In his new book, What We Owe Iraq, Noah Feldman examines the nation-building project that the United States has undertaken in Iraq, using it to outline a set of ethical principles that any nation-builder must follow on its way towards creating a new democractic state. The first step, he writes, is to "immerse oneself in what information [is] available about the country." As a scholar of both constitutional law and Islam, Feldman was uniquely situated to understand how democracy might develop in an Islamic nation like Iraq, and in early 2003 the Coalition Provisional Authority asked him to help with planning for Iraq's constitutional design. Much of what he learned there informs his book's conclusion: 'What we ultimately owe Iraq is to let the Iraqis grasp nationhood and sovereignty for themselves—and keep it, if they can." How we get there, however, is a more difficult matter.
Feldman, who is an Associate Professor of Law at New York University, recently sat down with MotherJones.com to talk about the ethics of nation-building, his experiences in Iraq, and what we can expect from the upcoming elections there.
MotherJones.com: In your book you define nation-building as basically creating a democracy without holding elections right away. Can you outline briefly the responsibilities involved in nation-building?
Noah Feldman: Right, the reason you're doing nation-building is that you can't immediately hold elections. If you could hold elections right away, you could skip the nation-building process almost completely and just leave. But I'm describing situations where for whatever reason—a lack of security, say—it's just too soon to hold elections.
So the first duty of any nation-builder, under conditions of occupation, is to recognize that it is exercising political power on behalf of the people whom it is governing. And in that capacity, it has to take responsibility for acting in their interests, just like any other democratic government. So the nation-builder has to allow for oversight by the people who live in the country—through allowing free speech, free assembly, and encouraging active participation through various consultative bodies.
MJ.com: Can you explain how your concept of nation-building differs from how it's been defined in the past—by, for instance, the Hague Convention or the League of Nations?
NF: Sure. Under the Hague Convention, the idea was that the occupier essentially held the occupied people in trust for their rightful sovereign—who was assumed to own those people himself. Under the League of Nations this view changed a little bit, so that now the occupier was supposed to hold in trust the future of the people who were being governed. They were assumed to be unready to rule themselves, so the view was that the occupying power would hold their political development in trust, as if they were children who needed to be brought up self-government.
Under the view that I'm proposing, the only thing that the occupier holds in trust is the temporary authority to govern. It's exactly the same as when we elect a government, that government has authority only until the next set of elections. So my view entails much greater obligations of responsiveness and oversight than any other models do. And it assumes that in the relatively short-term future, authority will be transferred to the people who are being subjected to occupation, in order for them to divine their own political interests, and govern themselves.
MJ.com: Now, way back in early 2003, Lt. Gen. Jay Garner wanted to hand over Iraq as quickly as possible to the Iraqis. Do you think this was a mistake to try to avoid nation-building early on in Iraq?
NF: Well, that decision was above Jay Garner's pay-grade. It wasn't that Jay Garner had this odd strategic vision. He was simply hired by the administration and sent out to be head of Office of Reconstruction and Humanitarian Assistance, because the Bush administration did not believe that it was capable of or desirable to govern Iraq. This was an administration that didn't want to do nation-building. Immediately on the fall of Saddam, they said, a new government could emerge. Somewhat by magic.
So that's why Jay Garner was given a job that included no governance component at all. He was just a soldier doing his job, making sure nobody starved—and nobody did—and getting reconstruction projects underway, which he did a little bit of, although probably not as much as even he would have liked to have done, because it turned out that the political disarray was so great and the looting meant that the job of reconstruction was really so much more enormous than anyone had really imagined.
MJ.com: Now eventually the administration did get around, grudgingly, to trying to do nation-building in Iraq. You emphasize in your book that providing security is the first priority, something the U.S. failed to do in Iraq?
NF: It's the first, last, and middle priority. As a matter of international law, the occupant has responsibility to preserve order. As a matter of basic common sense, if you're occupying a country, you need to make sure that ordinary people can go about their daily lives without being endangered or fear for their lives, and furthermore that you're the power in charge for the safety of your own troops. And as a matter of basic ethics, if you have eliminated the government of a place, you have a pretty straightforward ethical duty to provide government.
MJ.com: As a follow-up, you wrote something really interesting in the book that builds off philosopher Robert Nozick's notion of "protective associations" in states of anarchy. You mention that, in the absence of security, Iraqis tend to revert to their pre-existing identities in order to find protection, which is a lot of Iraqis are now strongly identifying with Shi'ism, or Kurdish nationalism, or Arab tribal identities.
NF: I think that's a central piece of the story that's been largely overlooked in most of the thinking about the topic. What I did is I took from Robert Nozick's thought experiment about what people would do under conditions of anarchy. Now he noticed that under these conditions, you need someone to protect you, you need to join some sort of protective association. There's an analogy to being a kid in a bad neighborhood, where everyone else is joining a gang—you obviously have no choice but to join some gang, because otherwise you won't be able to protect yourself.
What I added to that was to observe that under conditions of anarchy, where everyone else is also looking for this sort of protective association, you're likely to look for the most salient marker of identity that you can find. It doesn't really matter that it be ethnicity or religion. It matters that it be an identity that other people will also be likely to rely on, since you're in a race with everyone else who's also trying to find some protective group.
So one of the reasons that we've seen such a strong focus on ethnic, tribal, denominational, other identities in Iraq, is that when the state collapsed, people had little choice but to find some marker of identity that they thought would have some chance of working for them. And these were the identities that were there. We didn't create these identities—they already existed—it's that we turned those identities into focal points for self-organization, by virtue of our failure to provide security. And we therefore made these identities—ethnic/denominational—much more important for Iraqi politics than they otherwise would have been.
MJ.com: Let's talk about the upcoming elections. Can you explain briefly what each side in Iraq (the Kurds, the Shia, the Sunnis) wants as far as the future of the country is concerned?
NF: Well, the Kurds want to take the de facto autonomy that they've had for the last decade or so in the northern part of the country, and pin that down through a form of federalism that makes their autonomy legal, not just practical. They're willing to participate in the government of Iraq because they understand that the U.S. is against their declaring independence, for security reasons. But they'll stay in Iraq only in exchange for a strong recognition of their autonomy.
The Shia want to express their position as a majority in the government—that's why [Grand Ayatollah Ali] Sistani has been pressing so hard for elections—and they would like to use that authority to arrange the government in such a way that resources are distributed to them fairly, which has not been the case in the past. And some Shiites, probably a significant number, also would like to see some expression of their religious identity through the state. More Islamic law, enshrining Islamic family law, that kind of thing. It's hard to know exactly how many Shiites want this, but the ones that do are the best organized politically, so they're likely to do well in the elections.
A final group, the Sunnis, are in a much more uncertain position. Some of them would like to recapture the state, and are participating in the insurgency, but those people are not going to participate in the elections. Other Sunnis simply want to avoid having happen to them what they did to the Shia and the Kurds, which is to say marginalization and sometimes much worse.
MJ.com: Wouldn't it be rational for many Sunnis to continue supporting the insurgency rather than simply consign themselves to a permanent minority? So how do you convince them that it's in their interests to participate in democracy?
It's very tricky to do, but crucial. One thing is that we have to show them that they can't succeed militarily. Because as long as they think they can get even more power through the insurgency, some of them will. Now what seemed like a really crazy view 18 months ago—no one thought the Baathists were ever going to come back into power. But now you look at how well the insurgency's doing relative to the U.S. and you think, well, maybe they can stick it out for another two-three years, kill another few thousand US troops, kill another 50,000-100,000 Iraqis, and come back to power. That's not a crazy thing for them to think. It's terrible to contemplate it but it's not irrational of them.
Anyways, second, we'll also have to make them strong political guarantees—for instance, a second chamber in the new government that gives them disproportionate representation like in our U.S. Senate. Potentially they'd need to be offered stronger roles in other parts of the government, and of course strong constitutional guarantees for the equal distribution of resources across the country. The goal is to show them that even though they're a minority, they won't end up completely excluded from the distribution of public goods. They're worried about this because they know how it's done.
MJ.com: Now it seems clear that many Iraqi Shi'ites are jazzed about taking power via the ballot box. But what do kind of understanding do they have of constitutionalism? Do they understand the importance of an independent judiciary? Minority rights?
NF: I think they're gradually getting it, but they don't want to have minority rights be an excuse to avoid the initial elections. The Shi'a want it on the record that they are the clear majority. Now you can't really blame them for having that aspiration, cause they've always been the majority but have never been authorized to act as one.
But the minute that these elections are over, and they form a government, suddenly they're going to be in a position where they actually have to be the ones responsible for what's going on in the country. That will tell them pretty quickly that they need—they're not going to be able to govern by pure coercive means. In a diverse, pluralist democracy, you can't just govern by ordinary police powers, you needed to have buy-in from tons of other groups. And that's why they're going to have to turn towards institutions like independent judiciary, and constitutional guarantees and things like that. Those rights are necessary to good government, they're necessary to avoid a permanent civil war
This goes to an underlying point about when guarantees of rights work in a constitution. It's my belief that these rights don't work when they're just a declaration on a piece of paper. The world is littered with constitutions that have written guarantees of rights but that don't actually deliver rights. What differentiates the ones where rights are real from where rights are fake is that it's in the initial interests of the majority to actually deliver these rights. Then there's time for those rights to catch on institutionally, and then people will start to believe that hey, these rights are a fundamentally crucial part of the civic. It takes time for that to catch on.
MJ.com: Now you believe that eventually the big Shiite "bloc," which makes up nearly 60 percent of the country, will eventually dissolve as ordinary politics and interests take over?
Yeah, it's essentially unheard of anywhere in the world for sixty percent of the population—who live in different places, have different economic interests and political views—to hold together as a governing majority indefinitely. To look at other examples, the ANC still governs in South Africa, it's still the dominant party, but it's become a much more complex entity over the years. There's no reason to think Shi'ite Iraq is uniquely positioned for communal solidarity.
In fact, the other thing to add is that the main Shiite List is not a single party; it openly identifies itself as a list of political parties. So it's already prepared to recognize that there are disparate interests, different political visions, other points of disagreement—all of which is good. In the long run, ordinary politics will be helped by there being a range of different views and ideas to be expressed.
MJ.com: Let's say elections go off well, and all the major groups come to the negotiating table, but then they start bickering. Or let's say the Shi'ites refuse to Is there any part that the U.S. or the UN can play in facilitating the discussions over the constitution, or is it completely out of our hands by now?
NF: I don't think the US should be taking substantive positions on how the Iraqis should get to specific outcomes. Frankly, I think the way that this constitution has a best chance of lasting is if it's essentially negotiated by the people who then have to live with it. They're not making concessions to us, they're making concessions to each other. On the other hand, during this period we're going to remain as a security force in this country, and we do have one piece of significant leverage, which is our potential leaving.
With respect to the United Nations, it's influence will likely be as a bully pulpit. The international community has some leverage, it can say, "If you do these things in your constitution, like guarantee these human rights things, then you can be accepted by the international community and paid off well." That's a form of pressure, but a relatively indirect one frankly. The world is full of nations that are part of the community of nations that don't respect rights.
MJ.com: Now tell me about drafting a constitution—since you were involved in guiding the write-up of the Transitional Administrative Law. How do you find the balance between guiding an occupied country towards democracy without getting too heavy-handed?
NF: I should say, my role during the drafting of the TAL was not an oversight role, it was a purely consultative role. I was no longer working with the US government, I was working directly with the Iraqis on a pro bono basis. But the U.S. was involved in this process, and here the U.S. did try to effect substantive outcomes in this document, by exercising its own influence. I think that on some points we probably went further than we should have done, in terms of particularized political solutions.
My basic view on how this should be done is this: It's fine to put on the table ideas like: "Hey, the formulation of religious liberty in international declaration of human rights is a pretty attractive one, maybe you'd like to use this." But I don't think it's a good idea to say, "You must adopt this formulation or else." Because if you do, sure, the Iraqis will adopt it, but they won't adopt it on the basis of acceptance, they'll adopt it in order to satisfy an outsider. Then when the time comes for that provision to be implemented, they won't see it as something in their interest, and they won't follow it. That's how you generate a paper constitution that no one will ever follow.
MJ.com: Can you give an example of a time when the US did go too far in demanding or suggesting a certain outcome?
NF: Sure, at one point, when negotiations were ongoing, ambassador Paul Bremer made a public statement in Hilla, where he said publicly, "Don't worry this won't be an Islamic constitution." This was an enormous mistake. First of all, it achieved the exact opposite of what he presumably wanted it to achieve—it strengthened the hand of the Islamists, by making it look like the US was trying to hold them out, and therefore required the US to make many more concessions than they would have otherwise done.
The question of whether Iraq is going to have a state religion and what the role of that religion is going to be, that's just none of our business—that's a question for Iraqis. We might have a view on it, we might tell them, "We have a pluralism, look how well we've done with separation of church and state." But when Iraqis answer by saying, "Thank you very much, but we have no interest in that," then the appropriate response is, "Okay, it's your constitution." Not: "You may not have this!" That's absurd. And it was shown to be absurd relatively quickly, because the constitution (TAL) is more Islamic as a result of Bremer's announcement.
MJ.com: Now in your book you make the good point that elections should not be the end-point of nation-building. But don't you think that's essentially what we're seeing in Iraq?
NF: Well, the first point is that just because you've elected a government doesn't mean a government can actually govern. You haven't accomplished nation-building just by electing a government, since a nation-state requires institutions that are actually running the country and protecting its borders. I am worried that some people in the US government, and certainly the general public, may look at the fact of Iraq's elections and say, "OK we fulfilled our obligations, we held elections, now let's roll, we're out of here." That really could be disastrous—it could lead to a rapid and premature withdrawal that plunges the country into civil war.
MJ.com: Do you think there's a possibility that the US presence in Iraq is actually exacerbating some of the sectarian/ethnic tensions, how that needs to be weighed against the security benefits we are providing?
NF: My honest view is that the deeper we get, the more we will start exacerbating these tensions. For example, we haven't been able to get the Iraqi military going. So the U.S. has ended up relying heavily on the only effective Iraqi fighting force available—the Kurdish militias—for security. Now that can have the effect of inflaming sectarian tensions in a place like Mosul, which is a mixed Arab/Kurdish city, and where National Guard units are basically Kurdish fighters. So yes, we do find ourselves in that situation sometimes, invariably because we have been insufficient in terms of providing our own manpower and in terms of successfully training the Iraqi armed forces.
But our absence could also do a lot more to inflame the situation. The main thing that keeps the sectarian tensions going is precisely the sense that there's no state there. So that's the tradeoff. A point could arise where our presence is only making things worse, but I don't think we've hit that point quite yet.