards told us
if we wanted to eat we would have to buy our own food.
When a formal complaint was recently lodged in response to one such
interrogation, Chief Investigative Judge Zuhair al-Maliki issued a
series of summons requiring several officials to appear in court to
answer questions relating to the arrests.
The Ministry of Interior’s legal spokesperson, the Minister of
Interior Falah al-Naqib, and the Iraqi National Intelligence Service
director, Major General Muhammad Abdullah al-Shahwani, did not
answer summons issued to them. On October 18, 2004, Judge Zuhair
al-Maliki was removed from his post as the Central Criminal Court’s
chief investigative judge and transferred to another post.
Such is the political process out of which today, quietly, democracy was
born in Iraq.
(1) Liberty before Liberalism, Quentin Skinner, p. 84.
(2) Ibid.p. 72, emphasis mine.
(3) “An Indelible Moment,” Washington Post, David Montgomery, January
29, 2005.
(4) “For many expatriates, casting ballots brings jubilation,
expectations,” Boston Globe, Suleiman al-Khalidi, January 29, 2005.
(5) “First Steps Toward Democracy,” Baltimore Sun, Jonathan Pitts,
January 29, 2005.
(6) “Heavy Bloodshed in Iraq Only Expected to Worsen on Election Day,”
Democracy Now! Amy Goodman, Juan Gonzales, and Dahr Jamail, January
28th, 2005.
(7) “Iraqis Discuss Voting, Or Not, in Elections Held Amidst Chaos,” The
NewsStandard, Dahr Jamail and Brian Dominick, January 18, 2005
(8) “As Election Nears, Iraqis Remain Sharply Divided on Its Value,” New
York Times, Jeffrey Gettleman, January 23. Jassim, a grocery store owner
in the district of Khadimiya, responds that “it is only the political
parties that are using this talk. And it seems as though there are those
who would like to cause a divide. But it will never happen, because we
have never had this divide,” in “What Iraqis Think of the Elections,”
Islam Online, Dahr Jamail, January 25, 2005.
(9) “Iraqis Discuss Voting, Or Not, in Elections Held Amidst Chaos,”
Jamail and Dominick.
(10) Ibid.
(11) “Vote Where, How, and for Whom?” Inter Press Service, Dahr Jamail,
January 26, 2005.
(12) “The Vote, and Democracy Itself, Leave Anxious Iraqis Divided,” New
York Times, John Burns, January 30, 2005.
(13) “First Steps Toward Democracy,” Baltimore Sun, Jonathan Pitts,
January 29, 2005.
(14) “Iraqis Discuss Voting, Or Not, in Elections Held Amidst Chaos,”
Jamail and Dominick.
(15) “I don’t know why I was arrested,” explained Ahmed, a 38 year-old
farmer, who discussed his journey through the military detention system
for 10 months that began during a home raid on August 13th, 2003, and
which found him experiencing treatment like having mock executions,
being bound and having his head covered for days on end, and being held
at a camp near Basra in the scorching summer temperatures. “At that camp
they hung a sign where we stated that said, The Zoo,” he explained. He
claims that his home and fields were searched and no weapons were found.
During his detention he witnessed the sexual humiliation of fellow
prisoners and regular beatings, “Collective Punishment,” Dahr Jamail,
January 14, 2005.
(16) El Tiempo, July 31, 2001.
(17) “The Vote, and Democracy Itself, Leave Anxious Iraqis Divided,” New
York Times, John Burns, January 30, 2005
(18) “Iraq: Outlook for National Elections and Governance
Washington Institute for Near East Policy, Gregory Hooker, January 2005,
p. 27.
(19) Ibid., p. 27.
(20) Ibid., p. 28-9.
(21) Ibid., p. 29.
(22) “Iraq: The Devastation
Jamail, January 7, 2005.
(23) “Newly Released Investigative Files Provide Further Evidence
Soldiers Not Held Accountable for Abuse,” American Civil Liberties
Union, January 24, 2005
(24) “Iraq: Torture Continues at the Hands of New Government,” Human
Rights Watch, January 25, 2005.
Posted by Omar_Khan at January 30, 2005 09:33 PM
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