Seven Questions: The De-Bremerification of Iraq

Iraq's parliament has finally passed a long-awaited new law aimed at allowing former Baathists to return to government jobs. Amb. Feisal al-Istrabadi, one of the “founding fathers” of the new Iraq, is optimistic about the legislation and says Iraqis are just undoing mistakes made by the United States.

Amb. Feisel al-Istrabadi at the United Nations.

Foreign Policy: Iraqs Parliament just passed the Accountability and Justice Act, the official aim of which is to let former officials from the Baath Party back into the government. Do you think its a serious step toward political reconciliation?

Amb. Feisal al-Istrabadi: What happened was that Iraqis realized that the de-Baathification order that was promulgated by Amb. Paul Bremer during his term as the civil administrator of Iraq was overly broad as drafted, and much more overly broad as applied. It captured a large number of people who were innocent of any wrongdoing by any objective measure and were deprived of the ability to earn a living and support their families. The current law attempts to, at least on its face, reverse this trend. In theory, yes, it should be a positive step toward reconciliation. But of course how the law is applied becomes extremely important.

FP: The U.S. Government Accountability Office has found that the Iraqi government hasnt spent much money on reconstruction projects, in part because it doesnt have the technical capacity to do so. Is the hope that the new de-Baathification law will remedy this skills deficit?

FI: We have this deficit because Paul Bremer threw out administrators at multiple levels from hospitals, schools… forget about the ministries. The consequence of that has been that we lost a lot of technocrats. A lot of people who know how to make the trains run on time have been forced to live at home without any pensions over the last five years. You have to remember, the public sector in Iraq is much wider than it is in the United States, particularly after the sanctions. Everybodys in the public sector. If youre a teacher, youre in the public sector; if youre a professor, youre in the public sector; if youre a bank employee, youre in the public sector. When Bremer says, All we said is that they couldnt work in the public sectorthere is no private sector! There are no private banks in Iraq; there are no private universities in Iraq; there are no private elementary schools in Iraq; there are no private hospitals in Iraq. Theyre all public.

FP: When you want to bring skilled people back into the government, how do you tell a good Baathist from a bad Baathist?

FI: Youre talking about destroying peoples careers, destroying their lives, and destroying their ability to earn a living. So if youre going to err, you have to err on the side of caution. The standard ought to be whether you can establish to some reasonable degree of certitude that the individual has engaged in some culpable behavior. Mere membership in the organization cannot be culpable behavior, because we know that the overwhelming majority of those who joined the Baath party were, in one way or another, forced to join the party. There has to be a forum for that to be established; there has to be some sort of at least quasi-judicial proceeding. Unfortunately, Ambassador Bremers order failed to take any of that into consideration, and he just wholesale abolished entities with the stroke of his pen, and fed the insurgency directly.

FP: A lot of Sunni Arabs have already criticized this new law, and it passed over Sunni Arab objections in Parliament. Doesnt that suggest that it didnt go far enough to alleviate sectarian concerns?

FI: The majority of the members of the Baath party were Shia, but in the manner in which Ambassador Bremer allowed the then-chairman of the de-Baathification comission, Dr. Ahmad Chalabi, to apply the law, a very high proportion of the Shia who were members of the Baath party were allowed to continue to function in their positions. The burden of being removed from office fell disproportionately highly on Sunnis, to the extent that the Sunnis of Iraq began to call it de-Sunnification rather than de-Baathification. So I understand if there is some skepticism on their part.

FP: You mentioned the need for a higher standard of evidence when someone gets purged for being a high-ranking Baathist. The new law requires judicial review in de-Baathification cases. Is Iraqs judicial system up to the task?

FI: One of the great surprises I found when I returned after more than three decades in exile was that the regular judiciary, although it had problems, had survived with its integrity intact. Thats why Saddam Hussein created a series of special or exceptional courts, outside the normal judiciarybecause he wasnt able sufficiently to manipulate the regular judiciary into doing his bidding. So, the judiciary, by and large, is probably perceived as being relatively independent and capable. The key is to ensure that the political class does not attempt to influence decisions of the judges.

FP: Whats to say that sectarian leaders in the government wouldnt take a page out of Saddams book and go around the judicial review process entirely?

FI: Im not going to suggest to you that Iraq has turned into some magical kingdom where these things are impossible. However, the Iraqi political class has done this. We Iraqis were telling the Americans back in 2003 that they had gone too far. So the idea that we were somehow taken kicking and screaming into doing this is just absurd. The law may not have gone as far as some wanted, perhaps not as far as the U.S. Embassy wanted, although its interesting that this law is a repeal of an order imposed on Iraq by an American. We are in fact cleaning up for Ambassador Bremer here, as we are for so many things that he did.

Now, it takes time to get these things done in Iraq. Take the example of a mature and sophisticated democracy such as the United States and ask you if youve been able to resolve such problems as, oh, I dont know, immigration reform? Were expected to pass legislation, one bill every hour, on the hour, despite the conditions that we have to confront, while the U.S. Congress takes months and years to resolve issues, if it ever gets around to resolving them.

FP: Do you find that the new U.S. team in place, Gen. David Petraeus and Amb. Ryan Crocker, understands the country any better than Paul Bremer did?

FI: No question. The most important faculty that Ryan Crocker and David Petraeus have is: They listen. Crocker is fluent in Arabic, but thats secondary. You have a perceptive mind thats willing to listen, both of them, really, and in some respects the results speak for themselves. Paul Bremer arrived in Iraq knowing it all. When he first announced his de-Baathification order, which came out like a bolt from the blue, my political mentor [Adnan Pachachi] said to him, Look, Iraqis are accustomed to having a military force remove a previous government. Effectively, what youve done is to make a coup dtat in Iraq. Its different in that its a foreign army, but effectively its a coup dtat. There is an expectation in the population that the day after the coup, the top leadership having been removed from office, everybody goes back to work the next day and the machinery of the state continues. Bremers response was, Nope, this is a new day in Iraq. Well, youve seen the new day over the last five years. He had an incapacity to listen and he was surrounded by people who did not know the country.

Feisal al-Istrabadi was a lead drafter of Iraq’s Transitional Administrative Law in 2004 and became Iraq’s deputy permanent representative to the United Nations from 2004 to 2007. He is currently a visiting professor at Indiana University School of Law.

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