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Iraqis Press Toward Constitution Deadline

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Iraqis Press Toward Constitution Deadline


Iraqis Press Toward Constitution Deadline

Iraqis Press Toward Constitution Deadline

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  • <iframe src="" width="100%" height="290" frameborder="0" scrolling="no" title="NPR embedded audio player">
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Iraqi leaders work to draft a constitution by Aug. 15, spurred by U.S. pressure. What will the charter address? What will it lack? NYU law professor Noah Feldman, a past adviser to the Coalition Provisional Authority in Iraq, offers his insight.


In two weeks, if all goes according to plan, Iraqis will have a draft constitution. August 15th is the deadline, and lawmakers are resisting proposals to extend that deadline another six months to resolve such contentious issues as women's rights and the role of religion in government. New York University law Professor Noah Feldman advised Iraqis on last year's interim constitution and he joins me now.

Welcome to DAY TO DAY.

Professor NOAH FELDMAN (New York University): Thank you for having me.

BRAND: The Bush administration is pushing Iraqis to meet this deadline and even if that means approving a constitution, as one US official put it, quote, "without the bells and whistles." What does that mean?

Prof. FELDMAN: It means, in practice, that some of the hardest issues will simply be shelved instead of being resolved directly. That means, for example, that the question of just how independent the Kurdish region will be might be fudged in the constitution; we might not get an explicit answer to it. The status of the city of Kirkuk, they might just leave it for the future. And probably when it comes to Islam and family law and the rights of women, we'll see some language that just declares that they all fit together wonderfully without actually resolving those tensions between them.

BRAND: Well, then is that a recipe for disaster in the future?

Prof. FELDMAN: Not necessarily. Sometimes the only way to get a constitution signed is if the different people who are sitting at the table are prepared to compromise and defer certain decisions. We had that in the drafting if the US Constitution when the most contentious issue, and I think the most morally troubling one--that of slavery--couldn't be resolved by the people there. The Northerners felt one way and the Southerners another, and they essentially agreed to disagree and to defer the question. And although eventually that did lead to the Civil War, it also bought 70 years for the new republic.

BRAND: But with the Iraqi Constitution, the Kurds are suggesting that they may not ratify it if their issues aren't resolved now.

Prof. FELDMAN: That's the Kurds' ultimate bargaining chip, and it's the reason that they're going to get more or less what they want in this constitutional draft. Their threat is, `Well, we can leave the table. We can walk away from the constitutional process. We'll decline to ratify the constitution,' and then they don't say it but they imply it, they're going to declare independence completely. So they have the forces to do that should they wish, and so issuing that threat at this stage helps them get what they want in the final draft.

It's simply the fact that although most Arab Iraqis, Shia and Sunni, object to the Kurds' demands for autonomy, they really have no choice but to accede to them because the Kurds have their own light infantry that's pretty big--50 or 60,000 troops--they've been good friends with the US recently and so there's nobody to take away their autonomy from them. So the rest of the country is faced with either a guaranteed secession or the possibility of some perhaps secession at some future date. And between those two, it's an easy call, so I think that's why we'll see a compromise on those issues. But again, some of the issues are really so controversial--like the city of Kirkuk with its immense oil field beneath it--that I think that will just be deferred to a later time.

BRAND: And what about the rights of the Sunni minority?

Prof. FELDMAN: The Sunni minority is unlikely to get expressed guarantees of rights. Probably its rights will come from more general guarantees of the equality of all citizens before the law, and perhaps there may be some provision similar to the one in the transitional law ensuring that the resources of the state shall be fairly distributed. That's a very vague way of putting things.

The greatest worry for the Sunnis, ironically, is not denominational discrimination. Their greatest worry is being cut out of the oil revenues, because the oil is concentrated in the Kurdish north and in the Shia south. And the Sunnis, who have dominated the country in the past, are to some extent oilless, so that's actually--the distribution of resources is actually a much more important issue to the Sunnis over the long term than just the direct question of discrimination.

BRAND: And how much of a hand is the US playing here?

Prof. FELDMAN: It's a very tricky question because during the transitional process, the US tried to allow the Iraqis who were involved to do the drafting and the work and I think that mostly happened. The problem was that the US had largely chosen those Iraqis. This time around, the Iraqis are not handpicked by the US; they were chosen by a national electoral process. And as a consequence, they're not responsible to the US. Ultimately, they're responsible to their own constituents. The US is putting a lot of the diplomatic pressure on and we've got, don't forget, 150,000 troops in the country risking their lives and that's also the reason we're pressing for things to happen, but it gives us a lot of leverage. The trick, though, ultimately is the Shia and the Sunni and the Kurds could say no to us because our ultimate threat--the US' ultimate threat--is just to leave. And right now the US is not prepared to leave because of the instability that would follow that.

BRAND: Could say no to us in terms of...

Prof. FELDMAN: Well, they could simply say, `We refuse to ratify this constitution now.' There was a wonderful quote reported, I believe, in The New York Times today from one the Kurds in the constitutional committee who said, "We don't want to resolve this in a hurry. It's the Americans who want to resolve it quickly because they have this exit strategy that they're trying to pursue." I thought that was extremely telling coming from somebody who's a part of this process and who is nominally working alongside the Americans. And I think it, frankly, bodes ill for us if we are in a rush to get this done for some exit strategy sort of reason. It seems to me that getting the constitution done right is more important than getting the constitution done quickly. Some external pressure is probably valuable in order to get Iraqis to focus and do a deal, but overdoing that pressure could really be potentially disastrous.

BRAND: New York University law Professor Noah Feldman, thank you.

Prof. FELDMAN: Thank you for having me.

BRAND: Stay with us on DAY TO DAY from NPR News.

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