Advantage Lami-Chalabi; Obama-Biden in Real Trouble in Iraq

Indications are that Vice-President Joe Biden came up against a wall of resistance when he visited Baghdad yesterday in an attempt at dealing with the recent row over de-Baathification. Apparently, both Prime Minister Nuri al-Maliki as well as the parliamentary speaker, Ayad al-Samarraie, went out of their way to defend the idea of “non-interference” in what they refer to as the Iraqi “constitutional” process. Also President Jalal Talabani, who had briefly indicated a position more compatible with the US preference for a delay of the whole de-Baathification process, seems to have fallen into line. At the end of the day, the three Iraqi leaders gathered for a meeting and settled for the worst possible outcome: Those excluded will simply have to await the outcome of their individual cases in the hastily-assembled special appeals tribunal for de-Baathification cases that came into existence only one week ago – the very solution advocated by Ali al-Lami and Ahmed Chalabi of the de-Baathification board all the way. Doubtless, “un-Baathifications” will be available for sale to those who can pay the right price (much in the way they were sold and bought last week) and may go some way to reduce the sense of marginalisation; after all, the aim behind this whole plot was probably just to secure a sufficiently sectarian climate before the elections, which has already almost been achieved. Before leaving, Biden expressed complete “confidence” in the Iraqi process.

Meanwhile, there are interesting reports to the effect that the Maliki government may still try to get a new board for the accountability and justice board appointed in the dying days of the current parliament. Back in December, the legislative assembly failed to approve the list of candidates submitted by the government, mainly due to Sadrist–Daawa disagreement about who should head the committee. Maliki supporters were visibly displeased at the rejection of their own candidate, Walid al-Hilli, and in December produced several documents and statements by Ali al-Allaq and others indicating their belief that the old accountability and justice board was “illegal” (these statements are the ones that have more recently been discovered by Iraqiyya and are now being used as ammunition against the legitimacy of the board). Yesterday, there were reports that a new, slightly revised list of candidates was on its way to parliament.

Importantly, this move should be seen as window dressing rather than substantial change as far as de-Baathification process is concerned. Added to the list of candidates is Falah al-Shanshal, the Sadrist head of the parliamentary committee for accountability and justice whom the Daawa party for a while tried to marginalise. He has been the most vocal supporter of Lami and Chalabi throughout this process, and so even if a new board is appointed this will not by any means represent any real marginalisation of Lami and Chalabi and the hardliner approach they personify, even if the two may possibly fade more into the background in the future. Rather, the latest developments suggest this is simply a cosmetic act aimed at making the committee look more in conformity with the legal framework adopted in January 2008. There is no suggestion that a new board will revisit the 511 existing cases of exclusion (but no one should be surprised if a new board will find grounds for adding some more cases in the last minute).

However much the Iraqi government tries to fix the facade, nothing can change the fact that the whole de-Baathification process is fundamentally flawed from the legal point of view. When pressed, Iraqi politicians tend to defend themselves with reference to “constitutional” procedure. Dusturi, dusturi, dusturi… It is a nauseating chorus. Most of the time this expression simply means “I know I am right but I am unable to provide a coherent argument in support of my position”. It is a sad fact that a large number of Iraqi deputies haven’t got the faintest idea about the contents of the constitution to which they so solemnly refer; those who do know tend to forget the parts of it they don’t like (just to take the most notorious example: the Kurdish zest for article 140 and their indefatigable attempts at pretending article 142 does not exist). And when it comes to de-Baathification, the list of constitutional and legal breaches is indeed long, starting with small but significant breaches of the accountability and justice law (such as reducing the appeals period from thirty to three days and apparently also ruling against Baathists that were only at the firqa level of membership), via dubious attempts to generalise from the individual level to the level of political entities with reference to article 7 of the constitution, to a questionable attempt by the board to use that same constitutional article to act in a more general anti-Baathism watchdog role (even though the accountability and justice law from 2008 specifically sought to limit its prerogatives to a set of highly specific de-Baathification measures). Unsurprisingly, this kind of legal chaos has fostered an atmosphere of vigilantism at all levels: In the capital, Daawa politicians have abruptly invented new procedures for repentance that supposedly may reinstate excluded candidates; in Najaf and Diwaniyya Sadrists and Daawa leaders have declared that “Baathists” must “give up their arms” or even remove themselves from these areas within a specified time period! Interestingly, however, in an apparent admission of the legal vacuum, Ali al-Dabbagh has today asked parliament to create new legislation that would outlaw glorification of the Baath party.

Before leaving, Biden gave Maliki the extra bonus of a promise to appeal the Blackwater case. This will enable him to look “national” (unsurprisingly, most Iraqis tend to agree that Blackwater is just as scandalous as Abu Ghrayb), while conveniently deflecting attention from the deeper systemic problems of the so-called “State of Law” that he is running.