January 30, 2005

When President George Bush announced ten days ago that "the survival of liberty in our land increasingly depends on the success of liberty in other lands," he drew upon a notion with deeper roots in the history of political thought than perhaps he was aware. This notion, the neo-roman theory of freedom, states that individual liberty is constrained not merely by force or the threat of it, but by "a condition of dependence"—which "is in itself a source and form of constraint."(1)That is to say that "it is the mere possibility of your being subjected with impunity to arbitrary coercion, not the fact of your being coerced, that takes away your liberty and reduces you to the condition of a slave."(2) It is accordingly only possible for an individual to be truly free in a free state. President Bush, by making "liberty in our land" dependent on "liberty in other lands," internationalized this notion as he invoked it. The move was programmatic and prescriptive, but equally self-satisfied and retrospective—referring undoubtedly to the War on Terrorism and, specifically, the liberation of Iraq, which comes into being today with the first national elections in fifty years. Here we undertake only to examine the terms of this liberation in the language supplied by our president and our media.

An indelible moment

"An Indelible Moment," is one among several hundred articles that have littered our collective imagination during the past weeks. Printed yesterday as expatriate ballots were cast, it is the Washington Post’s attempt to consummate the marriage of Iraqi-democracy.

There was much to reconcile, many mixed emotions. This moment had been purchased with a lot of blood. But even in the fog of war and the sadness of exile and the blindness of faith there are truths that cannot be denied, that everyone can agree upon. Hayder Alhamdani selected one of these simple, resonant truths for this moment.
"This," he said quietly, "is the first time in my life." He let go of his ballot. He cast his ballot.
All day yesterday, voters held up their purple fingers in triumph. It was a new victory sign, maybe someday a peace sign, they hoped. It befitted the low-tech, hands-on feel of this election—democracy at its most basic and emotionally powerful. Democracy had marked them, touched them physically, and they hoped it would last forever.(3)
In today’s Los Angeles Times, this story took the form of an Iraqi expatriate family’s interstate "drive for democracy," while in the Boston Globe it is a "historic event."(4) The Baltimore Sun even exhorts Iraqis that "the moment has come to exercise your political freedom for the first time."(5)

But the occasion is not only one of joy. Dahr Jamail reported to Amy Goodman and Juan Gonzales only hours prior to the indelible moment that things in Baghdad was "a city under siege."(6)

Well, there have been ongoing attacks on polling stations, just in the last 24 hours in Iraq. There’s been at least 15 people killed in attacks on polling stations as they’re being set up for Sunday's polling process. It's been very, very bloody here. Every day at least 15 Iraqis a day have been killed in the last, at least, four or five days at the minimum.
The official response has been the elimination of all non-official cell and satellite phone services, the banning of all civilian use of cars. Thus Dahr Jamail and Brian Dominick document the unease that surrounds the event.

"We are not against elections," said Saif, an 18-year-old Shiite biology student at Baghdad University, "but we are against the timing of them. Look at the security," he exclaimed..."I will not vote, nor will anyone I know."(7)
Such views, incidentally, altogether contradict the principle championed by all US commercial news outlets that determine enthusiasm for the elections along unmistakable religious lines. The New York Times characteristically led the charge: "Every single Shiite interviewed for this article said he or she planned to vote...all the Sunnis interviewed, except one, said they were going to boycott."(8) Such assessments ignore the irony that this glorious, historic transition to democracy occurs under the conditions of martial law. Exercising political freedom is perhaps not as easy as it seems.

But what about the specifics of this exercise in political freedom? Dahr writes that "more than 7,000 candidates on the electoral lists have opted to remain anonymous prior to polling day."

Even determining how many lists of candidates will actually appear on the January 30 ballot is an elusive task, with the Independent Commission originally reporting 83, the UN claiming 256 during a ceremonial ordering of the ballot on December 20, and the Iraqi Independent Commission spokesperson putting the number at 111 during the recent IRIN interview.(9)
Unsurprisingly, then, Abu Sabah, a grocery stall owner near the Karrada district of Baghdad, asks

Who says we should have elections for people we don't even know during occupation, martial law and in a war zone? And why vote when we're expected to vote for an entire list of candidates when we only know, if we're lucky, one or two of their names?(10)
He is not alone.

"I have seen the lists, and I don't know any of them," said Mustafa, a 20-year-old physics student at Baghdad University. "I don't know if I'll vote yet because we don't know any of these people. I can't vote for someone I don't know."(11)
Prof. Shawket Daoud, a computer science specialist who now works for the government, said uncertainty over polling booths and the fear of violence was not the only problem. "Why vote when we don't even know who is running yet?"(12)
Nonetheless, the Washington Post tells us, "Democracy had marked them, touched them physically, and they hoped it would last forever."

This is what democracy feels like

This is not to imply that news coverage of the elections has been devoid of its adversarial trademark. In the New York Times, scrutiny is directed at the notion that Iraqis are ready for democracy.

But questions over the election go far beyond the American stewardship, to issues that touch on whether it was ever wise or realistic to think that Jeffersonian-style democracy, with its elaborate checks on power and guarantees for minority rights, could be implanted, at least so rapidly, in a country and a region that has little experience with anything but winner-take-all politics.(13)
Our media elsewhere provided much to substantiate this, as the reporting of an American election worker shows.

There were a lot of misconceptions. I explained, for instance, that the majority rules, but minorities are protected. This is new to Iraqis. People who have been spoon-fed everything for many years have trouble knowing what freedom involves.(14)
Indeed, many Iraqis seem to have some trouble knowing what freedom involves.

"The elections cannot be legitimate because we are under occupation, so I will not be voting, nor will any of my friends," said Layla Hamad, a Shiite shop owner.
"It's not a matter of elections, because those in power will stay in power," commented Suhaid, a 23-year old Shiite who is an unemployed computer science engineer. "This is a big lie and the elections are illegitimate."
Asked if he expected to vote, Saif promptly responded: "Even though the elections will happen, they will not be legitimate, and they will be a disaster. Anybody elected will be a puppet of Bush."1(5)
To understand "what freedom involves" let us first understand what it does not involve. The vote today is not a vote on how to manage and distribute the country’s vast resources, on how to go about bringing the occupying power to justice for unremitting war crimes, or even on whether to continue to host an army that continues to rape its lands and murder its citizens. "Democracy at its most basic and emotionally powerful," as the Washington Post called it, instead means choosing from a list of unknown names. Following a narrated account that one is hard put to call anything other than pornographic, the Washington Post announces that "this is what democracy feels like." Unfortunately, "what democracy feels like" to Iraqis during the rest of the day and night is the collective punishment essential to any occupation: curfews, restrictions on public gatherings, road blocks, razed agriculture, home demolitions, mass detentions.(16)

But these are all justifiably small considerations beside the emergence of democracy and its initiation of the constitutional processes. The New York Times is nonetheless quite right to write somewhat dubiously of implanted Jeffersonian checks on power in Iraq. For in 1984 it was also given assurances by the then US ambassador to Honduras that that country was "committed to the constitutional process." In recent years, however, much has been said the informal subversion of constitutional process by state subsidized torturer and death squads. Formal, too, were subversions of constitutional process. When Juan Almendares was reelected as President of the University of Honduras, for instance, his victory was challenged in court. He wrote in recent years that Justice José Benjamin Cisne Reyes of the Honduran Supreme Court confessed that the US ambassador "pressured us to annul your recent reelection as rector, giving the reason that you endanger the security of the state." Mr. Reyes confessed that he and all of the other Supreme Court Justices had committed "this dishonest act" out of fear for his life and for the life of the Mr. Almendares.(17) Mr. Almendares’ reelection was annulled and a critic of US policy was thereby removed from public life. The digression here is I think only apparent, for the US ambassador to Honduras then is today the US ambassador to Iraq. The Baltimore Sun and the New York Times are therefore quite justified in suggesting that Iraqis may not quite yet have the capacity to enact a "separation of powers, the rule of law and an independent judiciary, concepts that have been alien, or at least malleable, under the rulers Iraqis have known for centuries."(18 )

Before the law

On the same thread, let us turn from the possible subversions of the constitutional process (however probable) to the constitutional process itself, as embodied in the letter of the law. Surely this process, whose results will endure the subversions of the coming months and years, is worth their price; temporary coercions are a small cost to pay for freedom. The freedom to be delivered by the constitutional process is outlined by the Transitional Administrative Law (TAL). The initial step towards freedom will come in the form of the Iraqi Transitional Government (ITG) will be composed of a independent judiciary, the National Assembly (to be elected today), which will elect a three-person Presidency Council, which in turn appoints a Prime Minister and Council of Ministers. On behalf of The Washington Institute for Near East Policy, the senior intelligence analyst for Iraq at U.S. Central Command writes,

The ITG’s most important task in governance will be its efforts to restore security and stability in Iraq. As time goes on, the challenges involved in thwarting the insurgency will only increase. The struggle to establish competent Iraqi security forces will continue to be a critical task for the government.(19)
How diligently the ITG will execute the bidding of Washington is uncertain.

Within the ITG, the potential use of these forces could become controversial. Considering its dispersal of power and its checks and balances between various branches, the ITG will likely not be as decisive as the IIG has been. The role of Coalition forces in fighting the insurgency will be another key component of ITG debate. Many in Iraq’s political elite are probably uncomfortable with the Coalition’s strength and pervasive presence, despite the central role that Coalition forces play in maintaining security. Some of Iraq’s emerging political class may be vocal in advocating limits on Coalition activity or continued deployments inside Iraq—either as a matter of policy or as populist political theater.(20)
Iraqis, through the ITG, would seem to be given by the constitutional process the legal mandate to challenge the policies of its occupiers. However, "In the ITG, the judiciary will emerge as a prominent player in national politics."

As the interpreter of the TAL, the judiciary occupies a potentially powerful position to intervene in the transition process. The supreme court, in particular, has the power to challenge virtually any decision that it believes to contravene the TAL. In deciding what legal questions it will examine, the court largely formulates its own rules. Rather than wait for formal legal complaints to wind their way through a hierarchical court system, the supreme court theoretically has broad authority to identify and act upon issues it deems relevant to the interpretation of the TAL. This sort of independence, and the ability to block legislative and executive actions, represents a new and unusual feature of Iraqi politics in general, and specifically for judges.(21)
The "ability to block legislative and executive actions," it should go without saying, is legal answer to anything the National Assembly or its elected representatives might have to say about the war being waged by US army on the people of Iraq or anything else. Who are the members of the judiciary? Article 43(b) of the Transitional Administrative Law provides the answer.

All judges sitting in their respective courts as of 1 July 2004 will continue in office thereafter, unless removed from office pursuant to this Law.
The branch of government, then, that "independent voice" that "largely formulates its own rules" having unlimited "ability to block legislative and executive actions" is the same arm of justice that was installed by and administered the occupation by a foreign power. Among such "legislative and executive actions" are those that will have lasting effects.

An example of a potentially significant intervention is the court’s authority to "force" forward a failing constitutional drafting or ratification process. Such an independent authority did not exist during the negotiation and signing of the TAL, which was delayed for several days past its deadline when last-minute objections were raised and debated. The informality of the 15 November Agreement established no authorities and named no penalties for this delay. Under the TAL, however, supreme court judges faced with similar delays in drafting the permanent constitution would be duty-bound to trigger the painful provisions of dissolving the government and starting again.(22)
The effect should be clear: all legislation, including the constitution of the Iraqi state itself will be those acceptable to the occupying power. As President Bush indicated when he said that the fate of our freedom is contingent upon freedom abroad (implying that the mere possibility of unfreedom anywhere threatens freedom everywhere), the issue here is not decisive action on the part of the judiciary, but the possibility of such action. In other words, it may well come to be that in the next months and years, the judiciary will not exercise the extent of the power allotted to it. But the mere possibility of the exercise of such power, in the law, will provide a (US imposed) corrective effect upon the actions of the Iraqi Transitional Government, and all Iraqi governments thereafter. Arbitrary coercions thereby do not merely subvert the law; they are written into the law. One can only conclude that "the rule of law and an independent judiciary," will in Iraq continue to be "concepts that have been alien"—which is to say imposed from the outside, by the representatives of the United States of America.

Postscript: on criminal justice in Iraq at the present time

The fact remains that what has been said up to this point of the Transitional Administrative Law (TAL) and the judicial provisions that it extends are removed from current, everyday realities in Iraq. Nonetheless, the indefinite extension of these provisions gives every indication that what is will be what remains. Whatever we can determine of criminal justice in Iraq up to the present time tells us, then, what is likely to remain. We begin with Dahr Jamail’s interview of Lilu Hammed late last May.

Sitting alone on the hard packed dirt in his white dishdasha, his head scarf languidly flapping in the dry, hot wind, Lilu Hammed stared unwaveringly at the high walls of the nearby prison as if he were attempting to see his 32 year-old son Abbas through the concrete walls. When my interpreter Abu Talat asked if he would speak with us, several seconds passed before Lilu slowly turned his head and said simply, "I am sitting here on the ground waiting for God's help." His son, never charged with an offense, had by then been in Abu Ghraib for 6 months following a raid on his home which produced no weapons. Lilu held a crumpled visitation permission slip that he had just obtained, promising a reunion with his son…three months away, on the 18th of August. Along with every other person I interviewed there, Lilu had found consolation neither in the recent court martial, nor in the release of a few hundred prisoners. "This court-martial is nonsense. They said that Iraqis could come to the trial, but they could not. It was a false trial."(24)
An ACLU press release this past Monday indicates that any torture that Lilu Hammed’s son may have encountered—let alone the detention which made him vulnerable to torture—has been systematically abandoned and uninvestigated by US army authorities.(23) Torture in the report is characterized "as acceptable practice" if not "standard operating procedure." A ninety-four page Human Rights Watch Report published the next day investigated the functioning of Iraqi institutions of criminal justice. It found

The systematic use of arbitrary arrest, prolonged pre-trial detention without judicial review, torture and ill-treatment of detainees, denial of access by families and lawyers to detainees, improper treatment of detained children, and abysmal conditions in pre-trial detention facilities.(25)
The report found that the prolonged detention of Lilu Hammed’s son is not the exception the Iraqi Code of Criminal Procedure (CCP), which requires a defendant to be brought before an investigating judge within twenty-four hours of his or her arrest; rather, such prolonged detentions constitute "the vast majority" of cases. This is in contradiction to the TAL, which stipulates that all Iraqi citizens are equal before the law, and that their rights to freedom from arbitrary arrest, unlawful detention, unfair trials, and torture are protected by law. Human Rights Watch adds that "there are a number of protections in the CCP that, if implemented, would contribute to the better protection of persons deprived of their liberty." The failure to implement such laws—again, the rule rather than the exception—tells something of the judicial institutions charged with this task. According to Human Rights Watch, this rule of lawlessness has been used to target local journalists and members of rival political parties. The following testimony, taken from Ali, a 29 year-old suspected dissident, typifies that which comprises the report.

When we entered the headquarters, the [Iraqi] officer told us to kneel before him. We were hit on the back of our necks with a rifle butt. Then they took us upstairs to the first floor and told us to face the wall and began beating us severely. The Americans were there, standing some five or six meters away. They just stood and watched. I was beaten with a wooden stick on my forehead, and all of us were beaten over the body with cables and hosepipes. That happened even before the interrogation had begun.
Then they put us in a cell measuring three by four meters. Altogether we were sixty-three in that room, all crammed together. Some of the others in the cell had also been tortured. One of them, a farmer from al-Najaf called Khalid, had had his fingernails extracted and on of his arms broken. Most were adults but there were also several children, between fifteen and seventeen [years old]. We were given no food for the first day and a half. The guards told us if we wanted to eat we would have to buy our own food.
When a formal complaint was recently lodged in response to one such interrogation, Chief Investigative Judge Zuhair al-Maliki issued a series of summons requiring several officials to appear in court to answer questions relating to the arrests.

The Ministry of Interior’s legal spokesperson, the Minister of Interior Falah al-Naqib, and the Iraqi National Intelligence Service director, Major General Muhammad Abdullah al-Shahwani, did not answer summons issued to them. On October 18, 2004, Judge Zuhair al-Maliki was removed from his post as the Central Criminal Court’s chief investigative judge and transferred to another post.

Such is the political process out of which today, quietly, democracy was born in Iraq.







(1) Liberty before Liberalism, Quentin Skinner, p. 84.

(2) Ibid.p. 72, emphasis mine.

(3) "An Indelible Moment," Washington Post, David Montgomery, January 29, 2005.

(4) "For many expatriates, casting ballots brings jubilation, expectations," Boston Globe, Suleiman al-Khalidi, January 29, 2005.

(5) "First Steps Toward Democracy," Baltimore Sun, Jonathan Pitts, January 29, 2005.

(6) "Heavy Bloodshed in Iraq Only Expected to Worsen on Election Day," Democracy Now! Amy Goodman, Juan Gonzales, and Dahr Jamail, January 28th, 2005.

(7) "Iraqis Discuss Voting, Or Not, in Elections Held Amidst Chaos," The NewsStandard, Dahr Jamail and Brian Dominick, January 18, 2005

(8) "As Election Nears, Iraqis Remain Sharply Divided on Its Value," New York Times, Jeffrey Gettleman, January 23. Jassim, a grocery store owner in the district of Khadimiya, responds that "it is only the political parties that are using this talk. And it seems as though there are those who would like to cause a divide. But it will never happen, because we have never had this divide," in "What Iraqis Think of the Elections," Islam Online, Dahr Jamail, January 25, 2005.

(9) "Iraqis Discuss Voting, Or Not, in Elections Held Amidst Chaos," Jamail and Dominick.

(10) Ibid.

(11) Ibid.

(12) "Vote Where, How, and for Whom?" Inter Press Service, Dahr Jamail, January 26, 2005.

(13) "The Vote, and Democracy Itself, Leave Anxious Iraqis Divided," New York Times, John Burns, January 30, 2005.

(14) "First Steps Toward Democracy," Baltimore Sun, Jonathan Pitts, January 29, 2005.

(15) "Iraqis Discuss Voting, Or Not, in Elections Held Amidst Chaos," Jamail and Dominick.

(16) "I don’t know why I was arrested," explained Ahmed, a 38 year-old farmer, who discussed his journey through the military detention system for 10 months that began during a home raid on August 13th, 2003, and which found him experiencing treatment like having mock executions, being bound and having his head covered for days on end, and being held at a camp near Basra in the scorching summer temperatures. "At that camp they hung a sign where we stated that said, The Zoo," he explained. He claims that his home and fields were searched and no weapons were found. During his detention he witnessed the sexual humiliation of fellow prisoners and regular beatings, "Collective Punishment," Dahr Jamail, January 14, 2005.

(17) El Tiempo, July 31, 2001.

(18) "The Vote, and Democracy Itself, Leave Anxious Iraqis Divided," New York Times, John Burns, January 30, 2005

(19) "Iraq: Outlook for National Elections and Governance," The Washington Institute for Near East Policy, Gregory Hooker, January 2005, p. 27 ( http://www.washingtoninstitute.org/html/pdf/HOOKER-FINAL.pdf
)

(20) Ibid., p. 27.

(21) Ibid., p. 28-9.

(22) Ibid., p. 29.

(23) "Iraq: The Devastation," TomDispatch, Dahr Jamail, January 7, 2005 ( http://www.tomdispatch.com/index.mhtml?pid=2109 )

(24) "Newly Released Investigative Files Provide Further Evidence Soldiers Not Held Accountable for Abuse," American Civil Liberties Union, January 24, 2005

(25) "Iraq: Torture Continues at the Hands of New Government," Human Rights Watch, January 25, 2005.


Posted by Omar_Khan at January 30, 2005 09:33 PM