LIANE HANSEN, host:
The U.S. military has announced that a force buildup in Iraq is now complete. An additional 28,500 American troops have been deployed. Most are in and around Baghdad. The strategy aims to create enough calm so that the Iraqi government can take the necessary political steps to bring stability and order to the country. So far, the progress on that score has been less than impressive.
Noah Feldman is a professor of law at New York University. He advised the transitional team in Iraq on the writing of the country's constitution, and he's on the phone. It's nice to talk to you again, Noah.
Professor NOAH FELDMAN (Law, New York University): It's a pleasure.
HANSEN: We just heard Defense Secretary Robert Gates say the United States is disappointed with the progress on the political front. What about you? How would you assess the state of the Iraqi government?
Prof. FELDMAN: The progress has indeed been disappointing, but to put the blame at the feet of the government is, I think, a little bit misplaced. It's extremely difficult to negotiate a political settlement when bombs are going off all around you, when mosques are being blown up right, left and center. And the truth is that as much as we need the politicians to reach an agreement, to ask them to do so before there is some, sort of, stability on the ground then the military and security standpoint is probably unrealistic.
HANSEN: Drawing on your experience as the senior constitutional adviser to the Coalition Provisional Authority in Iraq, in retrospect, can you point to a moment that may have foreshadowed the current difficulties that the government in Iraq is having?
Prof. FELDMAN: For the government, I would say it was the moment when the Sunni political representatives essentially walked away from the constitutional negotiation and said that they were not prepared to participate because they didn't think their constituency was ultimately going to be sufficiently supportive of them. That meant that the country was not going to reconcile itself politically. There are going to be three factions - Kurds, Shiite and Sunni - and that one was going to be the odd man out. And I think that's opened the door for a lot of the serious, serious stalemating that we've seen subsequently.
HANSEN: Okay, pick your best-case scenario then. Let's say the government is able to begin to act effectively and promptly. Is it likely that that would tame some of the violence in Iraq?
Prof. FELDMAN: I'm very skeptical that the direction could really go politics first, security second. Any place in the world where there are people with guns, they know - the people with the guns know - that if the politicians agree and they don't like what they have agreed to, they can veto it effectively by blowing things up - by blowing up mosques, by blowing up civilians. We know this from the Israeli-Palestinian conflict and it's just as true in the context of Iraq.
By contrast, when the people with the guns realized it's time to put them down, and try to get on with life, at that point, the politicians become incredibly useful because they are the ones who sit down, negotiate a deal, and promise that, in fact, that it will be abided by.
HANSEN: Prime Minister Nouri al-Maliki however has promised to disarm the militias and that is a step that would have the most immediate effect, but what kind of progress has he been able to make?
Prof. FELDMAN: Well, that's a perfect example. It would be wonderful to disarm the militias and it's great that Prime Minister Maliki feels comfortable saying that. But the question is, with what army, with what police force? The Iraqi army and Iraqi police force are so shot through in many cases, not exclusively, but in many cases, by militia members that it's extremely difficult to see how that could actually be brought about. So there's a tendency, at least on my part, to be skeptical - not of the sincerity of Malaki's commitment, but of his ability to actually carry it out.
HANSEN: Reconciling the Shiite, the Kurdish and the Sunni factions is the overriding goal in Iraq now. Why do you think that's proven to be such an intractable problem?
Prof. FELDMAN: I think it's the fact that the state does not have the kind of security apparatus that enables basic law and order to prevail. I think if people are not afraid of being shot when they walk out the door, or being blown up when they walk out the door, then they can get along with the business of living; and the business of living requires getting along with your neighbors.
But, on the other hand, if the police can't protect you properly, if the military can't protect you properly, if we, the United States, with our military might can't protect you properly, then you as an ordinary person need protection from somewhere and that leaves you to join or sympathize with the militia. In just the same way that a person or a kid growing up in a bad neighborhood might join a gang, not because he wants to join a gang, but because everyone else is and he's afraid.
HANSEN: So what would have to happen for a stable and democratic government to actually arise in Iraq?
Prof. FELDMAN: Our surge would have to - working alongside Iraqi troops and police officers - actually dampen down the violence in a significant way. There might still be isolated suicide bombings, but it would have to be the case on an ordinary day, a person living in an ordinary neighborhood knew that random gunmen wouldn't come into his house, rob him, threaten him, kill him.
If we can achieve that kind of stability, then I think the politicians will be able to step in and cut the kind of deal that they frankly cut before in the past. We've seen that they are able to reach agreement on the constitution and on the interim constitution and on forming a government slowly, but they did do it. And I think under those circumstances, we could see success.
HANSEN: What do you think then? What else can the United States do to influence events in a more positive direction?
Prof. FELDMAN: Well, we're doing what we realistically think we can now with the surge. You know, John McCain said he thought it was not going to be enough and that may turn out to have been the case, and it - I think it's quite probable that the surge ultimately will not succeed. But we should be, at least, doing what we are doing, which is trying - to see if we can achieve greater stability.
When that happens, we should be pushing the Iraqis, we should be calling for benchmarks the way Congress is doing, and we should be realistic about making sure that those benchmarks are things that are actually capable of being implemented in reality.
HANSEN: So maybe, this is a worst-case scenario. Say, there is a failure to establish a state or a democratic government in Baghdad to get one of those governments to hold on, what lesson would the United States draw from that?
Prof. FELDMAN: If this surge fails, if we're not able to create a basically stable government there, then we're really left with two choices - a long protracted civil war in which we remain in place trying to stop it from becoming an all-out genocide; or a faster burning, more intense civil war that follows our withdrawal. And we'll have to choose between those two options. Neither is attractive, both will involve the death of many more Iraqis that have died previously and I think that would be a very pressing decision.
It will probably be one made by the next president of the United States regardless of whether it's a Republican or a Democrat because President Bush is unlikely to back away from the troop surge during the term of his presidency.
HANSEN: Noah Feldman is a professor of law at New York University, and his books include "What We Owe Iraq." Thanks so much for your time, Noah.
Mr. FELDMAN: Thank you so much for having me.
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