On the Chimera of the Rule of Law in the New Iraq
Fans of the blog may well note that I've grown increasingly skeptical of the term "rule of law" over the past several years, mainly because I am not sure what it's supposed to mean, other than something we in the U.S. have that other countries don't and it is our American Burden to pass it on to them. Or something. Recent events in Iraq have only come to fortify this conclusion of mine, though I have to add the U.N. as coequal culprits, the institutions liberals love and conservatives despise and I've come to lose nearly all respect for in my time in Baghdad.
If "rule of law" means anything, it's supposed to mean noninterference on the part of other, supposedly more political, branches of government in the affairs of the judiciary, and that, mostly I guess as a consequence, "law" should reign supreme over other interests and forces in the social order. That's as thin a definition as "rule of law" can come by. But recently, in Iraq, we know for a fact that an independent commission disqualified a number of candidates, including Sunni firebrand Saleh al Mutlaq, that the matter has gone to a court for determination, and that the US and UN are exerting pressure to have that decision reversed. Now it would take some form of idealism to imagine that the US and the UN were taking this position because they are just certain that the determination to exclude Mutlaq was just wrong as a legal matter. They are paying no attention to policy ramifications, they've just read the Accountability and Justice Law and they disagree with the conclusions made, really? Of course it's political. And yes the decision to exclude him was political, get the annoying Sunni removed, but the effort to reinstate him is also political, don't antagonize the Sunnis, neither one of these is "law" in the sense that "rule of law" is supposed to mean. These positions aren't dependent on statute or code or interpretations thereof, they are based on political preference.
Though at least with the Mutlaq episode, if one actually bothers to look at the law, plausible arguments can be drawn all around, because the law concerning who to exclude, and indeed the responsibility and authority of the Accountability Commission to do it, are matters of legal debate. Yet even when the arguments are more difficult to make, or better stated limitations of time and resources make the fashioning of good arguments impossible (precisely what happened in Bush v. Gore, the arguments of the Supreme Court were awful and as a result too overtly political, and time constraints made them bad--since then better positions have been developed), America hardly seems in the camp of the "rule of law" when it's political interests run contrary.
We know for a fact that America has quietly urged the Iraqis NOT to hold a referendum on the Status of Forces Agreement even though Iraqi law calls for it, because frankly America is afraid of losing the vote. Lawyers who knew something about Iraqi law we know for a fact, an absolute certainty, were told not to say anything, because anyone with an ounce of credibility would have pointed out the requirement for a referendum, and that's not what America wanted.
There are other examples involving the recent election crisis and how to count the time necessary to respond to presidential vetoes, but that's for another time and perhaps another forum. But it's very much about ignoring law and seeking to influence courts and institutions to ignore law, or to develop the flimsiest and most transparent of positions to circumvent law in a time crunch. Again, not necessary to develop in depth here.
The point is, in a fundamental manner, it's not about the Rule of Law, it never is, and it never was. The United States has a rule of law section in its Embassy, and I don't dount the sincerity of its personnel in their belief in this thing called a "rule of law" and in their sincere desire to spread the message of its importance to Iraq and elsewhere for the benefit of Iraqis. But those people aren't the ones who get to make the decisions when America's central political interests (consensual politics, lack of sectarian strife, and most of all, an on time election that permits and justifies a troop drawdown) are involved. When those core interests come into play, suddenly Iraqi law isn't so important, America's interests, or the UN's interests are more important. Heck you can even overhear the UN people at parties in the Green Zone say it, "nobody actually follows Iraqi law anyway" and "what are we supposed to do follow the law and watch the country go to pieces?" are two things I've overheard myself which I can relate without betraying confidences since they weren't told to me directly or indirectly, I overheard them. So there's the point then--law is secondary when other interests are involved.
In the old days, I suppose we could all just blame W. and say it has something to do with his disregard for law, but now the constitutional law professor is our President, and still, US interests are US interests. That's not to say they always control, because judges have interests in some level of autonomy, and Iraqi political actors have interests, and the UN has interests, and Iraq's neighbors have interests. Always is thus, and always shall be.
But what strikes me as silly is the naive belief that somehow, "rule of law", which given the thinnest definition above has to involve handing more power to the judiciary over decisionmaking in individual cases and in applications of statutes, can be "taught" to developing nations. The reality is that whoever the hell is doing the teaching has interests, and those interests are never going to be in perfect harmony with those being taught. And then they're not, the judiciary is going to find, understandably, some level of hypocrisy on the part of the teachers who are ignoring their own lessons when convenient.
So it seems to me the United States, and the United Nations, should probably stop spreading the message of "rule of law" like some fervent crew of maniacal evangelicals. At least in Iraq, both of them are looking increasingly ridiculous in the process.
HAH
If "rule of law" means anything, it's supposed to mean noninterference on the part of other, supposedly more political, branches of government in the affairs of the judiciary, and that, mostly I guess as a consequence, "law" should reign supreme over other interests and forces in the social order. That's as thin a definition as "rule of law" can come by. But recently, in Iraq, we know for a fact that an independent commission disqualified a number of candidates, including Sunni firebrand Saleh al Mutlaq, that the matter has gone to a court for determination, and that the US and UN are exerting pressure to have that decision reversed. Now it would take some form of idealism to imagine that the US and the UN were taking this position because they are just certain that the determination to exclude Mutlaq was just wrong as a legal matter. They are paying no attention to policy ramifications, they've just read the Accountability and Justice Law and they disagree with the conclusions made, really? Of course it's political. And yes the decision to exclude him was political, get the annoying Sunni removed, but the effort to reinstate him is also political, don't antagonize the Sunnis, neither one of these is "law" in the sense that "rule of law" is supposed to mean. These positions aren't dependent on statute or code or interpretations thereof, they are based on political preference.
Though at least with the Mutlaq episode, if one actually bothers to look at the law, plausible arguments can be drawn all around, because the law concerning who to exclude, and indeed the responsibility and authority of the Accountability Commission to do it, are matters of legal debate. Yet even when the arguments are more difficult to make, or better stated limitations of time and resources make the fashioning of good arguments impossible (precisely what happened in Bush v. Gore, the arguments of the Supreme Court were awful and as a result too overtly political, and time constraints made them bad--since then better positions have been developed), America hardly seems in the camp of the "rule of law" when it's political interests run contrary.
We know for a fact that America has quietly urged the Iraqis NOT to hold a referendum on the Status of Forces Agreement even though Iraqi law calls for it, because frankly America is afraid of losing the vote. Lawyers who knew something about Iraqi law we know for a fact, an absolute certainty, were told not to say anything, because anyone with an ounce of credibility would have pointed out the requirement for a referendum, and that's not what America wanted.
There are other examples involving the recent election crisis and how to count the time necessary to respond to presidential vetoes, but that's for another time and perhaps another forum. But it's very much about ignoring law and seeking to influence courts and institutions to ignore law, or to develop the flimsiest and most transparent of positions to circumvent law in a time crunch. Again, not necessary to develop in depth here.
The point is, in a fundamental manner, it's not about the Rule of Law, it never is, and it never was. The United States has a rule of law section in its Embassy, and I don't dount the sincerity of its personnel in their belief in this thing called a "rule of law" and in their sincere desire to spread the message of its importance to Iraq and elsewhere for the benefit of Iraqis. But those people aren't the ones who get to make the decisions when America's central political interests (consensual politics, lack of sectarian strife, and most of all, an on time election that permits and justifies a troop drawdown) are involved. When those core interests come into play, suddenly Iraqi law isn't so important, America's interests, or the UN's interests are more important. Heck you can even overhear the UN people at parties in the Green Zone say it, "nobody actually follows Iraqi law anyway" and "what are we supposed to do follow the law and watch the country go to pieces?" are two things I've overheard myself which I can relate without betraying confidences since they weren't told to me directly or indirectly, I overheard them. So there's the point then--law is secondary when other interests are involved.
In the old days, I suppose we could all just blame W. and say it has something to do with his disregard for law, but now the constitutional law professor is our President, and still, US interests are US interests. That's not to say they always control, because judges have interests in some level of autonomy, and Iraqi political actors have interests, and the UN has interests, and Iraq's neighbors have interests. Always is thus, and always shall be.
But what strikes me as silly is the naive belief that somehow, "rule of law", which given the thinnest definition above has to involve handing more power to the judiciary over decisionmaking in individual cases and in applications of statutes, can be "taught" to developing nations. The reality is that whoever the hell is doing the teaching has interests, and those interests are never going to be in perfect harmony with those being taught. And then they're not, the judiciary is going to find, understandably, some level of hypocrisy on the part of the teachers who are ignoring their own lessons when convenient.
So it seems to me the United States, and the United Nations, should probably stop spreading the message of "rule of law" like some fervent crew of maniacal evangelicals. At least in Iraq, both of them are looking increasingly ridiculous in the process.
HAH
Fascinating insider account. Keep up the great blogging!
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