They read his draft and called him back for consultations. As soon as he walked in, it was clear to him that they didn’t share his enthusiasm. They had dozens of other legal matters to address: reopening courts, rehabilitating prisons, revising laws addressing serious crimes. A new traffic law seemed so trivial. Besides, they noted, who would train the police, set up the new courts, and process the fines? The CPA was already stretched thin. “Nobody was saying it was a bad idea,” one of the CPA participants recalled. “It was a matter of priority and timing.” But they didn’t dismiss Smathers outright. They knew that a general wanted the law. They finally told him to return in a few weeks. They’d have to consult with the Council of Judges and the Interior Ministry, which supervised the traffic police.
A few weeks later, in early February 2004, the CPA staffers met with a group of high-ranking traffic officers. Smathers showed up with a folder filled with copies of his draft. The Iraqis, who had read a translation, were equal parts angry and incredulous. They couldn’t believe that the Americans would involve themselves in such minutiae, and they were none too pleased with the prospect of losing the power to shake down motorists.
Smathers had expected the Iraqi police to dislike his revisions. “It puts power in the hands of the people,” he said later. “It holds the police accountable. It stops them from making money on the side. I really didn’t know how these guys were paid before, but a lot of them were rich. They had twenty cars… and I wasn’t going to allow that.”
The Iraqis proposed that they draft their own version. They promised to do it within two weeks. The CPA staffers agreed. The days of ordering the Iraqis around were supposed to be over.
Smathers felt burned. The Americans hate my plan because it wasn’t invented in the palace, he thought as he walked out. And the Iraqis hate it because it will take their power away.
“The people working in the CPA were debaters who wanted a hundred percent best solution for any problem,” he told me. “Sometimes the sixty percent solution today is better than the hundred percent solution six months from now. And that’s what those people needed. They needed something. They needed some kind of action even if it’s a little bit of one to show them that you’re doing something. And what got sent from Washington was a bunch of debaters. They’d sit around in the Green Zone and debate. Well, I don’t know about this. Let’s try this. And then they’d debate it for months and months and months and months, and nothing would happen.”
Smathers never made it to the next meeting. On February 21, a convoy in which he was traveling was ambushed south of Baghdad by a band of insurgents. His interpreter was killed, and his sport utility vehicle flipped over. Smathers broke his arm in two places and busted his knees. He was evacuated to an army hospital in Germany later that day.
While he was recovering, the Iraqi traffic officers returned to the Green Zone to present their draft. They had written it in Arabic but had gotten an Interior Ministry employee to translate it into English for the benefit of the CPA staffers. The document was laden with what seemed to be nonsensical prohibitions. Standing on the seats of a moving car was forbidden. So was talking to the driver. The draft even banned smoking in cars. The CPA staffers weren’t sure what to make of it. Iraqis smoked more than almost anyone else on the planet. What were the traffic officers thinking? Their draft was even sillier than Smathers’s.
It turned out that the Iraqis didn’t mean to prohibit smoking in all cars, just on public buses. It was a translation error—the sort of goof that bedeviled so many of the CPA’s attempts to administer a country where few of the administrators spoke the language of the administered. The CPA team thanked the Iraqis for the draft and promised to include elements of it in the new law. And then they set about melding the original Smathers draft with the Iraqi one. It was at the very bottom of the to-do matrix in the general counsel’s office, but it finally did get finished, vetted, and signed by Bremer.
The final document included much of what Smathers had written, but it contained dozens of new provisions as a sop to both the Iraqis’ and the CPA’s micromanagement tendencies.
• Pedestrians walking during darkness or cloudy weather shall wear light or reflective clothing.
• The driver shall hold the steering wheel with both hands.
• Long-distance driving may cause drowsiness or fatigue. To avoid this, rest should be taken for five minutes for every one hour of driving.
The traffic code became CPA Order 86.
Before Bremer left, he signed a hundred orders in all. Some were essential. Order 96 established rules for elections. Order 31 modified the penal code. Order 19 guaranteed freedom of assembly. But many others were aspirational or just plain unnecessary in a nation wracked by a violent insurgency. Order 81 revised Iraq’s laws governing patents, industrial design, undisclosed information, integrated circuits, and plant varieties. Order 83 revised the copyright law. Order 59 detailed protections for government whistleblowers. Order 66 created a public-service broadcasting commission.
Many in the Emerald City assumed that if you wanted to change something, you changed the law, just like in the United States. But Iraq didn’t work that way. Solving traffic snarls had little to do with a new law. Traffic lights had to be fixed. Traffic officers needed to be trained. Cars had to be registered. Imports had to be regulated. A decree wasn’t a substitute for the laborious, on-the-ground work of rebuilding a nation.
The Iraqis, of course, just disregarded the new traffic code. It was never distributed to officers or announced to the public. After Bremer left, I asked Sabah Kadhim, a senior official at the Interior Ministry, what would happen to the traffic law. He laughed. “Our main concern is terrorism,” he said. “You have to be practical. We haven’t reached the state where we can implement traffic laws. It’s great in theory, but in reality, we are not focusing on it. We have no resources to enforce it, and it’s not our priority.”
Moreover, Kadhim said, laws promulgated under the occupation were suspect. “There is a question mark there,” he said. “We will have to evaluate it. We need to enforce traffic laws in an Iraqi way. The Americans inside the Green Zone acted like they lived in New York, not in Baghdad. Good work is not going to bring good results unless you tailor it to a country’s concerns. Outside solutions won’t work here. It has to be an Iraqi solution. They should have let the Iraqis develop these laws themselves rather than imposing laws imported from America.”
The November 15 Agreement called for an interim constitution to be written by February 28. In early January, with Bremer and the council still focused on the stillborn caucuses, Roman Martinez and two colleagues from the CPA’s governance team met with two former exiles who had extensive legal experience: DePauw University law professor Faisal Istrabadi, and Salem Chalabi, an international lawyer who had studied at Yale, Columbia, and Northwestern, and looked like a younger version of his uncle Ahmad Chalabi. The council had already received two proposed drafts, one written by a Kurdish politician and the other by an aide to a Sunni Arab member, but the CPA believed that both were riddled with problems. The two Iraqi lawyers agreed, but told Martinez not to worry; they were writing their own document with the council’s blessing. They promised that their draft would include a bill of rights guaranteeing personal freedoms unheard of in the Arab world.
Instead of foisting an American document on the Iraqis, Bremer and his aides decided to allow Istrabadi and Salem Chalabi to proceed. From that moment on, the Iraqis had the pen. If the CPA wanted changes, the Americans would have to go to the Iraqis and make a case for additions or deletions. It was a jarring reversal for Americans who had been used to getting their way and for Iraqis who had grown accustomed to Bremer having the final say on everything.
The shift was a sign that Bremer and his CPA had finally started to understand that the Americans needed to play a supporting role, stepping in only to prevent the Iraqis from making colossal mistakes. He and his aides had learned that creating a plan in Washington and
ramming it down the throats of Iraqis didn’t work. And they also came to understand the enormous influence of Grand Ayatollah al-Sistani. Too much American involvement in the drafting of the interim constitution ran the risk of inciting the ayatollah’s opprobrium.
At one of the first meetings in the palace to inform other CPA departments about the drafting process, the governance team delivered an admonition: This is their document. We’re going to play a limited role. Of course, that didn’t stop CPA officials from weighing in and trying to make changes. Istrabadi’s passion was a bill of rights, which he designed as a bulwark against another dictatorship. His original draft included explicit rights to privacy, free expression, a speedy trial, education, health care, and social security. He also wrote that government authorities could not search private residences without a warrant. That provision alarmed CPA officials working with the ministries of Interior and Justice. Iraqi security forces were fighting an insurgency. Would they have to request a warrant if they received a tip that someone was assembling roadside bombs in his house? The CPA officials lobbied members of the governance team to push for a change, which they did. Ultimately, Istrabadi agreed to water down the provision and allow warrantless searches in “extreme exigent circumstances.”
The Istrabadi-Chalabi draft didn’t address several of the most contentious issues among Iraqis: the role of Islam in government, the status of the autonomous Kurdish region, and the rights of women. Those would have to be hashed out among council members.
Bremer issued only one ultimatum: if the document enshrined Islam as the sole source of legislation, as the two largest Shiite parties wanted—meaning that sharia would be the law of the land—he would veto it. The viceroy also stepped in to help hammer out a compromise over Kurdish rights. The Kurds had had effective autonomy in three northern provinces since 1991 and they were not about to give that up. They were willing to accede to a “voluntary union with Iraq” if they could keep their Kurdish Regional Government, which would have the power to veto any laws passed by the federal government in Baghdad. The Kurds also wanted their autonomous zone to include the historically Kurdish city of Kirkuk, which Saddam had resettled with thousands of Arabs. In addition, the Kurds insisted on maintaining their peshmerga militia and retaining revenue from oil pumped in Kurdish areas.
The Pentagon, the State Department, and the White House had long been opposed to ethnic federalism in Iraq. Bremer had supported that policy until early January, when he realized there was no way the Kurds would embrace an interim constitution that did not provide for at least a multiprovince Kurdish zone with its own administration. Bremer sought a compromise. He flew to the north for consultations with Kurdish leaders, where he struck a historic federalist bargain: the Kurds could maintain their three-province regional government, which would have far more power than other provinces—it could, for instance, reject some laws passed by the central government—but the Kurds would also accept the central government’s authority over a number of issues, including fiscal, defense, and foreign policy. It was Bremer’s finest hour in Iraq, breaking away from his masters in Washington to pursue a pragmatic policy based on Iraqi reality.
Bremer’s aides had sent cables about the Kurdish negotiations to keep the White House and the Pentagon in the loop, but as soon as Bremer announced his deal with the Kurds, Condi Rice and Paul Wolfowitz balked. They insisted that references to the Kurdish Regional Government be stricken from the interim constitution and that federalism be based solely on provincial lines. After seeing if the Kurds would budge—they wouldn’t—Bremer stood his ground with Washington. Rice and Wolfowitz eventually backed down, allowing Bremer and the CPA to head into final negotiations over the interim constitution.
It was late February, and by then the document had a name, the Transitional Administrative Law. The Governing Council convened a series of marathon meetings to hash out the remaining issues. The role of Islam in government was finessed with an artful two-step: Islam would be only “a source” of legislation, but no law could contradict “the universally agreed tenets of Islam.” A quota for female representation in the national assembly gave way to language stating that the country’s new electoral law “shall aim to achieve the goal of having women constitute no less than one-quarter of the members.” Members squabbled and even walked out for a time. Several Shiite members refused to sign the finished charter—the ratification ceremony had to be postponed for three days—because they objected to a provision that gave the Kurds effective veto power over the permanent constitution. (The provision would later be used, albeit unsuccessfully, by Sunni Arabs in an attempt to defeat the constitution.) The Shiites eventually agreed to sign the TAL, after consultations with al-Sistani. But through it all, Bremer took a backseat. He and the top British diplomat in Iraq, Sir Jeremy Greenstock, helped work through disagreements, but the ultimate decisions were made by the Iraqis. CPA staffers joked among themselves that they had never seen Bremer sit so quietly for so long.
“The TAL was a turning point,” said Adel Abdel-Mahdi, the Shiite politician who helped kill the caucuses. “It’s when Bremer stopped acting like a dictator.”
On June 1, United Nations envoy Lakhdar Brahimi announced the names of the members of the interim government that would assume power on June 30, when Bremer was scheduled to leave and the CPA was to be dissolved. Brahimi had consulted with hundreds of Iraqis—with professors, judges, clerics, and members of the Governing Council. He had even met with Grand Ayatollah al-Sistani. But the selection of the government, the most significant step on Iraq’s path to democracy after Saddam’s ouster, was anything but democratic.
Brahimi decided who was in and who was out, in consultation with Jerry Bremer and Bob Blackwill. Allowing Iraqis to choose would have been more democratic but also more chaotic, and the last thing Washington wanted was chaos. The only election that mattered was the one in November—in the United States.
Brahimi wanted to reduce the role of politicians in the interim government. He believed that an interim government composed of technocrats instead of politicians would make things work, and that they would be less likely to use their status to promote one party over another.
Brahimi’s strategy was torpedoed from three directions. Bremer and Blackwill argued for the inclusion of Governing Council members. Better to go with the devil you know, they said, than the one you don’t.
Al-Sistani also stuck his oar in. Brahimi had sent him a list of four candidates being considered for prime minister: Ayad Allawi, a secular Shiite who led a party called the Iraqi National Accord; Adel Abdel-Mahdi, a religious Shiite, of the Supreme Council for Islamic Revolution in Iraq; Ibrahim al-Jafari, another religious Shiite, of the Dawa party; and Hussein Shahristani, a moderate Shiite who didn’t belong to a party. Shahristani, a nuclear scientist who had been jailed by Saddam for refusing to work on weapons projects, was Brahimi’s favored candidate. Bremer and Blackwill preferred Allawi, a former Baathist who had spent years on the CIA payroll. They regarded him as someone who wouldn’t shirk from fighting the insurgents, but who also would be able to persuade former Baathists who had joined the resistance to lay down their arms. Al-Sistani didn’t indicate a favorite. He simply made it clear, through an emissary, that Allawi, Abdel-Mahdi, and al-Jafari were acceptable. There was no mention of Shahristani. Brahimi crossed him off the list and moved Allawi’s name up. Allawi was secular and he was America’s guy. He’d become the prime minister.
Governing Council members demanded that the top jobs in the interim government be given to political party leaders, and they opposed Brahimi’s choice of former foreign minister Adnan Pachachi for president. Pachachi, a secular Sunni, was close to the Americans. He was one of Bremer’s allies on the council, and he had been Laura Bush’s guest at the State of the Union Address in January. Some of his fellow council members questioned his impartiality and instead backed a rival Sunni, Ghazi al-Yawar, a businessman and tribal sheik who had no government experience beyond his ten-month
stint on the council. Pachachi eventually withdrew his candidacy for president, forcing Brahimi to hand the job to al-Yawar.
Pressure from Bremer, Blackwill, and the council guided Brahimi’s hand in filling other posts. He named al-Jafari and Rowsch Shaways of the Kurdistan Democratic Party as vice presidents. Another Kurdish politician was made deputy prime minister and yet another was tapped to be foreign minister. Abdel-Mahdi became finance minister. A leader of the Iraqi Islamic Party became the minister of industry. The powerful post of interior minister went to a leader of another party.
At the ceremony announcing the government, held at a clock tower that had been Saddam’s personal museum, a rumpled and drawn Brahimi kept a brave face, calling the new government “effective and capable.” But offstage, he did little to mask his disappointment. He had wanted to plant the seeds of secular, nonpartisan government, but the CPA and the members of the Governing Council had foiled him. Brahimi felt used. The Americans didn’t want his advice, just his imprimatur.
“We missed a great opportunity,” one of Brahimi’s aides told me later. “But that’s the story of the Americans in Iraq: missed opportunities.”
The interim government Brahimi selected would remain in power for seven months, until January 2005, when elections would be held for a national assembly. The assembly would form a new government and, more important, it would draft a permanent constitution. After voters approved the constitution in a national referendum, there would be another election, in December 2005, to select leaders of the new government outlined in the constitution.
Imperial Life in the Emerald City Page 26