- The Washington Times - Monday, November 10, 2003

The United States is treading water in Iraq at a heavy price in casualties and credibility. Since the liberation of Baghdad, the Coalition Provisional Authority has implemented but a shadow of security and the rule of law. Its ill-conceived plan for devolving power on the Iraqi people with the appointed Iraqi Governing Council in the vanguard has collapsed.

To escape from this quagmire, the United States should occupy and govern Iraq indefinitely with a Gen. Douglas MacArthur-like proconsul; criminally prosecute in televised proceedings former Iraqi officials, military or security personnel implicated in war crimes, crimes against humanity or shocking human rights violations; establish arbitration tribunals to settle legions of property rights claims; and, recognize the Baghdad-based Iraqi Jurists Association headed by Director Tariq Ali Saleh as an ombudsman to present Iraqi grievances against the United States to the proconsul and the media for scrutiny and appropriate redress.

The 24-member Iraqi Governing Council might be likened to the misnamed Holy Roman Empire, which was neither Holy, nor Roman, nor an empire. The IGC is neither genuinely Iraqi, nor does it govern, nor do its heterogeneous members council together. No member enjoys a crumb of popular respect. None is a nationwide figure. Half are traveling abroad at any particular time.

Since its appointment in August, the IGC has deadlocked over procedures for drafting a new Iraqi constitution and has accomplished nothing nontrivial. Clashing intramural, inter-ethnic, and interreligious ambitions paralyze. The Pentagon, Central Intelligence Agency, and the State Department champion their respective rival favorites. Some meetings attract but four or five attendees, an earmark of IGC irrelevance.

Instead of disbanding the IGC and the CPA for a towering and muscular proconsul, the United States continues to flirt with early and easy exit strategies. According to The Washington Post (Nov. 9, 2003), Civilian Administrator L. Paul Bremer is exploring the creation of a provisional Iraqi government to exercise sovereignty until a new constitution is ratified and inaugurated. Post-Taliban Afghanistan under President Hamid Karzai would be the model, a zany North Star by any standard.

Mr. Karzai is impotent outside Kabul. Under his provisional government, warlords have flourished, the quest for gender equality has eroded, crime has climbed, humanitarian aid workers have fled, and Taliban and al Qaeda have rebounded in the East and South. As a consequence of such intestine convulsions, international forces have been compelled to deploy outside Kabul.

Moreover, the fatal flaws in the IGC would not be cured by an interim Iraqi government: namely, the absence of popular legitimacy that stems from free and fair elections; the lack of unifying national figures or symbols; and, the irreconcilable ambitions and political cultures of Kurds, Sunnis, and Shi’ites and multiple factions of the same.

Last Saturday, I spoke at length with Dr. Ali Saleh of the IJA about conditions in Iraq. He covets no position in government, but craves democracy and emancipated minds. The IJA recently published an opus, “Transitional Justice In Iraq,” which sparkles with measured and longheaded proposals, for example, “free access to information and educating the young Iraqi generation in a spirit of tolerance and multiculturalism.”

Dr. Ali Saleh urged that the United States must remain the final sovereign word in Iraq for at least 20 years; that the current crop of time-worn Iraqi leaders would rip the country asunder for private gain at the first opportunity; that several Shi’ite and Sunni religious figures supported by the United States are implacably opposed to secular, popular government; and, that 99 percent of the Iraqi people are unable, at present, to grasp the real meaning and practice of democracy. Each day of the prevailing irresolute, fractured, and ad hoc United States rule in Iraq proves the truth of these observations.

The first act of a United States proconsul should be the appointment of United States civilian judges and prosecutors to try war crimes, crimes against humanity, and human-rights crimes that occasioned death or serious bodily injury. Iraqis universally distrust Iraqi judges because under Saddam virtually all were either corrupt or politically beholden to the Ba’ath Party.

The statute of limitations should be lifted for these heinous offenses. Punishment should include death, which would not be permissible with European Union judges. Defendants should be selected only where proof of guilt is overwhelming to pre-empt complaints of victor’s justice. Except for the right to jury trial, procedures should adhere to the United States Constitution. Televised proceedings are necessary to teach the Iraqi people that a genuinely new legal order has supplanted arbitrary and personalized justice.

Thousands of property disputes among Iraqis are legacies of Saddam’s confiscations and villainies. American arbitrators should be appointed to resolve these festering claims with a right to appeal to the proconsul in cases exceeding a monetary threshold.

Detractors might protest that the Iraqi people should not pay for the wickedness of Saddam’s regime. But not all Iraqis suffered equally. Thus, as in post-Soviet Central and Eastern Europe where new governments paid compensation for communist confiscations, the new Iraqi government should compensate for the abominations of the old, with perhaps a ceiling on individual awards.

Finally, the worrisome incidence of United States military abuses or error in detaining Iraqis and confiscating property justifies an ombudsman role for the IJA. For instance, according to former general and dean of the Police Academy Akram-AR Jassim Al-Mash Hadani, he and 14 other police officers were wrongly arrested by the United States last May 31 while discussing the training of new officers with John Meiklejohn of ORHA and detained for 42 days. The IJA has no political ax to grind against the United States. It can be entrusted with the public airing of complaints without political grandstanding or bias.

Bruce Fein is a founding partner of Fein & Fein.

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