Constitutional Crisis

President Bush, whose tattered Iraq policy finally came utterly unglued this week, now faces two unpalatable -- and politically deadly -- futures in Iraq. With the most recent polls showing approval ratings for Bush at 36 percent and dropping, the news from Iraq reads like a continuing obituary for his presidency, and the signs from Capitol Hill are that the Republicans are rapidly realizing the Bush-Cheney White House is a sinking ship. It's going to get a lot worse, thanks to the 153 gibberish-filled articles that make up the illegally imposed Iraqi constitution, a complete draft of which I've read (and analyze below).

Illegal, I say, because it was delivered past the legal deadline, without the full support of the constitutional committee designed to write it, and without its Shia and Kurdish authors bothering to seek a vote approving the draft in the Iraqi National Assembly. So let's consider the two options facing Bush.

The first is for the Sunnis, whose efforts at reaching a compromise with intransigent Shia fundamentalists and expansionist Kurds failed, to decide to organize their ranks and vote down the constitution in October. In two provinces, that is more than likely: In Anbar and Sulaimaniyah, the Sunni-led resistance could easily produce a two-thirds vote against the ersatz constitution. According to the procedures enshrined in the transitional Iraqi law, any three provinces can, by a two-thirds majority vote, reject the constitution. In a third province, Baghdad, a combination of Sunni oppositionists and Shia tied to the forces of rebel fundamentalist cleric Muqtada al-Sadr -- whose paramilitary forces battled other Shia factions last week -- seems likely to overwhelmingly reject the new constitution as well. That, in turn, would collapse the current Iraqi government, forcing new elections, a new assembly, a new constitutional committee -- and a new constitution. All of that would take months, which would torpedo any administration hopes that it could start pulling back U.S. forces in 2006.

The administration's strategy for the 2006 electoral season is to calm the public's fears about the quagmire in Iraq by pointing to the creation of a new Iraqi government in January. By hastily pushing ill-trained Iraqi army and police forces into the field, Bush had hoped that a modest cut in U.S. forces, perhaps 30,000 troops, could be announced next spring. But the looming failure of the jury-rigged constitution makes that impossible now. Under this first option, Bush will have to order U.S. forces to stand by and protect the ever-more-unpopular Shia theocracy taking shape along the southern Tigris and Euphrates, through 2007 at least.

Bad as that option seems, for Bush that would be the good news. The bad news is option two.

Under the second alternative, the Sunni resistance will gather momentum, eclipsing any and all moderate Sunni leaders who might consider “working within the system” (with the system, in this case, being the constitutional-electoral one). Instead, violence will grow exponentially, making the period of mayhem since May 2005 look mild by comparison. By October, rather than a nation lining up to go to the polls, Iraq could be embroiled in a full-scale civil war. (Iraq's current level of violence, in which Iraqis are dying at a rate of approximately 1,000 per month, is not anywhere near true civil-war levels. But if Iraq were to be plunged into a full-scale civil war, the scale of carnage would rise significantly, with as many as 10,000 or more Iraqis dying each month. Far more Americans than the current 50 to 100 killed monthly would die as well, as long as Washington chose to stay engaged.)

In such a civil war, the Kurds would retreat into their enclave, but exposed Kurds in cities like Mosul, Kirkuk, and Baghdad would be slaughtered. Likewise, al-Sadr's forces would likely engage in bloody combat with mainstream Shia fundamentalist factions. And other countries, including Turkey, Iran, and the Sunni Arab world, would inevitably be drawn in. Needless to say, this would not look good on Bush's résumé.

Until the very last moment, the Bush administration tried to put pressure on various Shia and Kurdish factional warlords to abandon their more extreme positions and make enough compromises to bring at least some Sunnis into the process. But the Shia and the Kurds blithely ignored Bush and his hapless ambassador, Zalmay Khalilzad. Inexplicably, rather than chide the Shia and the Kurds for their intransigence, Khalilzad blamed the Sunnis for walking out of the room -- even though not a single prominent Sunni had anything good to say about a constitution that seemed designed to exclude them.

Even more inexplicably, Bush repeatedly sang the praises of the Iraqi constitution, which he characterized as a historic document. “I can understand that he is trying to make the best of a bad situation,” says a former U.S. diplomat with experience in Iraq. “But he didn't have to praise the thing to the skies.” Significantly, Elizabeth Cheney -- the daughter of the vice president, who quietly assumed a key post earlier this year as deputy assistant secretary of state in Bureau of Near Eastern Affairs -- made a rare public declaration, telling The New York Times on Monday: "You have a real constitution that protects freedom of religion, freedom of association, freedom of speech and freedom of conscience. These protections are among the most far-reaching of any in the region and probably around the world."

It seems obvious that neither President Bush nor Elizabeth Cheney read the document. An examination of a draft of the Iraqi constitution, obtained indirectly from United Nations sources, shows the document is still incomplete and filled with vague phrases. Worse is what it does say.

First, it enshrines Islam as the law-making engine of the state. “Islam is the official religion of the State. It is a fundamental source of legislation,” says Article 2. “No law may be enacted that contradicts the established provisions of Islam.” Of course, nowhere does it say who interprets what Islam requires, but it hints at the expected outcome by calling Iraq, in the preamble, “the homeland of the prophets, abode of the virtuous imams.” And Article 90, which refers to the “Federal Supreme Court,” makes no mention of how judges for such a court will be chosen, insisting only that the court include “Sharia (Islamic law) experts.” Article 92, meanwhile, says, “Decisions of the Supreme Federal Court are final and binding for all authorities.”

Second, it toys with negating Iraq's role as an Arab nation. Article 3, in its entirety, reads, “Iraq is a country of multiple nationalities, sects and religions, and is a part of the Islamic world and the Arab people therein are a part of the Arab Nation.” Note that it does not say that Iraq is part of the “Arab Nation,” only that “the Arab people therein are.” Many Iraqi Arabs -- Sunni and Shia -- will likely read that to mean that the Kurds prevailed in their campaign to dismiss Iraq's Arab affiliations, including, potentially, the country's membership in the Arab League. That, too, was a position advocated by Ahmad Chalabi, Kanan Makiya, and the Pentagon's Iraqi National Congress.

Third, Article 7 eviscerates the possibility of a nationalist, neo-Baath Party emerging to represent the Sunni Iraqis and others, including the Shia, who still adhere to Baathist principles but reject Saddam Hussein's autocracy. Article 7 bans any “entity or program, under any name,” that represents the “Saddamist Ba'ath party in Iraq and its symbols. This may not be part of the political pluralism in Iraq.”

Fourth, the constitution creates a loose federal structure that guarantees the dissolution of Iraq. Section 5, including Articles 113 through 135, enumerates the vast powers accruing not only to Iraqi provincial governorates but to new super-entities called “Regions.” Regions of Iraq will be governed by people occupying a new office called “President of the Region.” It is explicitly a formula not for federalism but for outright autonomy and breakup – and, in turn, for civil war.

Fifth, as a special insult to the Sunnis -- and explicitly flying in face of the preferred view of the U.S. military in Iraq -- Article 145 perpetuates the Chalabi-led De-Baathification Commission as one of Iraq's constitutionally protected “independent commissions” reporting to the (Shia-dominated) National Assembly. It says, “The High Commission for De-Baathification shall continue its functions as an Independent Commission, and in coordination with the Judicial Authority and the Executive Institutions within the framework of the laws regulating its functions.”

All of this just scratches the surface of a document that is a jumble of unworkable mechanisms, clumsy phrases, ideologically driven mumbo jumbo, and religion-based rhetorical flourishes. This is the document that George W. Bush and Elizabeth Cheney praise. The only thing saving them from the opprobrium of historians is that the absurd mishmash labeled a “constitution of Iraq” will never rule over any real country. That's because it will be voted down in October -- or obliterated forever in a civil war.

Robert Dreyfuss is a Prospect senior correspondent. He covers national security for Rolling Stone and writes frequently for The Nation and Mother Jones. His book, Devil's Game: How the United States Helped Unleash Fundamentalist Islam, will be published this fall by Henry Holt/Metropolitan.

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