4. Imposition and bargaining in the Making of the Interim Constitution

1. The title of this chapter freely adapts a couplet used by Jon Elster, “Arguing and Bargaining in Two Constituent Assemblies,” University of Pennsylvania Journal of Constitutional Law 2 (2000): 345. See also Paul Magnette, “La convention européenne: argumenter et négocier dans une assemblée constituante multinationale,” Revue Française de Science Politique 54, no. 1 (2004/2).

2. A. Arato, “Interim Imposition,” Ethics and International Affairs 18, no. 3 (2004); see the discussion “Imposed Constitutionalism,” with N. Feldman’s lead article in University of Connecticut Law Review 37. To be sure, “imposed constitutionalism” is merely wishful thinking. There is no constitutionalism either in a more or a less demanding sense in Iraq. But there is now the second constitution in place. The first was ultimately, and in many of its details, imposed, and it was the highly constricting framework within which the second was made. See P. Dann and Z. Al-Ali, “The Internationalized Pouvoir Constitutant—Constitution-Making Under External Influence in Iraq, Sudan, and East Timor,” Max Planck Yearbook of United Nations Law 10 (2006).

3. M. Weber, Economy and Society (Berkeley: University of California Press, 1978), 1:50–51, where Weber explicitly discusses constitutional order in the sociological sense.

4. J. Habermas, Between Facts and Norms (Cambridge, Mass.: The MIT Press, 1996), 165–168. I stay close to Habermas in stressing the need for both persuasion and compromise, and his notion of unfair bargaining comes close to the notion of imposition here, but I prefer to distinguish the two ideas even more clearly. For my purposes, there is no need to distinguish ethical and moral bases of coming to an agreement.

5. But for a rare attempt outside those venues, see K. Makiya, “A Model for Post-Saddam Iraq,” Journal of Democracy 14, no. 3 (July 2003).

6. J. Rawls, Political Liberalism (New York: Columbia University Press, 1993); Habermas, Between Facts and Norms.

7. Bremer, My Year in Iraq (New York: Simon & Schuster, 2006), 269, 293; Crisis Group, “Iraq’s Transition: On a Knife Edge” (April 27, 2004). It is certainly wrong to say that this body “drafted the TAL in January–March 2004,” especially given the Crisis Group’s own description: “it functions by open invitation and virtually everyone turns up: a majority of the members of the IGC or their designated representatives.”

8. It is available in Professor Nathan Brown’s translation, along with his short commentary, at http://www.geocities.com/nathanbrown1/taldraftjan2004.html; L. Diamond, Squandered Victory: The American Occupation and the Bungled Effort to Bring Democracy to Iraq (New York: Holt, 2005), 140ff.; D. Phillips, Losing Iraq: Inside the Postwar Reconstruction Fiasco (Boulder, Colo.: Westview, 2005), 185.

9. See Crisis Group, “Iraq’s Kurds,” 3.

10. Bremer, My Year in Iraq, 292.

11. Crisis Group, “Iraq’s Transition: On a Knife Edge.”

12. I am not entirely convinced concerning Sistani’s overly great interest in religious issues playing a major role in constitutions, but all the sources indicate (usually on the basis of mere assumptions) that he was. We have no fatwa that concentrates on this problem.

13. “The TAL was mostly written by U.S. Government Lawyers and political appointees.” P. Galbraith, The End of Iraq (New York: Simon and Schuster, 2006), 139; “The TAL was largely the responsibility of two of Bremer’s assistants (dubbed ‘the west wingers’), one an extremely capable but relatively junior Foreign Service officer and the other a young political appointee from the Pentagon’s stable of neoconservative nation-builders. Imbued with grand ideas such as remaking the Iraqi judiciary with a U.S.-style Supreme Court, they apparently neglected to consult an international lawyer.” P. Galbraith, “Iraq: The Bungled Transition,” New York Review of Books, August 25, 2004. Actually, Roman Martinez, the neoconservative, was opposed to setting up a U.S.-style Supreme Court.

14. Phillips, Losing Iraq; Diamond, Squandered Victory, 142–144.

15. Nevertheless, they should be distinguished, because one was an Iraqi committee and the other basically an American one, as it is clear from the description of Ali A. Allawi, even though he and his nomenclature unfortunately do not clearly differentiate between the two entities. See A. Allawi, The Occupation of Iraq: Winning the War, Losing the Peace (New Haven, Conn.: Yale University Press, 2007). I have not had a chance to consult this important book, the first by an Iraqi on the occupation, before completing the penultimate draft of this chapter. But I found his work important enough to go back and indicate some places where he confirms my departures from previous interpreters, as well as a few points where he and I disagree. Admittedly, he is an insider and knows much more about the politics and culture of Iraq than I do. But he is not a constitutional or electoral expert, and he occasionally does not properly evaluate institutional choices in these areas. More importantly, he is a partisan, if a muted one, of a moderate religious Shi’ite perspective, and this colors some of his interpretations in a particular way, as I will try to indicate. This is not to say that he is uncritical of the religious Shi’ites. Far from it.

16. R. Chandrasekaran, Imperial Life in the Emerald City (New York: Knopf, 2006), 241, supports this description.

17. Nor an international one, according to Galbraith, The End of Iraq, but Chandrasekaran says S. Chalabi was an international lawyer (Imperial Life in the Emerald City, 241).

18. Diamond himself is a specialist in institutionalist design, but as I know from experience, the relevance of that knowledge does not make up for a lack of legal skills. As to Istrabadi’s knowledge of comparative constitutionalism, his experience seems to be restricted to memories of the making of Iraq’s first constitution and law-school knowledge of the problems of the Philadelphia Convention. Many of his comparative views are thus bizarre, though I do not exclude that as a working lawyer in the process he could not and did not have excellent ideas. We have Diamond’s testimony that he did. For his published views, see F. Istrabadi, “Reviving Constitutionalism in Iraq: Key Provisions of the Transitional Administrative Law,” in New York Law School Law Review 50 (2005–2006), where, for example, he defends the extremely difficult amendment rule of the TAL by saying that all constitutions have difficult amendment rules (300). Meanwhile, he omits a serious discussion altogether of the ratification rule or of the strange system of presidential veto in the document. Perhaps this product is unrepresentative because he was ambassador to the United Nations at the time, defending provisions that he may not have initially supported.

19. Chandrasekaran, Imperial Life in the Emerald City, 244ff.

20. Chandrasekaran admits that what he calls the Istrabadi-Chalabi draft did not address several of the most contentious issues among Iraqis, which is right, leaving them to be hashed out among council members, which is quite wrong regarding “the status of the Kurdistan Region,” as his subsequent presentation in fact shows. Ibid., 242–243.

21. This interpretation is now fully confirmed by Allawi, The Occupation of Iraq, 221–222, who relies on interviews with S. Chalabi.

22. Ibid., 243; Diamond, Squandered Victory, 141, 163.

23. Bremer, My Year in Iraq, 269. Without knowing these lines or his memoirs, I analyzed the making of the TAL in just these two tracks, state making and regime creation, in my forthcoming article “From Interim to ‘Permanent’ Constitution in Iraq.” See also S. Choudhry, who speaks about constitutive and normal constitutional politics to highlight the same contrast: “Old Imperial Dilemmas and the New Nation-Building: Constitutive Constitutional Politics in Multinational Polities,” Connecticut Law Review 37 (2005): 938.

24. Diamond, Squandered Victory, 162; Galbraith, The End of Iraq, 167. Allawi, The Occupation of Iraq, 221, states that Bremer himself went to Kurdistan three times.

25. Bremer, My Year in Iraq, 296ff.

26. Diamond, Squandered Victory, 171, 172; Allawi’s judgment on the Shi’a House’s role in the making of the TAL is devastating. According to him they produced no drafts and were uninvolved in part by their own choice until February. But they kept assuring Sistani they had everything under control. Allawi, The Occupation of Iraq, 221–222. According to his reliable views, Sistani considered the Shi’a caucus to have bungled the process of managing the TAL (223). Indirectly, Allawi seems to blame Adel Abdul Mahdi, the leader and organizer of the Shi’a House (205) who seems to have persuaded his colleagues not to present their own draft of an interim constitution (221). He does not say, as he did later, that Mahdi represented already a pro-Kurdish opinion among the Shi’a.

27. Galbraith, The End of Iraq, 163, writes quite persuasively why the leader should not directly participate in negotiations. The leader has a strong tendency to say “yea” while a good negotiator should enjoy saying “no.” In one context, this was an implied criticism of Talabani and Barzani. But it also applies to Bremer, who was a very poor negotiator, being either totally inflexible or prone to giving in to the other side in an unexpected and uncoerced manner.

28. Phillips, Losing Iraq, 187.

29. Diamond, Squandered Victory, 78, 162.

30. While I often disagree with the choices and conclusions of the latter, I am of course highly impressed by their professional talents and the depth of their political commitments. Aside from Galbraith’s already cited works, see B. O’Leary et al., The Future of Kurdistan in Iraq (Philadelphia: University of Pennsylvania Press, 2005). I note that Galbraith learned his negotiating skills with Richard Holbrook in the Bosnian conflict (not that Dayton was such a success—quite on the contrary), and O’Leary was highly expert in consociational forms of government and gathered around himself several specialists in comparative federalism.

31. This is clearly what happened, with the Governance Team at first being kept in the dark with respect to the Kurdish-American bargain and then expected simply to codify its results. Allawi, The Occupation of Iraq, 221–222.

32. Galbraith, The End of Iraq, 160–161. Cf. Zebari’s speech in Crisis Group, “Iraq’s Constitutional Challenge,” November, 13, 2003, revealing still an attitude that searches for devolution and autonomy.

33. “Iraqi Kurdish Claim for Federalism. A Kurdish-Arab Partnership,” originally in Arabic in Al-Ta’akhi, December 21, 2003. Available in English from www.KurdistanObserver.com.

34. Bremer, My Year in Iraq, 269; Diamond, Squandered Victory, 161.

35. Of course, Pachachi must have hoped both that representatives of the world’s one superpower could have bent to their will a landlocked, dependent people of five million with many enemies and that American interests in Iraq and the region required that this happen. He was entirely right, and we still must explain the astonishing weakness of the CPA vis-à-vis the Kurds, regardless of the sophisticated experts and clever strategy of the latter. Given Sistani’s challenge, the Sunni insurgency, the declining support for the occupation among Arabs, and the unfeasibility and unpopularity of military action even as a threat (since the Kurds could publicize such a threat), there was little the United States could immediately do to force the Kurds to quickly abandon basic positions. So, for example, when orders came from Washington that the Kurds had to give up their Kurdistan Regional Government, they could refuse and use the opportunity to renegotiate an earlier package they may have mistakenly agreed to. All the same, continuing to negotiate in the selfsame situation was a losing proposition for the CPA. They should have called the negotiations off and called the Kurds’ bluff: try to secede. We are going ahead with reorganizing Iraq with or without you.

36. Crisis Group, “Toward a Historic Compromise?” 3; Bremer, My Year in Iraq, 271.

37. On this point I learned much from my son Julian Arato, who has completed a history BA thesis on the French adventure in Belgium in 1792–1793, under the title “L’exportation de la liberté.” As his argument shows, the most fundamental point around which Belgian “statists” and “democrats” could not agree were the institutions of constitutional compromise that would negotiate a constitution. The available answers “estates general” or “national convention” already presupposed the substantive answers of constitutions that fundamentally divided the sides. This issue, substituting Kurds and Arabs or binationalists and civic nationalists for the Belgian sides, is even prior I think to Chaudhry’s fundamental and related inquiry about amendment rules. The answer must be, in the words of a Crisis Group paper, a negotiation format evolving “from full deliberations of Iraqi actors” and one that cannot be imposed by the Kurds, the Arabs, or the Americans. “Iraq’s Constitutional Challenge,” 13. But what if just such a deliberation were treated as an imposition by the Kurds? While not entirely untrue, that suggestion should have been rejected, nevertheless. It would have been legitimate imposition.

38. Diamond, Squandered Victory, 138, is clearly wrong regarding the Kurds.

39. Crisis Group, “Toward a Historic Compromise?” 1–2. O’Leary and K. Salih are in error when they suggest that only the original Arabic text of the November 15 Agreement contained the passages Talabani’s critics later objected to (“The Denial, Resurrection, and Affirmation of Kurdistan,” in The Future of Kurdistan, 30–31). The original English had the same passages (see chapter 3 above), and O’Leary and Salih are misled by the CPA’s subsequently publishing a summary version on its Web site.

40. Crisis Group, “Iraq’s Constitutional Challenge,” November 13, 2003, 15ff.

41. But see Diamond, Squandered Victory, 173 and elsewhere, supporting the case for Sunni weakness and exclusion.

42. As William Patterson asked in Philadelphia: “If a proportional representation were right, why do we not so vote here?” In J. Madison, Notes of the Debates of the Federal Convention (New York: Norton, 1987), 123.

43. There is an echo of this in Diamond, Squandered Victory, 60–61, though he is dealing with an international-law issue, namely the illegality of an occupying power transforming the internal territorial state structure during an occupation.

44. To be sure, this was only after the agreement on amendment and ratification rules for the TAL, which were not yet crafted at the time of the Brahimi-Sistani agreement on the elections. But in retrospect, UN officials realized that the whole TAL process “prejudices the final outcome and created a process that alienated Sistani and undermined Brahimi’s role.” ICG interview with a high UN official in April 2004. See “Iraq’s Transition: On a Knife Edge,” 26.

45. Galbraith, The End of Iraq, 161 and elsewhere.

46. Most recently: “Iraq’s Barzani Interviewed on Kurdish Affairs, Iranian Role, Ties with Israel,” BBC Monitoring International Reports, April 8, 2007; Crisis Group, “Iraq’s Constitutional Challenge,” 12–15; Crisis Group, “Iraq’s Kurds: Toward a Historic Compromise?” 20; and Galbraith, The End of Iraq. Galbraith is a liberal, but he reproduces the nationalist history and invariably agitates in the direction of independence. This could very well be the mainline Kurdish position among politicians and intellectuals rather than the more liberal and more integrationist (vis-à-vis Iraq) version represented by O’Leary. Compare the titles of their books. One speaks of the “end of Iraq,” the other of “the future of Kurdistan in Iraq.” The difference is not due only to their differing publication dates. During this period, it is tough to identify KDP and PUK positions around ethnic and liberal nationalist attitudes, though it is easy to say that the important independent Mahmoud Othman is more liberal and more friendly to being in Iraq than Mahmoud Barzani (KDP). Jalal Talabani (PUK), the current president of Iraq, may be somewhere between these poles. He was the one to reassure Turkey after Barzani’s recent provocation. I think, however, the divisions cut across the parties, and sometimes (or often) the same person can oscillate between them.

47. This supposedly answers Gellner’s criticism of the general ethnic nationalist claim, according to which it cannot be claimed that the world’s roughly eight thousand languages should all have a state. “The Kurds are an ethnicity and a very large one … so if anyone deserves a state they do, on justice-based grounds” (Galbraith, The End of Iraq, 148). But the point is that no ethnicities including the ones that already have states deserve them on justice-based grounds according to the general argument: “any two of them could share a just state … suitably organized, like the German, French and Italian Swiss e.g. do. France, Germany and Italy are not more just than Switzerland.” A. Stepan takes the trouble to answer another of Gellner’s arguments according to which two nationalisms in the state are impossible by proposing his (and Linz’s) concept of a state-nation, where a citizen could have multiple identities and allegiances, e.g., Spanish and Catalan. “Modern Multi-National Democracies: Transcending the Gellnerian Oxymoron,” in Arguing Comparative Politics (Oxford: Oxford University Press, 2001). We might say that O’Leary follows Stepan, while Galbraith is Gellnerian.

48. Barzani, “Iraqi Kurdish Claim for Federalism: A Kurdish-Arab Partnership.”

49. A Canadian model has been pushed for Kurdistan by people who are not ethnic nationalists of any kind. See John McGarry, “Canadian Lessons for Iraq,” in The Future of Kurdistan in Iraq. This is rather surprising given (1) the highly unusual spatial (political-geographical) environment of Canada, (2) the very different history of the origins and development of the Canadian state in an actual and ongoing process of federation (Iraq was born through forcible imperialist amalgamation and was always centralized), and (3) the very serious constitutional problems with the Canadian federation precisely since it has become asymmetrical, which are manageable most likely because of conditions 1 and 2. The last issue has just been highlighted in a highly interesting unpublished paper by S. Choudhry, “Does the World Need More Canada? The Politics of the Canadian Model in Constitutional Politics and Political Theory.” In my view, India would have been a better model for Iraq, though its high level of centralism would have been admittedly unrealistic for Kurdistan. A decentralized version of India, then.

50. O’Leary, “Power Sharing, Pluralist Federation, and Federacy,” in The Future of Kurdistan in Iraq, 52–59.

51. Makiya, “A Model for Post-Saddam Iraq”; Wimmer, “Democracy and Ethno-Religious Conflict in Iraq,” paper presented at the Center on Democracy, Development, and the Rule of Law, Stanford University, May 5, 2003; and Pachachi and Istrabadi according to Diamond, but not in the article the published on the TAL, where he avoided the subject. See Diamond, Squandered Victory, 167–168.

52. Makiya, “A Model for Post-Saddam Iraq.”

53. See both Wimmer, “Democracy and Ethno-Religious Conflict in Iraq”; and Makiya, “A Model for Post-Saddam Iraq.”

54. Wimmer, “Democracy and Ethno-Religious Conflict in Iraq.” This last position came close to the starting position of the American negotiators of the CPA. See O’Leary, “Power Sharing, Pluralist Federation, and Federacy,” 63ff.; O’Leary and Salih, “The Denial, Resurrection, and Affirmation of Kurdistan,” 32–34.

55. Stepan, “Modern Multi-National Democracies,” 195–197; “Toward a New Comparative Politics of Federalism, (Multi)nationalism and Democracy: Beyond Rikerian Federalism,” 359–360; and “Toward Consolidated Democracies,” 309, all in Arguing Comparative Politics.

56. Logically, on the basis of historical examples such as India and Spain, the position should accept ethnically and linguistically defined units, greater decentralization, and possibly asymmetry as well, perhaps more readily if introduced gradually. The problem in Iraq was that all these features were introduced from the outset.

57. Advocated by Istrabadi according to Diamond, Squandered Victory, 168.

58. O’Leary and Salih, “The Denial, Resurrection, and Affirmation of Kurdistan”; and O’Leary, “Power Sharing, Pluralist Federation, and Federacy,” both in The Future of Kurdistan in Iraq, xvii–xviii, 33–36.

59. The difference has to do with the weight one wishes to concede to an Iraqi identity. Where that weight is zero, one retreats to the ethnic nationalist position. Where it is equal for both Arab and Kurd, one has a symmetric version of Linz and Stepan’s state-nation. Where the weight of Iraqi is greater, one has the postnationalist position. Finally, where the weight of Arab and Kurd tends to zero, one has the civic nationalist position.

60. O’Leary and Saleh, “The Denial, Resurrection, and Affirmation of Kurdistan,” xvii.

61. O’Leary, “Power Sharing, Pluralist Federation, and Federacy,” 34.

62. Crisis Group, “Iraq and the Kurds: The Brewing Battle of Kirkuk,“ July 18, 2006; “Iraq and the Kurds: Resolving the Kirkuk Crisis,” April 19, 2007.

63. O’Leary et al., “Negotiating a Federation in Iraq,” in The Future of Kurdistan in Iraq, does not seem very insistent on consociationalism for the future, if it can get a rightly constituted senate-type chamber.

64. But he is also more willing than the ethnic nationalist to trade for more territorial independence in return for surrendering some consociational guarantees. O’Leary et al., “Negotiating a Federation in Iraq,” in The Future of Kurdistan in Iraq, 125. The real point may be that this position considers the two types of guarantees as functionally equivalent and interchangeable and not as logically requiring one another as O’Leary himself first implied in “Power Sharing, Pluralist Federation, and Federacy,” 52.

65. O’Leary, “Power Sharing, Pluralist Federation, and Federacy,” 57–58. Here the contrast with Galbraith is impressive, with the latter conjuring up Bush v. Gore to support his position! Galbraith, The End of Iraq, 139, 200. Galbraith does not seem to realize the importance of constitutional courts in many recent democratic transitions, especially the successful ones, nor does he see that despite the name “Iraq,” a civil-law country got a constitutional court—not the highest court of appeal in the ordinary federal system of courts.

66. T. Ali, Bush in Babylon (London: Verso, 2003), chap. 4. He quotes Pachachi, before the elder statesman’s entry into the IGC, as a typical Iraqi nationalist, expressing strong reservations about joining a U.S.-dominated advisory council of any kind, on 41.

67. Crisis Group, “Toward a Historic Compromise,” 17; Diamond, Squandered Victory, 128.

68. Ali, Bush in Babylon.

69. Diamond, Squandered Victory, 29; Istrabadi, “Reviving Constitutionalism in Iraq,” 292.

70. Diamond, Squandered Victory, 142. I met him in New York at a UNDP meeting in May 2006, when he was forced, in full public-relations mode, to defend indefensible things, such as the process of the making of the final constitution.

71. Chandrasekaran, Imperial Life in the Emerald City, 242.

72. Crisis Group, “Toward a Historic Compromise?” 2.

73. Ibid., 1–2.

74. Diamond, Squandered Victory, 162.

75. Crisis Group, “Toward a Historic Compromise?” 2.

76. “Iraqi Kurdish Claim for Federalism. A Kurdish-Arab Partnership.”

77. Crisis Group, “Toward a Historic Compromise?” 3.

78. Ibid.; Diamond, Squandered Victory, 161. This is where it makes immediate sense that it was the chairman Pachachi’s suggestion that Bremer go to Erbil. But two things were wrong with this: “one” representative going for the plurality of Iraq, and the American CPA being that representative.

79. Crisis Group, “Toward a Historic Compromise?” 4.

80. Diamond, Squandered Victory, 140.

81. See Brown’s translation at http://www.geocities.com/nathanbrown1/taldraftjan2004.html. O’Leary refers to a publication in Asharq-al Aqsat (February 14, 2004) that seems to have been untranslated, and he calls even this only a prior and not yet definitive version of the Pachachi draft. Prof. Brown too admits that the text he translated was later changed, and the text O’Leary comments on seems to be slightly different from the one I have. But ultimately the differences on the relevant issues do not seem to be earth shattering.

82. Crisis Group, “Toward a Historic Compromise?” 4.

83. O’Leary, “Power Sharing, Pluralist Federation, and Federacy,” in The Future of Kurdistan in Iraq, 59ff.

84. Ibid., 60.

85. Crisis Group, “Toward a Historic Compromise?” 3; Phillips, Losing Iraq, 188–189.

86. Bremer, My Year in Iraq, 271.

87. According to the Crisis Group’s information (“Iraq’s Kurds: Toward a Historic Compromise,” 3), an agreement for a status quo plus, namely the Kurdistan Region in return for deferring the Kirkuk question to other than some demographic adjustments, was already reached at this meeting. This seems to be incorrect in terms of both Bremer’s and Diamond’s separate recollections. The Crisis Group also misses the reversal that occurred with Washington’s temporary decision to eliminate the Kurdistan Region from the TAL.

88. Diamond, Squandered Victory, 162.

89. Chandrasekaran says (Imperial Life in the Emerald City, 242–243) that he became convinced the Kurds would never embrace an interim constitution without a Kurdistan Region and a regional government. Thus he decided to go against his bosses in Washington on this matter, constituting (he follows Diamond here) his “finest hour.” In my mind this is when he, as a supposed representative of the world’s last superpower, buckled, eventually dragging his bosses, who were right for once, with him. When this happened exactly I am not sure.

90. Galbraith, The End of Iraq, 163.

91. Ibid.

92. Chandrasekaran, Imperial Life in the Emerald City, 243.

93. Galbraith, The End of Iraq, 166–167.

94. O’Leary, “Power Sharing, Pluralist Federation, and Federacy,” 58–59; Crisis Group, “Toward a Historic Compromise?” 4.

95. O’Leary is much more anxious to hide the American role and stress compromise with the Arabs, apparently, which is a function of his greater commitment to staying within some kind of Iraqi federation. But the American role is clearly revealed on the CPA side by Bremer and Diamond, supporting Galbraith’s version.

96. For the full text: O’Leary et al., The Future of Kurdistan in Iraq, appendix 1: “Kurdistan’s Constitutional Proposal”; and Galbraith, The End of Iraq, appendix 1.

97. Galbraith, The End of Iraq, 166–167; O’Leary’s five-point summary is not always accurate, and point 5 especially is misleading in light of the veto that went into the TAL

98. Galbraith, The End of Iraq, 167–168.

99. Diamond, Squandered Victory, 166–167.

100. Interestingly, this pattern would continue for the permanent constitution too, where initially (for one parliamentary session) at least both regional powers and consociational participation would grow together. But now consociationalism was to have a sunset clause, and the plan was to shift to a second parliamentary chamber. It is another question whether that will be possible, since the constitution makers put off all the difficult questions concerning powers and type of representation.

101. First presented on February 13, the document was put on the KRG Web site only on February 20. R. Chandrasekaran, “Kurds Reject Key Parts of Proposed Iraq Constitution,” Washington Post, February 21, 2004.

102. Bremer, My Year in Iraq, 295; Diamond, Squandered Victory, 167ff.

103. “Confederations” would also have the right of unilateral secession that the Kurds did not seek, at least until the Vienna Convention on Treaties of 1968. After that treaty, the term “confederation” or “treaty organization” very closely expresses what the Kurds wanted for “Iraq.”

104. Diamond, Squandered Victory, 173; O’Leary et al., “Negotiating a Federation in Iraq,” 125.

105. Chandrasekaran, “Kurds Reject Key Parts of Iraq’s Proposed Constitution,” Washington Post, February 21, 2004.

106. Bremer, My Year in Iraq, 295.

107. Diamond, Squandered Victory, 168; TAL art. 53c.

108. This important point I added after reading Allawi, who stresses that the diagnosis is actually Sistani’s! See The Occupation of Iraq, 221–223. To be sure, he would not consider the debate about the role of Islam in the state a distraction (though he pays only relatively minor attention to it) and may deny that Sistani’s interest at this time was not at all focused on this issue. The fatwas, however, support my position. If Sistani thought of democracy as instrumental (209–210), and Allawi is in a better position to know that than I am, then it is the instrument he wanted to use rather than the IGC for establishing the kind of Islamic state he wanted.

109. Feldman, “Imposed Constitutionalism,” 877–879: It has been shown that the case he imagines to be unidirectional, Japan, was highly interactive before and after the making of the draft by the Government Section. See K. Shoichi, The Birth of Japan’s Post War Constitution (Boulder, Colo.: Westview, 1997). The correct formula for Iraq is: some parts were imposed after bargaining with the Kurds alone, other, less important parts were not, and as I show below, the whole was also imposed.

110. “Iraq’s Hidden War,” Newsweek, March 7, 2005.

111. “The Civil Opposition In Iraq”: http://www.ww3report.com/iraq1.html. 

112. See statement of January 14, 2004.

113. See letter of January 23, 2004.

114. Yochi J. Dreazen, “Long Way From Indiana,” Wall Street Journal, April 12, 2004.

115. CPA Order 96, 4 (3).

116. Bremer, My Year in Iraq, 295.

117. Ibid., 293; Diamond, Squandered Victory, 172.

118. Bremer, My Year in Iraq, 293. There is little evidence outside of Bremer’s claims that it was the Ayatollah Sistani who was driving the symbolic demands about Islam and thus distracting the assembly. Even Bremer indicates that he was softening on the role of Islam and tended to always focus on his political demands (e.g., 294). Sistani never showed the slightest interest in the ability of Shi’ite provinces to form regions, and late in the game, during the making of the permanent constitution, he seemed to oppose this idea when it emanated from SCIRI.

119. Diamond, Squandered Victory, 171–172.

120. It may have been the Drafting Committee that managed to take this provision out of the draft of the TAL, at the urging of the weak secular postnationalist or Iraqi nationalists, and thus it was easy to restore.

121. Feldman, “Imposed Constitutionalism,” 878–879.

122. Bremer, My Year in Iraq, 295–296; Diamond, Squandered Victory, 172.

123. Bremer, My Year in Iraq, 299.

124. The idea that in this form the religious Shi’ites did not object to the provision, as claimed by Galbraith, The End of Iraq, 144, makes little sense, since it also diminishes the freely elected assembly. Moreover, it is unsupported anywhere else. There is no evidence the provision was ever discussed. It is another matter that after the actual ratification rule for the permanent constitution was enacted some Shi’ites might have preferred the original Kurdish proposal. But even here I see little evidence to support that.

125. Bremer, My Year in Iraq, 296.

126. Galbraith, The End of Iraq, 140. It seems absurd to claim, moreover, that the Kurds were silenced during the IGC discussions. On the principles of negotiations, see O’Leary et al., “Negotiating a Federation in Iraq,” 118.

127. Bremer, My Year in Iraq, 296.

128. According to Bremer, the “they” were the Kurds (My Year in Iraq, 297). According to Galbraith, Bremer and (Talabani’s deputy) Barham Salih (PUK) together cooked it up (The End of Iraq, 144). According to Diamond, it was Rowsch Shaways (KDP), Barzani’s deputy. Apparently, there is an inner Kurdish feud concerning the authorship of this admittedly brilliant idea, fateful for the course of everything that followed.

129. Advocates of the Kurds, perhaps a little embarrassed about the fact, tend to disagree. See O’Leary’s two inconsistent statements in “Power Sharing, Pluralist Federation, and Federacy,” 77, and in O’Leary et al., “Negotiating a Federation in Iraq,” 122–123, the first of which is the public-relations line, while the second involves more careful analysis and comes to the same conclusion I do. The issue was not only that the Kurdistan Region had three provinces, since there were three Sunni-majority provinces as well. Still, Galbraith is wrong to claim that this was therefore a Kurdish and Sunni veto both, because of two small details: the default position in case of a veto and the number two-thirds. As to the default position, if the constitution was vetoed, the TAL favored the Kurds but not the Sunni. Thus the Sunni had little to gain from a veto except to go from worse to bad. The two-thirds figure is even more revealing. Had the provision allowed a majority of voters in three provinces to reject a constitution, that would have been a Sunni-Kurdish veto clearly. But requiring a two-thirds qualified majority had a different effect. That figure was easy to achieve in the Kurdish provinces, as O’Leary says, but very difficult in the third of the Sunni-majority provinces, Nineveh, for two key reasons: this province had a large Kurdish minority and a significant chunk of it was administered de facto and under the TAL by the Kurdistan Regional Government. Thus Kurds controlled part of the referendum in Nineveh. Galbraith’s idea that the Shi’ites objected to the veto clause only because Sunni Arabs also could veto the constitution is unexplained, wrong, and lacks support in any Shi’ite statement. Sistani’s argument, restated by Galbraith (The End of Iraq, 144–145), based on what the cleric took to be a subversion of the concession of an elected assembly, was quite sufficient for Shi’ites to oppose the provision.

130. Galbraith, The End of Iraq, 144.

131. This is has been my oft-repeated argument and the thrust of O’Leary’s analysis as well, e.g., Arato, “Interim Imposition” and “Empire’s Democracy”; and O’Leary et al., “Negotiating a Federation in Iraq,” 120–123.

132. Bremer, My Year in Iraq, 298–301.

133. I don’t know what the reason is for this discrepancy. But the two stories complement one another regarding the issue at hand, the introduction of the ratification rule to the IGC. Indeed, Diamond has deduced, before the appearance of the Bremer memoirs, that the “brilliant tactical maneuver” was “planned long in advance” (Squandered Victory, 174). How long in advance can be surmised differently according to whom one has in mind as the planner of the strategy of getting this provision adopted, Bremer or the Kurds, and whose scenario, Bremer’s or Diamond’s, one accepts. If we assume the Kurds and Diamond’s scenario, the strategy would have been planned very long before. If Bremer came up with the final tactic of how to impose the thing, then it would have been just before the plenary of the IGC, especially given his shorter timeframe. Even then, the ratification rule had to be thought out well in advance. Incidentally, the default rule, namely falling back into the TAL in case of failure of ratification (61e), was probably a lawyer’s device already in the TAL before the new ratification rule was put in, but it gained new importance only with this latter rule, which would make such failures much more likely.

134. Diamond, Squandered Victory, 173. Diamond’s account was available when Bremer published My Year in Iraq. Diamond is a nonperson in Bremer’s account: his book is not referenced, and there is not one single word about the different chronology he presents. This reminds me of old Stalinist practice.

135. Diamond, Squandered Victory, 173–174.

136. I owe this to a personal communication from Mr. Haider Hamoudi, who was an expert legal advisor to the IGC during this period.

137. Allawi, The Occupation of Iraq, 223 and n. 120 on 477. Elsewhere (412) he identifies Mahdi as an advocate of a pro-Kurdish position within the Shi’ites.

138. See, e.g., O’Leary, “Power Sharing, Pluralist Federation, and Federacy,” 63ff. O’Leary and Salih, “The Denial, Resurrection, and Affirmation of Kurdistan,” 32–34.

139. P. Cockburn, The Occupation (London: Verso, 2006), stresses this all-important factor.

140. See “Sistani v. Bush” and chap. 3, above, as well as Diamond, Squandered Victory, 160–161.

141. See Istrabadi, “Reviving Constitutionalism in Iraq.”

142. Ghazi Yawar, a Sunni, later the transitional president, called it a “dangerous land grab,” but only when it was still a Kurdish proposal, on February 20, 2004. See Chandrasekaran, Imperial Life in the Emerald City.

143. Thus it is excessive modesty on the part of Galbraith to claim that the TAL was written by the CPA’s lawyers, since the KRG’s advisors are obviously responsible for whole chunks of it!

144. Galbraith is shockingly open on this point (The End of Iraq, 135–136, 168), sometimes forgetting that the Kurdish “national” interest may not be the American one. The dismantling of all militias and the keeping of all prior agreements may have been exactly such matters.

145. This has been traditional advice since the British, who, since Lord Curzon’s performance of the Lausanne Congress, have followed it themselves. No one ever wants territory in Iraq for the oil. See P. Sluglett’s fine book Britain in Iraq: Contriving King and Country, 2nd ed. (New York: Columbia University Press, 2007), 53, 71ff., esp. 73.

146. Crisis Group, “Iraq’s Kurds: Toward a Historic Compromise,” 18; O’Leary et al., “Negotiating a Federation in Iraq,” 129.

147. Galbraith, The End of Iraq, 167–168.

148. Crisis Group, “Iraq’s Kurds: Toward a Historic Compromise?” The researcher (or at least one of them) for this article seems to have been Sophia Wanche, who has also written for the openly pro-Kurdish O’Leary volume. I mention this because there is simply no major discussion available today that would reconstruct the constitutional negotiations from an Arab or Iraqi nationalist or a postnationalist point of view. I think the Crisis Group should have been more careful with the selection of a team to take up issues that were so divisive on these lines.

149. O’Leary, “Power Sharing, Pluralist Federation, and Federacy,” 60.

150. These acts Galbraith justifies, as we will see below, by the thesis of the supposed abrogation of the TAL.

151. O’Leary, “Power Sharing, Pluralist Federation, and Federacy,” 60.

152. Ibid., 51.

153. Stepan, “Modern Multi-National Democracies,” 191.

154. Ibid., 79.

155. Traditionally, the right of secession would have been included among the distinctions of confederations from federations, but after the Vienna Convention on the Law of Treaties (January 27, 1969; 1980 entry into force), members of treaty organizations (e.g., the European Union) do not have the right of unilateral abrogation or secession unless the treaty provides for it explicitly. Granted, it would be possible to define a confederation as a treaty organization with the right of unilateral abrogation written in, though one wonders how many such treaties would be agreed to (United Nations, treaty series, 2005, Part V., art. 54–57).

156. O’Leary, “Power Sharing, Pluralist Federation, and Federacy,” 68–69.

157. Ibid., 52–60.

158. Ibid., 56–57.

159. O’Leary et al., “Negotiating a Federation in Iraq,” 125.

160. Diamond, Squandered Victory, 167–168.

161. Sometimes sources simply should not be believed, like Adel Abdel-Mahdi of SCIRI: “The TAL was a turning point. It’s when Bremer stopped acting like a dictator.” Chandrasekaran, Imperial Life in the Emerald City, 244. That is unbelievable in light of Mahdi’s refusal to sign and the whole subsequent Shi’ite response to the TAL. But it is consistent with the depiction that Mahdi was for a long time an ally of the Kurds within the Shi’a House.

162. Arato, “Interim Imposition,” and chap. 2, above.

163. This division of roles is not absolute. The governmental and especially state structure adopted for the interim may represent facts that will be very difficult to change for the final constitution. The amendment rule of the interim constitution, on the other hand, may contribute to the fluidity or rigidity of the interim arrangements themselves.

164. O’Leary et al., “Negotiating a Federation in Iraq,” 119–123, where they treat the second and third rules. I have discussed all three (amendment, ratification, and the failsafe rule) in “Interim Imposition”; “Empire’s Democracy,” 232; and in “From Interim to ‘Permanent’ Constitution in Iraq.” O’Leary et al.’s analysis of the default rule (my failsafe rule), while fully convergent, is more detailed than mine.

165. Arato, “Interim Imposition.” Niklas Luhmann in his legal sociology spoke of normative learning: how not to learn in the face of the first disappointment. This dimension is especially important for constitutions if one is to have the two-track structure of constitutionalism rightly stressed by Bruce Ackerman. Nevertheless, under a new constitution there must also be the opportunity to correct obvious deficiencies unanticipated by the framers, as in the case of the U.S. election of the president and vice president on a single ballot, which was corrected by the Twelfth Amendment of 1804. In this sense, an interim constitution properly constructed extends the two-track structure to constitution making itself, by providing for normal rather than extraordinary alteration for a period of time. See Arato, “Constitutional Learning,” Theoria 106 (April 2005), where I draw on the competing perspectives of Holmes and Ackerman.

166. Istrabadi, “Reviving Constitutionalism in Iraq,” 300.

167. Since the makers of the interim constitution (and their American advisers) forgot (or deliberately omitted) the elementary requirement to enshrine the amendment rule if they wished to make anything else unchangeable, everything in the TAL can be changed after free elections legally, using a two-step procedure. The same mistake was made by the authors of Article V of the U.S. constitution, but at that time no one knew whether self-referring rules could be valid or not. See the famous article of H. L. A. Hart, “Self-Referring Laws,” in Essays in Jurisprudence and Philosophy (Oxford: Oxford University Press, 1983); and Peter Suber, The Paradox of Self -Amendment (New York: Peter Lang, 1990). Since the making of the Grundgesetz, which has enshrined its amendment rule protecting unchangeable provisions, similar in fact to many such sections of the TAL, textbook knowledge of amendment rules would require following the German example.

168. I am inferring simple majority, since nothing else is stated. If it is interpreted as a law, the presidential council would have veto power over the draft submitted to the people, which could mean, as I will discuss below, either veto by one or only all three members. But it could be a special law where referenda replace the executive, which is not mentioned by the very poorly drafted text in this context.

169. Nathan Brown, whom I greatly respect, disagrees with my claim that the rejection of the new constitution and the preservation of the TAL could occur an indefinite number of times, because, according to him, the TAL does not allow the extension of the time limit of the interim period by amendment (art. 3a). But the indefinite number of failed ratifications and preservation of the TAL requires no amendment, only following the plain text of the TAL (art. 61e), which does not limit in any way the number of times this can occur.

170. As I said, O’Leary’s term “default” is more exact than my “failsafe,” but I reject his term “federal” for the ratification rule, which could be called with a little more justification a confederal rule that even John C. Calhoun would have preferred to Article V, which gave quite sufficient protection to the slave interests (three out of eighteen in Iraq versus four out of thirteen in the United States could veto amendments, and four out of thirteen could veto ratification, according to Article VII, which was still a treaty rule). Formally, O’Leary’s point is that the numbers do not matter, because a confederation (like the United States in 1781) requires unanimity. Here one Kurdish state could not, like Rhode Island, veto. Thus formally he is right: it is not a treaty or a confederal rule. But in substance, one Kurdish province was exactly the same as three. To the Kurds, this was in effect, or functionally, a ratification rule of a treaty, just as the Kurdistan Chapter’s rule would have been. The only difference was that the new rule gave the Kurds even more negotiating power. Substantively less than a confederal rule, formally more than one!

171. The fact that at the last minute the National Assembly (in July or August 2005) sought to change the rule from a two-thirds majority of those voting to a two-thirds majority of those registered also supports my contention that the regulation was crafted by demographics. Suddenly it was realized that passion on the Sunni side might in Nineveh counteract demographics. However, the last-minute change had to be rescinded, and demographics or local Kurdish control over parts of Nineveh triumphed. See my “From Interim to ‘Permanent’ Constitution in Iraq” and chap. 5, below.

172. O’Leary, “Power Sharing, Pluralist Federation, and Federacy,” 80, is very open about this. In fact, the Kurdish governorates were regarded by the Kurdish side as Trojan horses of the integrationists or territorial federalists. See O’Leary and Salih, “The Denial, Resurrection, and Affirmation of Kurdistan,” 33.

173. If the Kurds, as Galbraith claims, sent Bremer Article VII of the U.S. Constitution and this is what helped him change his mind on the Kurdistan veto (i.e., art. 61c of the TAL), then Bremer did not understand (1) the difference between 9/13 and 15/18 needed to ratify and 4/13 and 3/18 able to block and (2) the difference between blocking ratification for Kurdistan (Kurdistan Chapter) and for Iraq as a whole (TAL art. 61c). Galbraith, “Kurdistan in a Federal Iraq,” in The Future of Kurdistan in Iraq, 275.

174. O’Leary et al., “Negotiating a Federation in Iraq.”

175. Arato, “Interim Imposition.”

176. A point that the more sophisticated O’Leary fully appreciates, while Galbraith downplays it.

177. A. V. Dicey, Introduction to the Study of the Law of the Constitution, 8th ed. (London: Macmillan, 1915), 78–81; Hart, Concept of Law (Oxford: Oxford University Press, 1961), chap. 4.

178. M. Troper, “L’Europe politique et le concept de souveraineté,” which provides a fourth dimension of sovereignty, imputation to a collective subject, next to Carré de Malberg’s three: negative state sovereignty as the power that has no internal equals or external superiors, sovereignty in the sense of specific powers, and the organ exercising the latter. See also Kelsen, General Theory of State and Law (Cambridge, Mass.: Harvard, 1945), 261.

179. S. Choudhry, “Old Imperial Dilemmas and the New Nation Building,” 939, 941ff.; “Does the World Need More Canada?” 25ff.

180. That would have meant five governorates needed for a veto; in effect, two minorities could veto the constitution of the majority but one could not.

181. Arato, “Sistani v. Bush,” “Interim Imposition,” “Empire’s Democracy”; Diamond, Squandered Victory, esp. 240; Galbraith, The End of Iraq, 140ff.; O’Leary et al., “Negotiating a Federation in Iraq,” 117–118. But see Chandrasekaran, Imperial Life in the Emerald City, 243–244. To be fair, almost all these authors consider the TAL in one respect or another to have been an important achievement. To me it was mostly a failure.

182. Arato, “Sistani v. Bush,” 175ff.; Arato, “Interim Imposition,” 35–40.

183. See Diamond, Squandered Victory, chap. 7: “Sales Effort.”

184. Galbraith, The End of Iraq, 140, stresses the absence of “public comment and input,” not realizing why that would have been impossible and what that would have meant for the Kurds; O’Leary et al., “Negotiating a Federation in Iraq,” 117–118, speak of “negotiated and agreed without any pretence of transparency, serious public education, or extensive public education.” Same question to them. Moreover, did the permanent constitution and its making involve any of these things? They predicted it would, but when it did not they missed the opportunity to say so (119).

185. Diamond, Squandered Victory, 175.

186. Admitted by O’Leary and also inconsistently even by Galbraith.

187. This reminded me of the probably uncoordinated strategy of the Hungarian opposition, whose moderates signed the round-table agreements in October 1989, with the radicals not signing but without exercising their veto power. Subsequently, they proceeded to change the agreement through a popular referendum, and both sides of the opposition wound up winning: the radicals their constitutional objectives and the moderates the first free elections.

188. That in my view was up to the CPA until the transfer of sovereignty (versus Diamond, Squandered Victory, 177, who writes that there was no mechanism for this. After all, the annex was subsequently added on the same bases, though without the revisions sought by the Shi’ites).

189. Diamond is right to notice the majoritarian consequences of the claim, but he is wrong to say that accordingly the TAL does not take effect until it is approved by the national assembly’s majority. Sistani does not claim that the provisional government until the elections cannot be bound by the TAL, under which it would be set up. Only free elections rupture the continuum between the TAL’s rules and a political body’s rights.

190. Bremer, My Year in Iraq, 311.

191. About which Bremer is deafeningly silent, but see Diamond, Squandered Victory, 248–249.

192. The future National Assembly will be shackled by many restrictions that will prevent it from undertaking what it sees as congruent with the interests of the Iraqi people. A nonelected council (the Interim Governing Council), in coordination with the occupying authority, foisted upon the future National Assembly a “strange” law to administer the country during the transitional phase. It also dictated—and this is most dangerous—specific principles, rules, and mechanisms with regard to the writing of the permanent constitution and organizing a referendum. Crisis Group, “Iraq’s Transition: On the Knife’s Edge,” 25. The rest is paraphrased: “the elections on which Sistani spent so much energy will lose a great deal of their meaning and will be of little use and the three member Presidency council enshrines sectarianism … thus auguring a possible partitioning of the country.” While the Crisis Group leaves this out, it seems that Sistani also made the point that Iraqi government thus constructed would be able to decide very little, inviting interference by the occupier. He warned in his letter that he would boycott a coming visit to Baghdad by Brahimi, refusing to “take part in any meetings or consultation” conducted by him or his emissaries unless the United Nations offered guarantees that it would not endorse the interim constitution. John F. Burns, “The Struggle for Iraq: Shiite Ayatollah Is Warning U.N. Against Endorsing Charter Sponsored by U.S.,” New York Times, March 23, 2004.

193. Thus there is no evidence that this is the issue that is moving him, as P. Galbraith claims: “Iraq: The Bungled Transition,” New York Review of Books, September 23, 2004.

194. Diamond, Squandered Victory, 254, explicitly admits this but forgets his own role in the relevant moves. See also Crisis Group, “Iraq’s Transition: On the Knife’s Edge,” 26.

195. Terence Neilan, “U.N. Envoy Urges Iraqis to Give New Leaders a Chance,” New York Times, June 2, 2004: “Mr. Brahimi struck a mildly surprising note when, in answer to a reporter’s question, he referred to the American occupation administrator, L. Paul Bremer III, as ‘the dictator of Iraq.’ ‘He has the money,’ he said. ‘He has the signature. Nothing happens without his agreement in this country.’”

196. Brahimi speaking: “I welcome the clarification made recently by Ambassador Bremer who, among other things, stressed that ‘the Interim Government will not have the power to do anything which cannot be undone by the elected government which takes power early next year.’ The fact is that the TAL is exactly what it says it is, i.e., a transitional administrative law for the transition period. It is not a permanent Constitution. Indeed, it is not a constitution at all. The Transitional Law (or any other law adopted in the present circumstances) cannot tie the hands of the National Assembly which will be elected in January 2005 and which will have the sovereign responsibility of freely drafting Iraq’s permanent constitution.” Security Council 4952nd Meeting, April 27, 2004 (UN News Center). I cannot tell if Brahimi deliberately or inadvertently confused “interim government” in Bremer’s formulation with “Transitional Administrative Law” in his own. As to their ability to bind, the two were not the same. An interim executive obviously cannot bind a constitutional assembly. An interim constitution, as in South Africa, could, at least in principle. The fact that he refused to call it a constitution did not change much in the case of a document that definitely tried to regulate the state structure, the whole governmental process, and the constitution-making process under the National Assembly. To avoid purely majoritarian implications, Brahimi again quoted Bremer: “Iraqi unity requires a constitution that all of Iraq’s communities can support. It is a fundamental principle of democracy that the constitution should provide for majority rule but also protect minority rights.”

197. Informed Comment, Juan Cole’s Web site. My emphasis.

198. Phillips, Losing Iraq, 10, 208, speaks of the Bush administration’s decision to abrogate the TAL, which is sheer fiction, I think.

199. Under IVth Hague Convention (art. 43) 1907 (affirmed by Fourth Geneva Convention, arts. 54–56, 64).

200. Galbraith, The End of Iraq.

201. Galbraith, “Iraq: The Bungled Transition”; the later book by Galbraith, The End of Iraq, is less clear about what it wants to say (141, 146), probably for obvious reasons: the TAL was not abrogated and it served the Kurds very well in its somewhat doubtful status.

202. Galbraith, “Vistas of Exits from Baghdad,” in The Future of Kurdistan in Iraq, 295–296.

203. Ibid.

204. Galbraith, The End of Iraq, 168.

205. The argument confuses morality and legality. See Kelsen on unconstitutional law in General Theory of State and Law, 155–157, where he shows that laws must be regarded as valid if legislated by a proper organ until they are declared unconstitutional, again by a proper organ. In relationship to the issue at hand, the Iraqi Federal Supreme Court could not be this second type of organ, because it is set up by the very law it is supposed to declare invalid, the TAL. However, Galbraith’s challenge is international, based on international law, so it would have to be an international court or some other instance that would have to invalidate the TAL according to his reasoning. For political organs to do so in Iraq would require revolutionary acts, or coupes d’etat, or simply illegal resistance to parts of the law. All the latter may be legitimate, but they are not legal.

206. As I have argued in “Empire’s Democracy,” a literal reading of the Hague 1907 requirement would be nonsensical in a case where a dictatorship like Saddam’s is overthrown, whether in a legal or illegal war. One cannot simply preserve the laws and practices of a dictatorship. The spirit of the law is another matter. Now, my argument is supported by Jean Cohen (cited in chap. 1), who goes beyond it by distinguishing between the Hague stress on governmental sovereignty and the Geneva stress on popular sovereignty. The spirit of these regulations would now entail enabling measures by the occupying power for popular sovereignty to become effective. This was not what was done by the American occupiers, and even UN SC Res. 1483 and 1516 facilitated the objectives very unclearly and inconsistently.

207. D. Filkins, “Iraqi Leader Says He’ll Respect Kurd Desire for Autonomy, at Least for Now,” New York Times, June 10, 2004. Both sides saw the issue quite clearly, but the Kurdish side seemed to have accepted Allawi’s affirmation of the TAL and feared only what the freely elected assembly might do. That they would break with the TAL was always a possibility, certainly not reduced by the way article 61c was imposed. See also the follow-up article by S. R. Weisman, “The Constitution: Kurds Find U.S. Alliance Is Built on Shifting Sands,” New York Times, June 11, 2004, where charges later made by Galbraith and O’Leary are made by Kurdish politicians but where the spokesman for the U.S. State Department downplays the significance of 1546 not mentioning the TAL. Interestingly, the same article mentions statements by Diamond and Feldman that were at variance with other positions they have taken. Diamond here speaks of a Kurdish overreach, of which there is no sign in his thorough book, while Feldman points out that the United States seems to be afraid of Sistani. At a conference a few weeks before (at the Carnegie Institute in New York City), he claimed that it was Sistani who overreached himself with his appeals to the United Nations.

208. Galbraith, “Iraq: The Bungled Transition”; “Vistas of Exits from Baghdad,” 296.

209. Order of Safeguarding National Security, July 6, 2004, whose article 11 declares that the TAL cannot be abrogated “in whole or part,” while other articles, to be sure, suspend TAL protections in many areas. Also, article 12 declares: “No article in this order can be used to delay elections according to the timetable specified in the Transitional Administrative Law.” The order was declared under the authority of the TAL (the provisions of section 2 of the TAL annex) as indeed countless other orders of the Allawi government. See http://www.washingtonpost.com/wp-dyn/articles/A33496–2004Jul7.html and http://www.nahrain.com/d/news/04/07/07/nhr0707b.html.  I do not believe that a constitution could be directly enacted as an executive “order with the force of law.”

210. Galbraith, The End of Iraq, 141, which of course contradicts O’Leary’s claims concerning article 61, which has become according to him “legally inoperative.” Galbraith, “Vistas of Exits from Baghdad,” 296.

211. D. Filkins, “Iraqi Leader Says He’ll Respect Kurd Desire for Autonomy, at Least for Now,” New York Times, June 10, 2004.

5. The Making of the “Permanent” Constitution

1. T. Marshall and L. Roug, “A Central Pillar of Iraq Policy Crumbling,” Los Angeles Times, October 9, 2005.

2. Crisis Group, “Unmaking Iraq: A Constitutional Process Gone Awry,” September 26, 2005.

3. Galbraith, The End of Iraq (New York: Simon and Schuster, 2006), 170, 203–204.

4. Most surprisingly perhaps, Sieyès, in “What Is the Third Estate?” in Political Writings and “Préliminaire de la Constitution” (1789), in R. Zapieri, ed., Ecrits Politiques (Paris: Gordon & Breach, 1985). The contrast was already available in the U.S. state constitutions, well known in France, which were all made by freely elected assemblies such as those of Pennsylvania and Massachusetts, though even here Jefferson, in Notes on Virginia, objected in the case of Virginia that the relevant “convention” was not elected for that specific purpose.

5. Of course, the way a particular case adheres to the norm still varies. It is still possible for the freely elected assembly to be either one specially elected for the purpose or an ordinary parliament that merely uses the existing amendment rule for a stealth round of constitution making, as in Hungary in 1990. The latter represents a boundary case still within the model, but only marginally so.

6. The popular participation and public openness some interpreters have missed in some of the first stages of the new paradigm in different countries could in fact come in either stage. There is no reason why the elite participants of the first stage could not organize extensive public communications around the process, or even consultations with relevant popular groups outside the process. When they do not do so, as in Iraq’s first stage, there is little reason to predict such a development in the second stage. O’Leary et al. did in “Negotiating a Federation in Iraq,” in The Future of Kurdistan in Iraq (Philadelphia: University of Pennsylvania Press, 2005), 119ff. The American role in the first stage, which could not be made public, makes for a potential difference, which here took the assumption that the second stage would be free of such interference. But there were other looming reasons why the second stage would not be more public or participatory.

7. Even in Hungary, the amendments of 1990, which left much of the supposedly interim constitution in place when the pacting parties had a chance to replace it, helped legitimate the whole package.

8. As Ali Allawi, ex-minister under the interim and transitional governments, writes in an important new book, Sistani’s prestige was at this time at an all-time high because of his successful attempt to defuse a confrontation in Najaf between the Ayad Allawi interim government and Moqtadah al Sadr: A. Allawi, The Occupation of Iraq: Winning the War, Losing the Peace (New Haven, Conn.: Yale University Press, 2007), chap. 18. I have been able to fully consult and refer to this important book only in the rewriting of this chapter, but I have used it occasionally to check more speculative hunches and projections I made earlier. Those earlier references were noted.

9. A. Allawi is thus wrong when he ascribes the rule to the CPA’s initiative, though it is quite possible that they argued for it in the manner he suggests. Ibid., 335.

10. Ibid.

11. However, in December 2005, territorial lists were used and the number of parties receiving seats was exactly the same during both elections, namely twelve.

12. The rule chosen, with a cutoff at 5 percent, could have been used to produce both a legislative and a constitutional assembly, and a census could have been still avoided.

13. This is why I argued for the latter; see A. Arato, “Sistani v. Bush: Constitutional Politics in Iraq,” Constellations 11, no. 2 (2004): 181; it is a point still curiously missed by Allawi, even though the problem was remedied, consciously, for the second elections, as he notes (The Occupation of Iraq, 440). It is on points like this that he reveals an implicitly partisan and polemical attitude.

14. Though it may not happen if the insurrection chose to encourage it, as it did, interestingly enough, in December 2005.

15. Diamond’s short analysis (Squandered Victory: The American Occupation and the Bungled Effort to Bring Democracy to Iraq [New York: Holt, 2005]) fully corresponds to mine: cf. Arato in Informed Comment (http://www.juancole.com). Allawi says that Diamond was against a multidistrict rule at the time because of his desire to limit the number of seats attained by big Islamic parties. See Allawi, The Occupation of Iraq, 485 n. 1).

16. M. Ghazi, “Forty-Seven Bodies Boycott Iraqi Elections,” World Crisis News Web: The Daily Crisis News, November 18, 2004. Of the forty-seven, only the AMS (the Association of Muslim Scholars) was truly important, but they were followed eventually by all important Sunni organizations.

17. Allawi, The Occupation of Iraq, 346.

18. M. Howard, “Main Sunni Party Pulls out of Iraqi Election,” New York Times, December 28, 2004.

19. It is much less plausible to argue that the Sunni boycott came about because they anticipated that more than two-thirds of the seats would be in the hands of the Shi’ite and Kurdish parties that would then be able to dictate the terms of Iraqi politics, including the constitutional settlement (Allawi, The Occupation of Iraq, 390). The claim is unconvincing first because it was impossible to clearly foresee the electoral results; in particular, Allawi’s Iraqi List was expected to do much better. Second, even as far as the actual results go, the over two-thirds received by the UIA and the Kurds in both votes and seats was attained only because of the boycott. In the second elections, with Allawi performing even more poorly but with the Sunnis participating, the combined vote of the two lists slipped to 63 percent, and only the less proportional electoral rule brought it to slightly under 66 percent.

20. I agree with Ali Allawi that in the end the results of the boycott were disastrous, but that was only because the co-opted Sunni participants in the constitution-drafting process were in the end not treated seriously by the electoral winners. I think this was neither predetermined nor wise. There is no reason to assume that they would have treated a minority in parliament any better. Allawi’s idea that the Sunnis, instead of boycotting, should have voted for the Iraqi List of Iyad Allawi (The Occupation of Iraq, 390) is right on the substance but very unlikely politically and symbolically, since the prime minister was so obviously the candidate of the American occupiers.

21. Ibid., 390–391.

22. Crisis Group, “Iraq: Don’t Rush the Constitution,” 1, refers to the text of a governance agreement (“Foundations and Principles Agreed by the UIA and the KLC Concerning the Operation of the Interim Government”) between the UIA and the Kurdistan Coalition List on April 13, 2005, that expressly confirmed the TAL.

23. The agreement could be interpreted as a defeat of Sistani, who had long campaigned against the straightjacket of the TAL. Formally it was not, however, since now a freely elected assembly would be confirming the TAL under the governmental agreement. (Actually, this never happened.) And it would not be a defeat materially if the Kurds were ready to concede all that Sistani hoped to achieve through democratic power. All the same, the agreement expressed a power shift from Sistani to the pro-Kurdish wing of the UIA, one that may have already been involved in allowing article 61c of the TAL to pass when it was first introduced, an event Sistani regarded as Shi’ite bungling.

24. They could be described as “court Sunnis” by their external opponents. Allawi, The Occupation of Iraq, 399.

25. Galbraith, The End of Iraq, 193ff., maintains that Khalilzad merely inherited decisions for Sunni inclusions made before his arrival by Secretary Rice (who made a key visit to Baghdad in May) and others, which “complicated his task.” Whatever was his task then? Galbraith just said so: the negotiation of a tripartite peace treaty. Without the Sunni? Ali Allawi, though he gets the date of Khalilzad’s arrival (June 21 instead of “May”) wrong, seems to be more on target when he identifies the whole project with Khalilzad’s mission and writes: “It was the prime mandate of Khalilzad to increase the participation of Sunni Arabs in the political process, and in particular in the constitutional talks.” The Occupation of Iraq, 399, 397–398. Galbraith, however, had direct personal contact with Khalilzad, especially during the all-important negotiations in the so-called Leadership Council. He may be reflecting on the ambassador’s relatively easy abandonment of the Sunni positions in this process, projecting this outcome backward, or discovering that Khalilzad himself, personally, was never in favor of too much “inclusion” in the first place.

26. Ibid., 398–399.

27. The issue was again whether Iraq was one of the relatively rare situations where the logically prior act (or stages) of state making could be accomplished at the same time as (the stages of) constitution making. Consciously or not, that was the double task facing the makers of the TAL.

28. Evidently I do not buy the purely formal claim that Iraqi sovereignty was restored in June 2004 and the occupation ended at that time. Sovereignty should be linked with control over military forces, and legality with minimum effectivity. The Iraqi government has no effective control over its military forces, and especially over the MNF (Multi National Force) that in effect still occupies Iraq, with the constrained permission of its government.

29. And not only in the sense of the generation of legitimacy.

30. I argued for this in my first article on Iraq: “The Occupation of Iraq and the Difficult Transition from Dictatorship,” Constellations 10, no. 3 (2003).

31. Interestingly, it is supporters of the Kurds who often speak of the constitutional settlement as a peace treaty, forgetting General Y. Rabin’s warning that peace is to be made with enemies like the Sunni and not friends like the Shi’a. See K. Soltan, “Think of It as a Treaty,” October 23, 2005, on the Web site of the KRG: http://web.krg.org/articles/article_detail.asp?LangNr=12&RubricNr=&ArticleNr=6955&LNNr=28&RNNr=70, which references me, and alas, a year and a half later, I still stand by my position: the constitution is disastrous, and the peace treaty he is speaking about, one that excludes the side with which one was fighting, is ridiculous. Where is Soltan’s “suspended civil war” engineered by this constitution? What is “an incomplete peace treaty”? Which part of the treaty is complete? The Shi’ite-Kurdish part, the sides that were not fighting? See also Galbraith’s The End of Iraq, where he speaks of the constitution-making process as the negotiations of a tripartite peace treaty (193), which given what he says (203) about the making of an exclusively Shi’ite-Kurd rather than national compact should be described as a failure! J. Morrow, also a supporter of the Kurds, expresses a more cogent position on the same subject. While he too speaks of the project of constitution making as a peace treaty, he at least admits failure in this regard. J. Morrow, “Iraq’s Constitutional Process II: An Opportunity Lost,” USIP Special Report, November 2005.

32. And I disagree with Allawi when he argues that the Sunnis could organize themselves as a plausible, representative caucus in the IGC. The Occupation of Iraq, 222. It is another matter that the Iraqi nationalist position was intellectually represented there. The point is contradicted by Diamond, Squandered Victory. The main point in any case is organizational presence and representation, and here only the Iraqi Islamic Party counted. But their role in the making of the TAL seems negligible.

33. Allawi, The Occupation of Iraq, 405.

34. The Crisis Group indicates both sources: “Iraq: Don’t Rush the Constitution,” June 8, 2005, 8ff.; and “Unmaking Iraq,” 3; Allawi, The Occupation of Iraq, 406–408. Galbraith blames only the Americans but says the Kurds and the Shi’ites were the beneficiaries: The End of Iraq, 195; Morrow, “Iraq’s Constitutional Process II,” 8–11.

35. Crisis Group, “Iraq: Don’t Rush the Constitution,” 3 and n. 19.

36. Allawi, The Occupation of Iraq, 395, on the Kurds.

37. I myself have made a proposal here, relatively early. See Juan Cole’s Web site Informed Comment, “Arato Guest Editorial: The Iraqi Constitution,” December 28, 2004 (http://www.juancole.com). I did not predict the electoral outcome very well, and the eventual solution is superior to mine in that light. The Crisis Group offered the most extensive discussion and suggestions, unfortunately somewhat confusing the very different issues of Sunni inclusion with civil society and other forms of participation. “Iraq: Don’t Rush the Constitution,” 2–5.

38. The most accurate summary is in Nathan J. Brown’s report “The Iraqi Constitutional Process Plunges Ahead,” Carnegie Endowment for International Peace Policy Outlook (July 2005). Brown does not mention the numbers. Now also see the Crisis Group, “Unmaking Iraq: A Constitutional Process Gone Awry,” September 26, 2005.

39. Galbraith, The End of Iraq, 194, who was an expert participant on behalf of the Kurds makes this charge, but others, for example A. Allawi, who sympathizes with the Shi’ite side, conspicuously do not follow him.

40. Allawi, The Occupation of Iraq, 406; and Galbraith, The End of Iraq, who is especially vociferous and propagandistic on this whole question. All this is out of line for an expert for the Kurds, who seems to be wishing to pick his opponents’ negotiating team in what he himself called a peace negotiation, a nonsensical position.

41. J. Morrow, “Iraq’s Constitutional Process,” 11. Morrow is now an advisor to the Kurdistan Regional Government and thus an unimpeachable source on this subject. I wonder why he did not share this particular piece of information with Peter Galbraith, with whom he runs a consultancy firm. His piece on the negotiation process is excellent, though I do not share his conclusion, which ultimately still reflects the KRG point of view.

42. Crisis Group, “Unmaking Iraq,” 3. This report also argues that the Sunni representatives made an effort in good faith to participate, at considerable personal risk to themselves.

43. Galbraith challenges this view without mentioning the constitutional referenda where the Sunnis overwhelmingly voted against the constitution. He says that the rejectionist Mutlaq party, the Iraqi Front for National Dialogue, won just eleven seats, 20 percent of the Sunni vote, in December 2005, while the Iraqi Accord Front, which included the “proconstitutionalist” Iraqi Islamic Party, won 80 percent. This analysis is entirely spurious. The IIP was part of the Sunni delegation, was excluded from the Leadership Council phase, with drew from the process, and rejected the constitution as it stood on August 28, together with the al-Mutlaq group. To call them proconstitutionalist is absurd; they are for the renegotiation of the constitution. The Iraqi Accord Front also included more radical, anticonstitutionalist elements, e.g., Adnan al-Dulaimi of the Sunni Endowments. The real distinction between the two Sunni parties contesting the elections of December 2005 was religious versus secular, and, alas, the religious party (The Iraqi National Accord) did much better.

44. A. Przeworski, Democracy and Market (Cambridge: Cambridge University Press, 1991).

45. E.g., there have been surprising alliances and conversations among the most radical Shi’a, al-Sadr, and some radical Sunni forces, the Association of Islamic Scholars.

46. We still do not know who killed two of the initial Sunni members (Sheik Mijbil Issa, a full member, and one advisor): Crisis Group, “Unmaking Iraq,” 3; Morrow, “Iraq’s Constitutional Process,” 9. Just before his murder, Sheik Issa complained to the Crisis Group about not being seriously included by the Constitutional Commission.

47. See Brown, “Iraq’s Constitutional Process Plunges Ahead” (available online at http://www.carnegieendowment.org/files/PO19Brown.pdf) for the reasons and his criticisms, as well as Crisis Group, “Iraq: Don’t Rush the Constitution.”

48. In theory, the group included Talabani and Barzani, Hakim and Jaffari, and for the Sunni al-Mutlaq, al-Dulaimi, and Iraqi Islamic Party leaders including Tarek al-Hashimi (Allawi, The Occupation of Iraq, 413). In practice, the Kitchen was constituted by the first four. Morrow, “Iraq’s Constitutional Process,” 9. According to Allawi, they were joined by Peter Galbraith, and Ambassador Khalilzad was often present as well.

49. Morrow, “Iraq’s Constitutional Process,” 3.

50. “The National Assembly shall write a draft of the permanent constitution of Iraq. This Assembly shall carry out this responsibility in part by encouraging debate on the constitution through regular general public meetings in all parts of Iraq and through the media, and receiving proposals from the citizens of Iraq as it writes the constitution.”

51. There was a constitutional outreach unit of the National Assembly, but it is hard to see what outreach could consist in unless the assembly itself was to have a long and relevant role in the process. Morrow, “Iraq’s Constitutional Process.” He makes a strong case for the expectations concerning popular constitution making, expectations I consider somewhat unrealistic under the circumstances regarding popular inputs into the process. In any case, he is right about the effect of the time constraint in this area.

52. This is where I disagree with Morrow, who seems to suggest that the only point of extending the timeframe would have been for the Sunni to learn to live with federalism as defined by the Kurdish-Shi’ite agreements.

53. They were to complain that too much had been agreed upon before their arrival, but in fact, with or without them, the Constitutional Commission was producing a product they could have lived with.

54. Text of the Draft Constitution, raised for discussion at the Constitution Drafting Committee: http://www.iraqfoundation.org/projects/constitution/arabicconstitution_unsept1505.doc. 

55. See Kirk Semple, “Constitution Proposes Some Limits on Role of Clergy,” New York Times, August 4, 2005.

56. “Executive Authority,” arts. 1 and 2.

57. Chap. 6, arts. 1a and 1b.

58. Brown, “Iraq’s Constitutional Process Plunges Ahead,” 14. I regard electoral rules as part of the constitution in the material sense, but Iraq follows the usual pattern of having only some general constitutional statement of principles, along with a rule legislated by the parliamentary majority.

59. Crisis Group, “Unmaking Iraq,” 3.

60. Ibid., 9.

61. In a news conference on August 16, 2005, Ambassador Khalilzad tried to pretend that the three-sided process was still working. See “Ambassador Khalilzad Comments on Progress Drafting Iraq’s Constitution,” U.S. Embassy, Baghdad.

62. Ibid., 10; The Crisis Group indicates that it was Sheik Hamoudi who refused the demands of other committee members such as Othman, but this probably was on the instruction of his chiefs. See “Unmaking Iraq,” 4–5, n. 22. See also Allawi, The Occupation of Iraq, 407–408, who focuses on the considerations of the Shi’ite leadership. Galbraith claims that all Iraqi party leaders wanted the six-month extension (The End of Iraq, 195). It may be a question of when they were asked the relevant question and a possible difference between Shi’ite and Kurdish intentions as well. The American attitude, in any case, was unambiguous and decisive.

63. He made the call originally on July 26: See E. Knickmeyer and R. Wright, “Special Summit Set on Charter for Iraq,” Washington Post, July 27, 2005. But he did not yet abandon his attempt to extend the process.

64. According to the TAL, the National Assembly “shall write a (the) draft of the permanent constitution of Iraq,” but the National Assembly did not write anything, and could not, without voting. Only the Constitutional Committee wrote a text without the authority to submit it to the electorate.

65. Cole, in the Informed Comment Web site on August 23; Arato, “[Il]legality and [Il]legitimacy”; Brown in “Iraq’s Constitutional Conundrum,” 2, puts it like this: “the notion that the TAL’s requirement for the Assembly to write a constitution could be satisfied by handing the speaker an incomplete draft a few minutes before the deadline is beyond implausible.”

66. Galbraith, The End of Iraq, 193–194.

67. Morrow, “Iraq’s Constitutional Crisis,” 11, does not identify with this claim of a “nuclear option” on the part of the Sunnis.

68. “Key Shiites Demand Autonomy in Southern Iraq as Deadline Nears,” Reuters, August 11, 2005.

69. In retrospect, the Kurds should have opposed a structure making the creation of a Shi’ite megaregion possible, but this they found difficult to do on the constitutional level, because they wished to expand their own region to at least the Kirkuk governorate, and maybe more. It is possible, however, that the Kurds are informally pushing for a Shi’ite regionalism well short of Hakim’s dreams.

70. Allawi, The Occupation of Iraq, 409.

71. Ibid., 410.

72. Galbraith, The End of Iraq, 197; this is implicitly inconsistent with the picture of Sunni recalcitrance, since apparently they had some reason to be disturbed and opposed to things as they were proceeding.

73. Questioned about but papered over in his news conference. See “Ambassador Khalilzad Comments.”

74. “‘Iran satisfied with Iraq charter’: Teheran, Aug. 29 (UPI)—Iran expressed satisfaction Monday over the completion of Iraq’s new draft constitution, despite Arab Sunnis’ reservations on several articles of the charter. Foreign Ministry spokesman Hamid Asafi was quoted by the Iranian News Agency, IRNA, as saying, “Iran hopes the political process in Iraq will lead to a referendum on the constitution and the creation of a government as planned…. There is no doubt that establishing peace and security in Iraq will lead to economic prosperity and will serve the interests of all the Iraqi people.”

75. The role of Iran behind the new SCIRI posture is supported by Morrow (“Iraq’s Constitutional Process,” 13), but without very specific evidence.

76. Admittedly, had they received more support from the Da’wa party of Prime Minister Jaffari or from Ayatollah Sistani, the combined pressure of the Kurds and SCIRI could have been resisted. But all signs of a Shi’ite split disappeared after a few days, with even the Sadrists putting up only feeble resistance against the idea of a southern megaregion. Again, one should suspect the hand of Iran in all this.

77. Galbraith, The End of Iraq, 198ff.

78. Morrow, “Iraq’s Constitutional Process,” 13.

79. There are a variety of texts of the constitution available and none is fully authenticated. I am using the generally accepted penultimate text used also by Brown in his commentary alongside the current, amended text according to the compromise of October 13, 2005. The latter is almost never used, at least in its English version. The Iraqi Independent Electoral Commission’s unofficial translation on its official Web site is closer to the first of these texts but is not entirely the same. Here the variation seems to be only very slight, involving the numbering of the paragraphs, though evidently something has been struck out as well. What is amazing is that there is no authenticated text including the revisions of October 13, 2005, what I call the current text. The Independent Electoral Commission provides a separate list of amendments: http://www.ieciraq.org/English/Frameset_english.htm and http://www.ieciraq.org/final%20cand/AmendstoConstengOct13[1].pdf.

80. Galbraith, The End of Iraq, 169.

81. Ibid., 169–170; and Morrow, “Iraq’s Constitutional Process,” 7, expressing the Kurdish position, versus Crisis Group, “Unmaking Iraq,” 7, relying on Nathan Brown.

82. N. Brown, “The Final Draft of the Iraqi Constitution: Analysis and Commentary,” Carnegie Endowment for International Peace Web site, www.CarnegieEndowment.org, p. 13.

83. P. Galbraith, “The Last Chance for Iraq,” New York Review of Books 52, no. 15 (2005): 22. The Crisis Group disagrees with him but without providing an alternative argument: “Unmaking Iraq,” 7.

84. M. Karouny and G. Ghantous, “Devolving Power in Iraq Threatens Oil Development,” Reuters, September 8, 2005.

85. Brown, “The Final Draft of the Iraqi Constitution: Analysis and Commentary.” Amazingly enough, neither constitution ever clarifies the relationship of the two highest courts of appeals, and thus both represent an eclectic mixture of American-type supreme and European (Kelsen)-type constitutional courts.

86. Gone was Jaffari’s attempt to slow down the Kurdish drive to take over the city and the province. The regulations of the TAL survive, but it was agreed that a referendum would be held by December 31, 2007, in art. 136 (current version: art. 139): Galbraith, The End of Iraq, 201–202.

87. Galbraith, The End of Iraq, 199–200. He is sustained by the relevant absence in the text. The Constitution, old version, art. 91 (fifth point) mentions court jurisdiction regarding conflicts between federal government and regions; the current version leaves out regions and has only provinces in its place: art. 92 (fourth point). I cannot tell if that is the function of two different translations or a further erosion to the benefit of Kurdistan’s autonomy.

88. Ibid., 200.

89. Brown, “The Final Draft of the Iraqi Constitution: Analysis and Commentary.”

90. This provision was put in the place of the early draft’s idea of a revision in two parliamentary cycles, which would bring up the possibility of amendments by one cycle but would have protected basic rights better in the long term, since the new regulation does not then require that two parliaments in general approve amendments of certain articles.

91. It is this provision that enshrines a confederal state once it is formed, as opposed to the amendment rule of the early draft, which allowed ordinary constitutional amendments to change the whole regional structure.

92. Crisis Group, “Unmaking Iraq,” 2.

93. But later also Morrow (“Iraq’s Constitutional Process,” 15), who is hardly a mere apologist for the Kurds and who also registers in general the remarkable uninvolvement of the National Assembly in a constitution it was supposed to write.

94. Galbraith, “Iraq’s Last Chance,” 22. This author-participant is in a good position to know that the ruling is wrong, but rather scandalously does not say so.

95. See Juan Cole’s Informed Comment and M. Karouny, “Sunni Arabs Seek UN Guarantees on Iraq Referendum,” Reuters, September 13, 2005.

96. R. F. Worth, “Election Move Seems to Ensure Iraqis’ Charter,” New York Times, October 4, 2005. “‘I think it’s a double standard, and it’s unfair,’ said Mahmoud Othman, a Kurdish assembly member who, like many other lawmakers, said he had not been present during the vote and only learned of it afterward. ‘When it’s in your favor, you say ‘voters.’ When it’s not in your favor you say ‘eligible voters.’”

97. R. F. Worth and S. Tavernise, “Iraqi Lawmakers Reverse Rule Change,” New York Times, October 5, 2005.

98. Here I am focusing on the amendment that has to do with new procedures of constitution making. In addition, the following compromise formulations were offered to Sunni Arabs: (1) a mention of the constitution guaranteeing the unity of Iraq (added to art. 1), (2) a mention of Iraq being a founding member of the Arab League (added to art. 3), (3) use of both Kurdish and Arabic in Kurdistan (added to art. 4), and (4) past membership in the Ba’ath is not a criminal offense and de-Baathification will be monitored and reviewed by a parliamentary committee (added to art. 131). See the Web site of the Independent Electoral Commission: http://www.ieciraq.org/. 

99. The language of the translation of the IEC is different: http://www.ieciraq.org. 

100. http://www.ieciraq.org/final%20cand/ELECTORAL%20LAW%20FINAL%20gazetted.pdf. 

101. S. Tavernise, “U.N. Rejects Sunni Demand for New Vote in Iraq,” New York Times, December 28, 2005. The vote for the constitution was 63 percent “yes” in Kirkuk province. Honest or not, that percentage can be probably duplicated in a referendum concerning the political fate of the province.

102. Q. Abdul-Zara, “Iraqi Parliament Passes Federalism Law Over Sunni Objections,” AP, October 11, 2006; “Sunni Accuse Shiites of Dirty Tricks in Passing Controversial Federalism Law,” International Herald Tribune, October 12, 2006.

103. See “Pact of Honor,” as reported on by Gilbert Achkar in Informed Comment, December 9; as well as Kanan Makiya’s recent op-ed in the New York Times (“Present at the Disintegration,” December 11, 2005).

Conclusion

1. For once I almost completely agree with Peter Galbraith’s assessment in his newest article, “Iraq: The Way to Go,” New York Review of Books, August 16, 2007. I say “almost,” because Galbraith cannot stop himself from justifying the violation of the promise made to the Sunnis by saying, absurdly, that they themselves did not live up to their part of the bargain when the electorates of three provinces massively voted against the constitution but in Nineveh short of the necessary two-thirds needed to block ratification. The bargain, however, was not made by the voters, who are not a single agent capable of adhering to a bargain, but by the Iraqi Islamic Party, and they strongly recommended a “yes” vote. Probably this move had some influence on the outcome, possibly securing the failure of the “no” in Nineveh after all. We will never know. Interestingly, the text the voters voted on did not even contain the revisions and the promises made to the IIP.

2. I do not exclude learning on the part of some senators, of course. See the full text of Barack Obama’s excellent interview with the New York Times, November 2, 2007.

3. [Note written on September 30, 2007] Urging the American administration “to actively support a political settlement in Iraq based on the final provisions of the Constitution of Iraq,” constitutionally, this Biden-Brownback resolution should have been a nonevent in Iraq. If it were an act of Congress, it would be akin to H. L. A. Hart’s famous legislation of Moscow traffic rules by the parliament in Westminster. Things are a little different in the given situation. Politically, the resolution is extremely damaging for its initiators, since it produces nothing but resistance from most Iraqi forces. That may be a good thing if Sistani, for example, chooses to actively oppose the so-called federalist option promoted by the Kurds and what used to be SCIRI (Now ISCI, or the Islamic Supreme Council of Iraq). No one even notices anymore that such neoimperial resolutions violate international law, though they certainly do, most obviously.

4. A. Arato, Civil Society, Constitution, and Legitimacy (Lanham, Md.: Rowman and Littlefield, 2003), 230–231, and the rest of chap. 7; also see my “Constitutional Learning” in Theoria.

5. Hans Lindahl, “Sovereignty and Representation in the European Union,” in M. Loughlin and N. Walker, eds., Sovereignty in Transition (Oxford: Hart, 2003).

6. It is important to admit that in a political community, any legal identity cannot exhaust the symbolic meaning of the people. A given legal identity can be challenged in the name of other competing legal identities in the name of the same “people.” But that “people” is a symbolic identity whose place, following Claude Lefort, is legally and politically an empty one. Claims to fully embody it are always usurpations, as Carré de Malberg already argued in his defense of national and critique of organ sovereignty. I would distinguish political meanings of the people from legal ones, only to leave open the possibility of alternative institutional options, some of which are not yet realized. The legal meaning of the people need not be understood very narrowly in terms of the legislature and the electorate, and it can encompass any number of pluralistic forms in civil and political society. The political meaning is available to take up the rest of the forms. As Kelsen realized, the political people are likely to be more minoritarian than the legal people. But only the symbolic meaning, which may encompass future generations too, is fully universal. Note that outside the symbolic meaning of the people, the other meanings may be redundant and contradictory.

7. H. Kelsen, General Theory of State and Law (Cambridge, Mass.: Harvard, 1945), 261. This problem has been since thematized by a variety of diverse thinkers from Derrida to Weiler. See the very detailed and serious treatment by my friend János Kis, “Népszuverenitás [Popular Sovereignty],” Fundamentum 2 (2006); and the critique of the metaphysics of presence by Lindahl, “Sovereignty and Representation in the European Union.” Kelsen himself admittedly added that in a political if not a juristic sense a people can be seen as the source of the constitution, but then they would certainly be only a minute part of the whole people.

8. Bert van Roermund, “Sovereignty: Unpopular and Popular,” in Sovereignty in Transition, 47ff. Roermund uses the Hobbesian actor/author distinction in this context, which works less well for the specifically cited American case, where the Constitutional Convention technically treated itself as a recommender of mere language (as Rousseau’s legislator) and the ratifying conventions as both (en)actors/authors of the famous phrase. In light of the fact that the Federal Convention constituted the rules under which the rest of the process was to proceed and the relatively narrow freedom of the state conventions to approve or disapprove but not to amend, something like the same distinction can be upheld also in this case. The new postsovereign method breaks with the model by making it reflexive, as I will show. Only it establishes the actorship of the authors in both stages.

9. This is done in the classical European version by freely elected constituent assemblies, occluding their inevitably arbitrary beginnings. The American convention of the 1787 type does not claim representative status, but in effect the ratifying conventions do. The drafting convention thus plays the role of the instance that makes the electoral rule (in effect, it did that by choosing state conventions), and the arbitrariness here had to do with its extralegal actions.

10. This is so even in the cited reflections of Kis, Roermund, and Lindahl, all of which are brilliant, but none of them offer a challenge to the first claims of being authorized, which evidently can be arbitrary or legitimate to very different degrees, even if arbitrariness can never be eliminated and legitimacy at that stage cannot be complete. I rely upon all of them, but based on the positive experience of the successful cases and the negative experience of Iraq, I am hopefully able to take one or two additional steps.

11. J. H. H. Weiler, The Constitution of Europe (Cambridge: Cambridge University Press, 1999), chap. 1.

12. Kis, “Népszuverenitás [Popular Sovereignty].”

13. A. Esmein, Elements de droit constitutionnel français et comparé [1914] (Paris: Panthéon-Assas, 2003), 583–586; Carré de Malberg, Contribution à la Theorie générale de l’Etat [1920] (Paris: Dalloz, 2004), 1:49, 1:65–66; 2:500–501.

14. A. Arato, “Dilemmas Arising from the Power to Create Constitutions in Eastern Europe,” in M. Rosenfeld, ed., Constitutionalism, Identity, Difference, and Legitimacy (Durham, N.C.: Duke University Press, 1994), 178–186. Revised as chapter 4 of Arato, Civil Society, Constitution, and Legitimacy. This problem of the relativization of the constituant and constitué distinctions now greatly occupies authors such as Lindahl, “Sovereignty and Representation in the European Union,” 105ff., who start out with Foucault’s description of the supposed contradiction of sovereignty both under law and legibus solutus. See the contributions of N. Walker and B. V. Roermund to Sovereignty in Transition, 19, 34–35, 38ff. It remains unclear how any of their solutions solve Foucault’s paradox, if it is one.

15. Even there, Maurice Hauriou probably rightly insisted on the constitutive rule of custom, which precedes all state formation and should not therefore be identified with the origins of law. See Precis de droit constitututionnel, 2nd ed. (Paris: Sirey, 1929), chap. 3.

16. That reduces revolution (contrary to the point of view of the domestic system, of course) to a kind of constitutional amendment under international law. See Kelsen, General Theory of State and Law, 219–220, 368ff.

17. I must admit that as a general proposition, state continuity seems to be a symbolic matter above all. Organizationally, territory, people, or the administrative apparatus could all play the relevant role, but with respect to each it is possible that there is significant discontinuity, yet the “state” survives, and not only as a center of international-law obligations that serves the interests of other states. This survival is symbolic and discursive, and tentatively I think it would require the continuity of either territory or at least population as well. Possibly an intact military-administrative structure could play this role with some of the people and territory only.

18. In chapter 5 of my Civil Society, Constitution, and Legitimacy, “Constitution and Continuity in the East European Transitions,” I argued (170–173) that Arendt’s thesis of continuity in the midst of change, which she discerned even in the American revolution, can be differentiated along her two axes of power and law. While she rightly maintained that in America it was the power axis (intact small republics) that were relied on, I argued that in central Europe it was the law axis that was the locus of continuity. Either (constituted bodies or constitutive rules) avoid the constituent power being in the state of nature. I now think both aspects express a more fundamental state continuity.