What We Owe Iraq: War and the Ethics of Nation Building

JOANNE MYERS: Good afternoon. I'm Joanne Myers, Director of Merrill House Programs.

In recent days much of the debate about the war in Iraq has focused on how soon the United States can disengage and bring our troops home. Although this issue may be the one that captures the headlines, perhaps something should be said about the ethical responsibility the United States has to the Iraqi people in helping them to build their country, since we were responsible for toppling its government.

To balance this discussion we have asked Noah Feldman, author of the timely and provocative book What We Owe Iraq, War and the Ethics of Nation Building to address these issues this afternoon. He will discuss the ethical challenges to nation building and the responsibilities of the nation builder.

In the spring of 2003, when the Bush Administration was seeking a constitutional expert who was fluent in Arabic and would be able to travel to Iraq and help the Iraqi people write a new constitution, they found the perfect candidate in one Noah Feldman. Not only is our speaker a highly respected constitutional scholar but he is also fluent in Arabic, Hebrew, and French. In addition, he holds a doctorate in Islamic studies from Oxford University, where he was a Rhodes Scholar.

In What We Owe Iraq Professor Feldman argues that intervening in another country and rebuilding its institutions after tyrannical rule amounts to a moral promise, and unless we are asked to leave we must resist the temptation of a military pullout before a legitimately elected government can maintain order and govern effectively; it is then, and only then, that we can sanction bringing our troops home.

Professor Feldman gained his legal expertise during his clerkships at the U.S. Court of Appeals, at the D.C. Circuit, and as clerk to Associate Justice David Souter of the U.S. Supreme Court. In addition, he litigated on behalf of Al Gore in the Florida ballot fiasco of the 2000 election. What We Owe Iraq is not his first publication. He is also author of After Jihad: America and the Struggle for Islamic Democracy, in which he explored the prospects for democracy in the Islamic world. Currently our guest is Assistant Professor of Law at NYU Law School, whose faculty he joined in the fall of 2001. He is also an Adjunct Fellow at the New American Foundation, where he continues to focus his research on law and religion.

Please join me in giving a very warm welcome to our guest this afternoon, Noah Feldman. Thank you for joining us.

NOAH FELDMAN: Thank you very much, and thank you so much for having me.

I should begin by saying that French could not have been more useless in Iraq. There was a particularly bad moment at Ambassador Bremer's first press conference with the Iraqi press corps, at which he, after having left the podium, responding to a shouted-out question from the Agence France Press reporter, turned around and went back to the podium, and then answered the question in really absolutely letter-perfect, fluent French.

I looked at a close friend a mine, also a guy who is trained in Arabic, who was sitting next to me, and I said, "It's really a shame that we're not in Morocco or Algeria. Then maybe this would be a useful skill."

That captures something of the inapposite nature of the preparation of the United States government as a general whole for the project of nation building in Iraq. I mean it in purely a symbolic way. The lack of Arabic speakers was not in and of itself the true harm. The true harm was a complete—and I really mean complete—unwillingness to engage with projected realities on the ground.

The reason for that I want to suggest to you was not just blind wishful thinking, though wishful thinking played some role in it. The reason had to do with a specific ideology that has floated like an omnipresence over the entirety of the process that we've gone through in Iraq, and which continues to float there, and which I want to use as an introductory point for discussing with you the broader problem of ethics and nation building in the Iraqi context.

That ideology is the ideology of democracy. Now, it's not a new thing for a country to believe that other countries should govern themselves the way it does. Monarchies exported monarchies. There is wonderful scholarly work on how the British in India sought out the feudal common law system that they were sure must exist under the structure of Indian life. There's nothing particularly new about this. But there is something distinctive about exporting democracy today. There is one practical thing and there is one theoretical thing.

The practical thing is that increasingly around the world when you go to export democracy the people who live in the country to which democracy is meant to be exported themselves expect democracy to be coming to them. In other words, it's not a new phenomenon that's being introduced. Indeed, it's not conceptualized as a Western phenomenon.

Ayatollah Ali Sistani, the senior-most Shi'ite cleric in Iraq, who's a household name now, though I would venture to bet that no one here had heard of him before we went into Iraq—and I can be certain that no one senior in the Administration had heard of him—has made his reputation domestically in Iraq not just by his being a relatively moral man, which he clearly is, but because he presses the point of democracy for the Iraqis. He doesn't see this as an American principle. Far from it. In fact, in a fatwah that he issued on the topic in the summer of 2003 he said very expressly that as a matter of Islamic law democracy was binding as a practice and that, therefore, no one who was not an Iraqi could write the constitution of Iraq. So first is this practical observation, that today when one goes to export democracy, those who live in the country expect democracy.

The second is a more subtle point, and it has to do with what happens when a government wishes to export democracy. Democracy has within it the appealing—and I think correct—idea that people ought to decide how to govern themselves. You can't advocate democracy without believing in self-determination in some way or another.

Now, given that that was the case, everything that we the United States were going to do in Iraq, everything that a transitional unelected government was going to do in Iraq, up to the point when there was an elected Iraqi government, was going to be seen as illegitimate. And I don't just mean that it was going to be seen as illegitimate by Iraqis or by Europeans or by people in Greenwich Village, where I teach. I mean that it was going to be seen as illegitimate by the very people who were advocating it, by the very people who were accomplishing it, because if you're devoted to the idea that the only legitimate form of government is democratic self-government, then anything you do leading to that is in some way illegitimate and is legitimated only by the fact that it's meant to lead to self-government.

Now, I don't mean to use either of these observations to reject the principle of democracy. I want to use them as a framework for asking some questions about how we ought to have gone about the process in which we're engaged and what we ought to do going forward.

The first point I want to introduce is that nation building which is aimed at producing democracy is ethically sustainable, is ethically permissible, only because we believe, assuming we do believe, that (a) it can be accomplished and (b) that ordinary Iraqis would themselves want to be governed democratically.

Now, I believe both of those things to be true. I do believe that it was initially possible to think that we could have accomplished some form of basic democratic self-government in Iraq. I'm very far from sure now that we will accomplish that. I do, however, believe that it was plausible to think that it could be accomplished.

In retrospect, it's very hard to see how we could accomplish it with the number of troops that we sent, and this was hardly a unique view. This was a view relatively broadly shared. Certainly General Shinseki spoke of several hundred thousand troops; I think this was not a secret. But I do believe it was accomplishable.

And furthermore, I also believe that ordinary Iraqis would like to have some form of self-government along roughly democratic lines. Now, I don't think that's true of all Iraqis. It's certainly true of Kurds, who would like self-government in an independent Kurdistan, but nonetheless they would like democratic self-government. It's true of the overwhelming majority of Iraqi Shia, whose response to Sistani's proclamation of the necessity of democracy was to lionize him, well above and beyond what he would ordinarily be treated as just as a religious figure.

It's more complicated to say this of Sunni Arabs in Iraq, who might want democracy if they thought that they had a chance of continuing to dominate the society which they're used to dominating, but who recognize that as a minority in that society they are not going to be able to dominate in the same way. Their insurgency, I think, needs to be seen both as a holdover of ideological anti-Americanism and of Iraqi pride, and also as a rational attempt to convince the United States to leave, so that they could have a reasonable chance of reasserting their dominance over the society. Needless to say, that dominance will not take place through democratic means.

So we are left with a very complex situation in which probably roughly 80 percent of the population of Iraq, give or take, would like to see democratic self-government but a substantial and growing percentage of the people, namely a minority within the country, are very skeptical about that idea.

Now, this poses a hard problem because that 20 percent did essentially—I'm oversimplifying—but they did essentially dominate the society before we went there, and it does not follow from the fact that they dominated it before that we ought to have let them continue to do so. Nor does it follow from the fact that they are resisting that this is some sort of a legitimate national self-determination movement; I don't think that follows at all. But it has enormous practical implications for the question of how we might think about shaping a successful Iraqi democracy in the future.

You could frame the question this way: how does one develop democratic institutions if there's a substantial minority in the country that for reasons of its own strongly rejects the possibility of democracy? I will come back to that in a moment. But I want to move on to make a second ethical point, which I hope is of some significance. When you are running the affairs of someone else's country—and make no mistake, during the year of occupation that is expressly what the United States was doing in Iraq, and in the subsequent eight or nine months that is what we have been doing de facto to a very great extent—there must be certain basic ethical norms that rest upon the occupants or the occupier. International law jargon calls them the "occupant," but I prefer to go by "occupier." It's a little bit easier.

Now, international law does not say that when one country occupies another it may do whatever it wishes. In fact, it says rather specifically that there are a limited number of things that it must do, foremost among which is "the preservation of public life and order." That's the key expression that comes out of the Hague Regulation, and it's still good international law, though interestingly we in the United States have been in the process for the last year of fundamentally changing the international law of occupation just by acting differently, according to our own interpretation. I'll come to that in a moment.

So this obligation to preserve public life and order captures, first, one central point, which is that the occupier had the obligation to establish that people are safe and secure. I want to emphasize that that's not just a commonsensical thing that an occupier ought to do. It is that obviously, but it is also, independently of the fact that it's practically in the interest of the occupier, an international law obligation. It's also a basic ethical obligation, because if people have not asked you to knock down their government, no matter how bad and genocidal the government they had was—and their government was bad and genocidal—most people would still prefer it to out-and-out anarchy. That is to a very great extent in some parts of the country what we have delivered them.

I want to emphasize that our failure to deliver basic security is not just the original sin of this occupation in practical terms. It's also the original sin of this occupation in theoretical terms and in ethical terms. It's something that we owe the Iraqis first and foremost. Now, why is it so important that we deliver them basic security? The reason lies in the second part of this idea of public life and order. I mentioned the order part. Now I'm speaking of the public life.

Public life means in the modern context the restoration of independent institutions of government that are run by Iraqis. That's what we said we came to Iraq for. And we weren't lying. That is actually what we would like to accomplish in Iraq. But it cannot be done, independent institutions of government cannot be brought into existence, in the absence of basic security.

You see this on the news literally every day. You can't run for office if you cannot campaign and if you cannot go out in public, you can't campaign. You cannot organize party meetings if you can't hold a meeting of more than a handful of people in Iraq without becoming a target of attack. You can't run basic everyday institutions of government if you cannot assure basic security.

Again, my point here is not only that this has been practically disastrous for us; it's also that we ought to be doing what we say we are interested in doing, and what we indeed sincerely want to do, which is to facilitate Iraqi-run institutions. But in fact we cannot do that in large part because the security situation has gotten to be as bad as it is today.

This goes to the elections in a very direct and immediate way. Since those are very much on everybody's minds now, I will speak about them. But before I do, just one quick thought on how we actually administered during the year of occupation and how that differed from the traditional international law regime.

Classically, this injunction to preserve public life and order was understood to limit what the occupying government could do by way of changing the laws and by way of changing the governing institutions of the state. Essentially, under international law as traditionally interpreted, the occupier was supposed to leave those institutions be, and perhaps modify them only insofar as it was necessary to conform with basic standards of international human rights. So if the local laws say you can torture people, if you're the occupier you can't torture them under those laws. That's not a refuge that's available to the occupier. But other than that, the laws are meant to be left basically untouched, or that is what it was traditionally interpreted to mean.

That is not how the Coalition Provisional Authority, for which I worked, operated in Iraq. We systematically enacted a series of close to a hundred different pieces of legislation, ranging from issues like the bankruptcy code to a more prominent example of the creation of the Iraqi Special Tribunal to try Saddam Hussein and other senior members of the Baath Party. The position of the U.S. government was and is that these laws were permissible under international law because they were necessary to accomplish public life and order, and that they would remain on the books until such time as a legitimate Iraqi government wished to change them.

Now, at present that hasn't happened because the current transitional Iraqi government does not have a legislative branch. Very few people have taken note of this fact. Even though the Transitional Administrative Law, known as the TAL, which was the document that I put most of my energy into for the better part of a year, provides for a legislative branch, as actually implemented, the transitional government does not have a legislative branch today. That makes it hard for them to change the laws. And that was not an accident of ultimate design.

The reason I mention this is it's a good parenthetical, but it's to simply point out that one of the things that's distinctive about international actors making changes to international law is that you can just do it. The United States has simply declared that these changes in Iraqi law are legitimate pursuant to international law. There is no one in Iraq to tell us otherwise. Many of these laws are being ignored on the ground anyway, so there's an entire question of how important any of this is. But look, I'm a lawyer by training and a law professor, and I thought I'd at least share with you that one important legal tidbit.

Basically the international law of occupation is in the process of transformation, and the standard treatises and books on the subject are, I think it is fair to say, obsolete as of now with respect to these questions. Now let me turn to the elections in the time I have remaining. Now, if you're engaged in nation building, there's a danger that elections may look like the great enchilada, the thing that is just out there waiting for it. It's calling to you. It's the siren song of the nation builder: "elections, elections."

And even though there have been experiences in places like the former Yugoslavia, where early elections have seemed problematic in various ways, notwithstanding the observed experience that early elections are sometimes disadvantageous, for the reason that I began with—namely, the idea that everything leading up to an elected government is in some way illegitimate—elections are still out there as this tremendously attractive goal. They hold out the promise, not only to us but to the Iraqis as well, of giving the Iraqis a voice so that the government will no longer be a government that we've imposed but one that they have chosen. That's a very appealing picture, but it entirely misses both the practical usefulness of elections and also the fact that elections that fail can present as a serious problem.

The purpose of elections in the early stages of nation building is to identify the players who will get to sit at the table to negotiate the future of the country. This is far more important than day-to-day governance, which in the early nation-building stage has to remain basically in the hands of the occupier, and will remain in our hands to some significant degree even after these elections. What the elections are meant to do is to say, "Now we'll know who are the right people to sit at the bargaining table and we'll have a rough sense—or we ought to at least have a rough sense—of how they stand in relation to their constituencies."

Now, notice that in the bargaining for the Transitional Administrative Law we—the United States and the United Nations—chose the players. They weren't elected. Now, we tried to make them roughly demographically representative, but in the end we were choosing people who were prepared to work with us. One consequence of this is that ex-Baathist Sunnis were not prepared to work with us. They became an unrepresented entity in the negotiations. This is part, though by no means the whole story, of why the insurgency has grown since then.

Elections were meant to remedy that. Elections were meant to provide an opportunity for some Sunni leadership to step to the table and say, "We speak for the Sunni Arab community." They were also meant for the different Shia groups who claim to represent voters to be able to put their cash on the barrel head and say, "Okay, look, we've got the votes."

The Kurds no one's very worried about. Everyone roughly understands that the two major Kurdish parties do in fact represent most, but not all, Kurds. Their interests aren't identical to that of the public. Elites never have the exact same interest as the public. In this case the senior Kurdish leadership wants to work with us, and ordinary Kurds, as I mentioned earlier, want independence. But they are at least in a basic way in accordance. There aren't going to be any big surprises from the Kurdish side after the elections. Their negotiating position afterwards will look a lot like their negotiating position before.

But now we run into the tremendous danger posed by any elections, and these in particular: What if the elections don't generate a representative group of elites to do the negotiating over the future of the country? What if they do not generate a constitutional deal that can stick?

For purposes of comparison, just think about our own Constitutional Convention. The elites at our Constitutional Convention were basically northerners and southerners who had in fact been chosen or designated by their state legislatures. When they showed up, their job was only one: it was to cut a deal that would hold the country together. They did cut that deal. In cutting that deal the north was more than prepared to compromise on slavery, and they did compromise on slavery, and that was necessary to cut this deal. It was an absolute necessity. It wasn't particularly morally attractive; in fact, it was probably morally repulsive and the northerners knew it. But there was no other choice as far as they were concerned. It was this or no country; and they got a good eighty years out of it before the Civil War ripped the country apart again. So in constitutional terms, eighty years is a pretty good accomplishment, again leaving aside the serious question of the moral cost.

But the point is that these were elite who could deliver their states. They then dutifully went back to their states and went to the state ratifying conventions, argued to their constituencies for this document that they had produced, and eventually they achieved ratification. Again, I'm super-oversimplifying. But what if they had just been random people who showed up in Philadelphia, without any real clout for their constituencies? Well, they wouldn't have had much chance of selling the constitutional documents to their constituencies afterwards.

If Sunnis are not elected in this election—and it looks almost certain that that is what will happen because of a combination of boycotting and lack of security in Sunni-dominated areas—then the Kurds and the Shia will gladly negotiate a constitutional solution. I mean they'll be the only game in town. They'll say, "Oh well, we'll make some guarantees for the Sunni," and it will be in fact in their interest to reach out to Sunnis as best as they can. But they will be tempted, human beings as they are, to cut a deal that's in their own interests.

By the way, the numbers that they turn out after this election could well be bizarrely distorted. One effect of single-district proportional representation is that the seats in the legislature are determined exclusively by who shows up to vote, as you all know. What you may see, for example, is with the Kurds putting almost 100 percent of their people at the polls, let's say for the sake of argument that, because of scattered violence, the Shia manage only 60 percent turnout. Then you're going to see a number that comes out of this that's grossly over-represented in the direction of the Kurds. The Kurds will then take advantage of that to try to negotiate a stronger constitutional position for a quasi-independent, autonomous Kurdistan, and there will be not much that anyone can do about it.

The point is, though, that this deal will not include Sunnis and it will not represent any actual reality on the ground—that's the problem—and a negotiation that doesn't correspond to actual power is a wasted negotiation. Sometimes it's worse, because it may send a message to Sunni Arabs that they are excluded. Now, our ethical obligation in this context is clearly to provide the basic security necessary for Iraqis to negotiate their way to a basic solution to their future governance. I said that in the book, because it's obvious, to me at least, that that's what our ethical obligation is here. It also exactly corresponds to our practical goals. But it's running into a serious problem, which is that those who show up to negotiate this constitution may themselves not be the right set of people. They may be only a subset of the total number of people needed to negotiate the final constitutional outcome.

So what can be done about that, by the United States or by anybody else? Well, one thing that the United States can do and that the international community can do is to say as forcefully as possible to the newly elected Iraqi government, which, by the way, will be a Shia Islamist government, "Look, it's not enough for you just to defeat the Sunni militarily; in fact, you probably can't defeat the Sunni militarily without us. But that's not enough. You need to extend the arm of peace to the Sunni community and offer them guarantees that if they come into the constitutional process they are not going to get the short end of the stick. That means offering minority over-representation, in something like an upper house of legislature, or like a constitutional court, for example,or in some other contexts which will help make Sunnis believe that they have a better and stronger chance of not becoming a disenfranchised minority."

They know all about disenfranchised minorities because that's what they used to do to the Kurds and that's what they did to the Shia, not that the Shia were a minority. So they need to be assured that this can't happen. That will not be an easy thing to do, either for us or for the Shia.

For one thing, ordinary Sunnis aren't going to believe it. For another, it is very hard to convince Shia and Kurds that they have something to gain by offering this option to the Iraqis. Many Shia and Kurds in government have been saying privately things like—and I'm quoting somebody anonymously—"We must make the Sunnis feel the pain. There is no other way to defeat the insurgency than by increased violence."

To which my reaction is: Look, a firm hand is necessary, you can't be seen to be capitulating. But by the same token, if you do not offer a political option, the Sunni insurgency, which is at present I suggested earlier still in large part a rational insurgency, will be transformed, Palestine-style, from an insurgency dominated by a group of people who in principle might come to the table, to an insurgency dominated by international-flavor jihadists. They don't have to be international themselves; they could be Iraqis who believe that violence is an end in itself and who think that the goal here is just to blow everybody up. And there are people like that in Iraq, and increasingly some of them are Iraqis. Although those numbers have stayed somewhat low, those can rise.

Now, in that environment there is no way out for Iraq other than protracted civil war. We're not there yet. The danger is that elections will push us further in that direction. The only hope for the next period is to do a combination of two things, and I'll close on this.

One is to continue to fight the insurgency so as to attempt—and it's not an easy attempt, it's not going well, and it's not going to go well, but we need to at least attempt it—to produce basic security on the ground.

The second is to put a lot of pressure on our unchosen allies, the new Shia Islamist government, which will neither look like nor be a U.S. puppet. If it's anybody's puppet, it would be Iran's. It won't in fact be Iran's puppet. They will not be anybody's puppet. Tell this Shia government that it must, if it wants to have any hope of success in the long run as a government, cut a deal with the Sunni Arabs.

Now, I suspect they will be to some degree open to this, but it will be very hard to convince them to make concessions at the constitutional level in order to bring the Sunnis on board. This is not going to be an easy task. I and a lot of other people are going to take it on, and we'll see how it goes. I'm not terribly optimistic about the outcome of it.

But if it doesn't happen, then we're signed up for a significant and protracted civil war, and that civil war will mean that we will be in a tremendously awkward position. If the Shia government were to tell us to leave, then as an ethical matter we would probably have to go. If an elected government says leave, then we ought to leave.

I think many people in the Defense Department right now think that's our exit strategy; no kidding: Make the Shia Islamist government so mad at us that they tell us "go." Then say, "Well, democracy is democracy."

Now I'm returning to the ideological position with which I began: "democracy is democracy. They have said we should leave. We should leave. Who are we? We're not imperialists, we're not here to dominate. 'Bye."

Now, that is a cynical model, but it is not that far from at least one position that is being advocated within the government, and increasingly being advocated publicly by people responsible and less so. Some scenario like that could actually happen. But for the moment the Shia Islamist government is not going to tell us to leave because, although they don't much like us, they are also not dumb, and they know that without us right now they don't have the capacity to govern the country.

So we're probably going to see something else I talked about in the book: a detailed back-and-forth negotiation in the next months between the Shia government and the U.S. military on the ground over just how much we're prepared to do in terms of breaking heads, over just how much they are prepared for us to do.

Don't assume that they'll want us to be softer than we've been. Indeed, it's very possible that when it comes to engagement with Sunnis they would like us to be harsher than we've been. "Next time you go to Fallujah," they will tell you privately, "you don't first warn everybody to leave the town. That would send a message."

Now, look, these things may not happen, I think we can preclude some of them from happening, but these are realities against us in the future.

Let me close with the following ethical thought, which I hope is still an ethical thought. You can't run your foreign policy without self-interest. You've got to have self-interest. The United States is not going to behave in a way that its public perceives as against its basic self-interest. But in a democracy it's possible sometimes to convince the public that its self-interest includes not only the very short term but also the longer-term question of whether as international actors we can look ourselves in the face, whether we are the kind of people as a nation who think it's okay to knock down a country, let it go to hell in a handbasket, and then say, "Sorry, our mistake, gotta run."

I think that to an amazing degree in the last election we saw that a significant portion of the American population was prepared to do some sticking out. Now, maybe some of those people falsely believed all was well, but that's not what most of the polls seemed to suggest.

Now, I'm not a professional poll reader; for that you need an advanced degree in divination and prophecy, and I have neither. But I do think that we are at a moment when Americans do understand, perhaps to a greater degree than in our past, that a sophisticated foreign policy is also one that enables you to look yourself in the eye. We shouldn't squander that. We should remember as we go forward that we need to continue saying publicly that there is not only a self-interested duty for the United States in not letting Iraq collapse into civil war but also an ethical responsibility on our part to help Iraqis, at least so they don't end up worse off than they would have been if we had never come. I think that's a message that is useful and valuable. And, as someone whose name is known to all of you knows, it has the added benefit of being true.

Thank you very much.

QUESTION: Let me just say at the start that I think I deeply agree with your analysis of the current situation and your prescriptions for the future. I don't have a problem with that at all. I look forward very much to reaching your book, and I applaud the work you have done.

I want to ask a question, though. I want to take you back a bit to the period immediately before the war, where you made I thought the rather sweeping generalization that no one in the Administration did any planning for the postwar world in Iraq. I don't think that's fair. I think there were people. I'm prepared to concede that the people who did the work were not the people who were making the policy calls, but let me tell you as a part of the coalition that both the British and the Australians were talking vigorously to people in Washington about what needed to be done after the war was won. Now, as I say, that's a matter of historical record, and that work largely went unused and was wasted.

The question I want to ask you about that, though, is whether there isn't something about the way in which the United States goes about these ventures which betrays a—I don't know whether it's an innocence or a naivete or a reluctance—to come to terms with what are essentially issues of imperialism. In that context, let me sharpen the question a bit more and say: what do you think of the proposition that two very bad decisions were de-Baathification and the destruction of the Iraqi army? Were these decisions taken for the wrong reasons?

And my last question, I promise: if those decisions hadn't been taken, would life have been now much easier in dealing with the actors and forcing the actors somehow to come to the sort of accommodations that you I think so correctly suggest need to be made? Thank you.

NOAH FELDMAN: If I may, let me just divide my answer into three parts, which I think correspond roughly to the three parts of your question: first, on the Future of Iraq Project and the planning that did occur, and especially the planning that occurred between coalition partners; second, the question of imperialism and naivet?, if I could style it that way; and third, the question of specific policies like de-Baathification and the destruction of the army in connection with the idea of imperialism.

With respect to the planning, I was struck again and again in Iraq that the Australian and the British personnel who were on the ground—they were thin on the ground, but they were on the ground in the coalition—were people who often, at a minimum, had extensive experience elsewhere in similar situations. At a maximum, they were also Iraq experts, people who actually had worked only on Iraq. Those folks had been in conversation with the State Department. It's just that the State Department of the United States was irrelevant to what happened in postwar Iraq.

That's our mistake, a U.S. mistake, not certainly a mistake from the partners, except to the extent that perhaps the partners might have been more sophisticated in their guess as to what was happening in the U.S. government. But that may have been irrelevant. They may have known perfectly well that they couldn't talk or would have been unable to talk to DoD [Department of Defense] in some significant way.

So, for example, someone whom I worked with in Iraq, the Australian Colonel Mike Kelley, had extensive experience in the constitutional process in East Timor. He was saying, certainly in early May of 2003, that the thought that there could be a drafting of a constitution without a national referendum first was preposterous, it was just never going to fly, and the locals would never stand for it. The Americans basically said, "Well, that may be, but, you know, it's a little too much democracy a little too fast from our perspective." And of course he was entirely right.

The Future of Iraq Project, though, did suffer from one serious problem, which is that much of it—not all of it, but much of it, especially that connected to the constitutional process, which is the part that I studied most closely—was full of aspirations and less full of realistic predictions. This goes to the naivet? question, which I'll come to in a moment.

I mean that it was rather like a business plan that said: "Number 1, grow." Well, yes, but that's not the hard work of getting there. The document on the constitution, which is a 150-page, beautifully written document, is all about creating an ideal society. It's literally a Utopian model of what a good government would look like. It would be a wonderful government, but it literally bore no relation to any actual power relations on the ground in Iraq. This was not true of the whole Future of Iraq Project. I'm speaking only about that which I know best.

On the question of naivet? about imperialism, I couldn't agree with you more, and I talk about this at some length in the book. Key to this was that the idea that we were bringing democracy meant that we were not being imperialists, and that therefore we should not act like imperialists.

So the first decision there was simply not to have anyone in charge of governance. I mean everyone remember Jay Garner? Remember him? Remember what his title was? He was head of the Office of Reconstruction and Humanitarian Assistance. The word "governance" appears nowhere there. There's "reconstruction"—that's buildings and grounds—and there's "humanitarian assistance"—that was getting the crops in and making sure nobody got diphtheria—both of which Jay Garner did excellently.

On April 28, 2003—this was before Bermer had come out; I was there and I mention this incident in the book—Garner got up in front of a roomful of Iraqis and he said to them, "I'm just in charge of reconstruction." I won't even try to imitate his "just folks" accent. "You all are in charge of your own government."

There was this gasp of 300 Iraqi political elites. "What does that mean, 'You're in charge of your own government?'" That was a product of this democratic naivet? that said: "An imperialist shows up and imposes a government; we're not going to impose Chalabi" ? although there were voices in the Administration saying "do so" ? "that would be undemocratic. We're just going to let them run their own government."

"Well, sir, there is no government."

"Well, I guess we have a problem. Send Feldman and a few other people who will write desperate notes back to Washington saying, 'This is Baghdad and we have a problem. There's nobody in charge of the country. I'm not sure how this missed, but somehow nobody's in charge.'"

So this naivete was a naivete specifically associated with the well-intentioned goal of democratization, and it did lead, to give you two specific examples, both to de-Baathification and to the destruction of the army. The problem with the army was that the history of Iraq was that you set up a reasonably decent government and the army will knock it down.

So we figured, "Aha! Knock out the army and that will avoid the problem of the army destroying the democracy." Well, the army could well have destroyed the democracy, but so what? First you had to establish order. Again, the naivete of democracy.

And the same is true of de-Baathification. The Baath Party was actually very terrible in many, many ways. It did in some ways have more than superficial resemblances to the Nazi Party, certainly to the old Communist Party. But de-Baathification should have happened only at the most symbolic levels at the top. Now, to some extent that's actually what happened, although the story is more complicated. But by signaling that we were going to do more we scared a lot of Sunnis, which was also bad.

Quite apart from the question of whether the United States should ever engage in anything like this again—I think we're not going to in my lifetime, but that may be wrong too; in any case, yes, I'm brushing up on my Persian day by day—if I have one "sadder and wiser man" lesson that I've learned from this whole process, the key point really is that this naivet? led us, out of an excess of desire not to impose our will, to entirely mistake what the Iraqis wanted.

The Iraqis actually wanted someone to be in charge. They didn't care if that someone was autocratic for the short term. As long as that autocrat didn't go around murdering people the way Saddam had done, there would have been a willingness on Iraqis' part, I think, to sustain an idea of strong government, as long as it would have been able to deliver basic services and deliver basic security. I don't mean for a lengthy period of time, but for some short and identifiable period of time, a couple of years let's say.It couldn't have done that without the Iraqi army.

That's what we should have done. It could have been an army officer or a civilian, it wouldn't have mattered, but that person in charge would have had to have authority over both civilian and military forces within Iraq. So the naivete was in the end I think the beginning of the problem here. It's more than naivete, although that is part of it. It's an aspiration to democracy. And yes it has a component of hubris as well, but it wasn't the sort of hubris that said "we can make this happen"; it was sort of hubris that said "the world is good guys and bad guys; take away the bad guys and the good guys will do well."

This was the lesson that they learned from Eastern Europe, the transformations of Eastern Europe, which were the dominant models in the minds of everybody in the Administration in the run-up to the war, so much so—just a last anecdote on this point—that at this April 28th meeting that I'm describing to you that happened in Baghdad of 300-and-some Iraqi notables, there were also thirty-five very unhappy and confused Central and Eastern European diplomats who showed up, flown in (I flew with them) from Washington by the U.S. government, the thought being that they would have something to add.

And they did, it turned out. The Polish Ambassador to Iraq was the only guy who knew the directions from the airport to the Republican Palace. That was literally the case. I sat in this meeting next to a wonderful man, a Latvian politician, who looked right at me and said, "I remember exactly what this was like. The day the regime collapsed we didn't have a clue what to do." (I'm putting it more politely than he put it.) "This is just like that." So that was the expectation.

QUESTION: I just want to press you about something you just said, which is that you think that had we played our cards right, the Iraqis would have been willing to wait two or three or some number of years, so long as it was a finite period of time, before real transfer of sovereignty, that is that it could have been something more like East Timor or more like any number of situations one can think of. I just want you to expand a little bit on that because I'm surprised to hear it; I tend to assume that the Iraqis had a much more kind of feverish nationalistic wish to take over their own destiny than the Timorese or than the other folks one thinks of as being in that situation.

NOAH FELDMAN: I have to tell you honestly I saw none of that in the first two of three months after the fall of Saddam. During that, in retrospect blessed, time I was out of the Green Zone every single day. I could never do any of this now. I mean I went everywhere and talked to everybody who would talk to me, from ordinary people on the street to government or would-be government officials or ex-government officials.

In fact, there was a profound trauma. The country was as traumatized as a country can be by some combination of Saddam and our bombing, which was really the most awe-inspiring sight that anyone had ever seen in terms of its precision and effect. It's also one of the reasons that the insurgency didn't start up right away. The insurgents were still feeling us out. At the beginning, it looked as though we were more or less invincible. I think that was their imagined state, and they didn't want to start a serious insurgency as a result of that. It took time. This is why it has built up gradually and continued to rise.

Now, I think that Iraqis would have had to have a specific timetable laid out for them. I certainly think there would have had to have been Iraqis brought into the government process. But technocratic ministers—namely, the previous ministers who had been there, with the exception of the true Baathist thugs—could have done I think a reasonably good job of this.

Now, this is premised upon there not having been looting. The looting sent a message to Iraqis. Not only did it destroy the entire infrastructure of the country—for example, when I got to the Ministry of Justice there literally was no Ministry of Justice, just a burned-out building, a thousand broken windows, a thousand burned desks, nothing left, and this was true of every ministry—but the message of this looting was also that no one was in charge, that a period of anarchy was coming.

I think in the absence of that, ordinary life would have gone on much as it had done before and the constant message could have been: "It's just around the corner. We've met this target and then we're going to do this." We could have had local elections first. We could have worked our way up. I really think that that was a viable strategy. I think, however, that the minute the looting happened, that probably already was ceasing to be a viable strategy.

QUESTIONER: We could have prevented the looting as well.

NOAH FELDMAN: We could have certainly prevented the looting, depending on the way we had fought the war. Here, to me, is the tremendous drama of Woodward's book about the run-up to the war [Bush at War]. You know you're going to war, so that's not what provides the drama of the book. The drama is that on page one the war plan is the old first Gulf War war plan, with over 600,000 troops, and on the last page they've got a war plan that says this can be done with only 60,000 troops. And of course in the next chapter that Michael Gordon is writing right now, you'll see Baghdad fall with fewer than 10,000 U.S. troops anywhere near Baghdad. So if you fight the war that way, you just literally don't have enough people to come in.

This is because Rumsfeld was right. He was absolutely 100 percent right and the military was 100 percent wrong, that you couldn't win this war with a small number of troops. You could. You just couldn't do anything afterwards without a substantial number of troops.

That is a truth that is well laid out by Machiavelli in the Discourses in his chapter on air war, where he says that there's this new thing, it's called artillery, it works really well, everyone says it's going to transform war. And it is, except it's not going to transform occupations, because you need as many people to occupy now as you needed before. Machiavelli was a genius, you know.

QUESTION:I want to take you to a statement I think you made, and that was your thought that we'll probably have a Shia Muslim society running the place. I'm interested in the cast of characters within the Shia. You've got Ahmad Chalabi, Moqtada al Sadr, and Sistani, and Iranians. Assuming that will happen—and I don't doubt what you say—how does that play out, because within that community there have to be divisions, and how do you see that resolved? And also by the way, what will be their role vis-?-vis Sunni like Iyad Allawi, who is a Sunni, and then with the Kurds?

NOAH FELDMAN: Well, far and away the dominant person, the person who should have been the dominant political figure, in Iraq now was Ayatollah Mohammad Baqir al-Hakim, the brother of Abdel-Aziz Baqir al-Hakim, who spent the last decade in Iran as head of the Supreme Council for Islamic Revolution in Iraq. He was, if you will, the Iranians' answer to Ahmad Chalabi. You know, he was as embedded in the politics of Iran as Ahmad Chalabi was embedded in the politics of the United States.

He was poised to become the major figure in the country, and then he was killed, he was assassinated in Najaf, right outside of the Shrine of Imam Ali, a wonderful spot. I was there just a couple of days before it happened buying little souvenirs, pictures of Mohammad Baqir al-Hakim as a matter of fact and Sistani right outside the mosque. He was killed.

As a result of that, the internal Shia politics changed. Three things really happened, maybe more. I'll list four things that happened.

One, his brother, Abdul-Aziz al-Hakim, who's now the number one name on the Shia United list, had to step into his brother's shoes. Abdul-Aziz is not a sophisticated cleric. He hasn't reached the level of Ayatollah. Ayatollah is a technical designation related to the amount of skill in classical Islamic sciences and law that you have. He's nowhere near there.

So in the relatively hierarchical structure of Shia religious governance, he is not as high. He therefore had to defer to Ayatollah Sistani, who otherwise would probably have maintained a very low profile politically in what was to follow. In fact, Sistani's career had been one of political quiescence. That's why he wasn't dead. If he had been a political activist, Saddam would have killed him long before. So he would probably have kept a lower profile, but he became more important than Abdul-Aziz, and Abdul-Aziz has had to defer to him. Abdul-Aziz is also not anything like as skilled a politician as his older brother was.

Second, Ibrahim al-Jaafari, who's a politician on the governing council, is the head of the Islamic Dawa party. His name is not widely known in the United States, but he has a reasonable chance of becoming the new Prime Minister in Iraq. If Abdul-Aziz doesn't want to serve himself—and that's very possible—Ibrahim al-Jaafari will be a natural choice. He wears a coat and tie rather than a turban, but he is a career Islamist. He has a beard, but again no turban. He is a plausible candidate for the next Prime Minister position. He emerged as a more significant figure than he would otherwise have been. At various junctures when opinion polls were done of who's a popular politician in Iraq, he generally scores near the top.

Next, Moqtada al-Sadr got into business. If Mohammad Baqir al-Hakim had lived, I don't think that Moqtada would have had a substantial job He had some popularity with the young, poor Shia by virtue partly of his father's name, partly by virtue of the fact that he's young himself and kind of radical. But I think that Mohammad Baqir al-Hakim would really have held him down to a significant degree. In his absence, though, Sistani found that he was the person who had to deal with Moqtada.

Now, this was tricky because—this is really inside politics, but you asked for it—Sistani was not experienced in shutting down people who claimed that, notwithstanding that they were not high up in the clerical hierarchy, they still should be given allegiance. In sociological terms, you would say that Moqtada stood for charismatic authority and Sistani stood for institutional authority. The struggle between them has been a tricky one, as Sistani tried to figure out the best tricks for keeping Moqtada down. He's kind of gotten the hang of it now. You have to use the United States to intimidate him and then you have to pay him off. Sistani has managed to do that relatively well. But Moqtada became a real player.

Now, in this election the United Iraqi Alliance list includes some people who are affiliated with Moqtada himself, but then Moqtada has also run on his own small list from Sadir City, just to hedge his bets against the various options.

In the long run, the various entities in the Shia community will not be able to hold together politically. They're not going to be a lasting political party. They have differing interests, they represent different towns, they also represent different social classes. There's a whole universe of politics there. Not all Shia are alike—big surprise—but in the election they will run as this Unified List, giving them enough power in the constitutional convention to dictate to a very great extent various results.

Now, the formal position of even the people who spent time in Iran is "we are Islamic democrats. We believe in democracy—this is not one man, one vote, one time—and we believe in Islam, we want a major role for Islam in politics and in governance, and that should coexist alongside democracy." They were willing to sign into the traditional administrative law a law that provided that no law should contradict Islam or the principles of democracy, which is an innovative formulation never before tried in any Arab constitutional document. I'm kind of proud of it. We'll see if it makes its way into the final constitution. It may not, but you've got to give it the old college try. So that's an overview on where things stand.

QUESTION: I'd like you to walk through a bit more whether our commitment to democracy is much more profound than our belief in weapons of mass destruction or the ties between Saddam Hussein and 9/11.

We talk about democracy. If we had wanted democracy in Iraq, immediately upon getting rid of Saddam Hussein we would have turned authority over to the United Nations and pushed for a Cambodia-style real electoral process and real participatory process of all factions. If the Khmer Rouge could be part of the process in Cambodia, then there is no reason why the people that we considered our enemies couldn't be part of the process in Iraq. So that's one thing.

The second thing is, who's actually able to run at this point? Is there really a test of democracy if the Baath Party is not able to organize itself and run candidates? Is it a test of democracy? I don't know what the level is now of former Baath association, and I'd be interested in that, as to what levels are precluded from being candidates.

And finally, you don't have an election unless you negotiate with the people that you're fighting with and convince them that an election is part of an alternative process for resolving power questions. I mean at this point there is objectively no solution to the power issues in Iraq when the people who are shooting against us are by our definition common criminals or terrorists or people who are inhumane and therefore no sensible person will talk with them, just as we treated the Vietnamese revolutionaries, and just as the British treated the IRA.

NOAH FELDMAN: With respect to your first question, I should say I'm not a neo-conservative by either upbringing or inclination. I ended up in this job just because, as was mentioned before, I just happen to have a very idiosyncratic skill set. It was early days, and Jay Garner was still in charge, and no one thought that this was a wholly politicized reconstruction process, at least at the time. But I'll report to you what I saw and what I heard both in the Pentagon before going out to Iraq and then on the ground.

What I heard is that the reason there wasn't going to be a UN turn-over was the sincere belief, supported by some evidence, that the United Nations would not do as good a job as the United States would in driving a process of democratization. Now, it's easy to laugh at that. It sounds crazy. But the argument was something like: How great is the United Nations' track record on this front?

PARTICIPANT: The United Nations also made it clear that it didn't want the job and couldn't do it.

NOAH FELDMAN: That's also true. That is a crucial point. But even had there been a willingness on the part of the United Nations to act, the true believers in the Administration—and they were the ones controlling the policy at that point—were having no part of it. Part of their world view is a dislike and a distrust of the United Nations. This is not news to anybody in the room.

So I believe that was derived from precisely the democratization rationale, which in my humble opinion is what drove the entire process from soup to nuts. I see the weapons of mass destruction as something ginned up essentially to satisfy other constituencies within the Administration. I see, frankly, 9/11 as something that facilitated a pre-existing desire to go into Iraq—again, not out of a desire to colonize Iraq and steal its oil, but out of a desire to change the regional balance of power by producing a functioning democracy, and the view that Iraq was the place to start in so doing for a complex set of reasons.

On the question of whether this is a real election if the Baath party can't run, two thoughts, each quick. One, it's not an obligation of liberal democracy to allow non-democrats to participate in the elections. That's certainly not how the Europeans see it. You know, the Nazi Party still can't run for office in Germany, and frankly that's probably a good thing. In my view, any party that says and means that it is in favor of democratic governance should be allowed to run, but that should be the cutoff point.

Now, if the Baath Party reconfigured itself into a single neo-Baath Party, as I suspect it will in the future, just as the former communist parties have done in some Eastern European and Central European countries, they should be able to run. That hasn't happened yet, although there are various attempts at reorganization. Senior Baath Party members can't run, but low-level Baath Party members can participate in these elections.

Would that our greatest fear now were what if the neo-Baathists win 20 percent! That would be great. I've got all these memos saying, "Here's what you should do if this situation arises." I have to admit, eighteen months ago it was hard for me to imagine that things could have gotten so bad that we would have approaching zero participation in the Sunni areas, but it has in fact happened that way.

So at this point I, and I suspect many in the Administration, would welcome the emergence of some neo-Baathist Party. The closest we've got is the Iraqi Islamic Party, which are basically the Muslim Brotherhood Party. That's the Sunni Islamists, the counterparts of the Shia Islamists. They are saying they're going to boycott, although their names are on the ballot. So when that's the best you've got going, you know you've got serious problems on your hands.

QUESTION: One thing that makes this unusual is that we're dealing with a multi-tribal, multi-national entity created by the Paris Peace Conference, as David Fromkin pointed out so eloquently. So basically this is more like trying to hold the Holy Roman Empire together, or Yugoslavia, than it is a real nation state in the normal sense. I know you must have thought a great deal about this and how to balance this off, because this isn't just amateur night; it's also a whole new thing we're trying to do here, and we may have to face it other places as well. India was a success at it, after a lot of blood and pain. Can you give us your thoughts on that?

NOAH FELDMAN: I do, in fact, write at some length in the book about what you might call the artificial state problem. One thing I begin by observing is that when you start looking closely at them, most states start to look artificial, including the much-vaunted nation states, which generally had to conquer successive groups of people. Then they managed to stamp out their languages, like Provencal, let's say, with a Crusade here, a Crusade there, and over the space of hundreds of years, it suddenly starts to look like a unified nation state. So Iraq is not unique in this respect, as you correctly point out.

The prospect of breaking the country into three bits, which was very much on people's minds some time ago and will reemerge into the public eye as the constitutional process begins, runs into two serious problems, one of oil and the other of blood, and they are interconnected.

The problem of oil is that a central Sunni statelet corresponding to the old Baghdad Belayat [phonetic] can't survive without a source of revenue in the form of oil, either from the Kirkuk oilfields to the north or from the oilfields in the south. Yet those are precisely the two things that a Kurdish region or a Shia region cannot do without. So apart from the possibility of partitioning these oilfields, a tricky business at best, you've got a serious problem on your hands. A central Baghdad region, Sunni-dominated region, as a state of its own with no oil is Gaza without the port. It's not a pretty thing to contemplate.

That leads to the question of how you break it up. This is the blood question. How do you break up a country like that without tremendous bloodshed? Here, with respect, I would say that India and Pakistan are Example A of what not to do. I mean the numbers of people who died in partition were mind-boggling, and partly that was population density, but something comparable could happen in Iraq because no one will give up without a fight because there's something to fight over, and that thing is the oil.

So there's actually no easy, viable way to break the country up, and there's certainly no way for anyone other than the United States to do it. If the United States were to do it, there is every reason to believe that what we would end up with would be something not altogether better than what we began with.

So there is an attempt now—an attempt only—to produce a federal solution to this problem, with Kurdistan having de facto autonomy, which they've already got and which they're going to keep; with their own military, which we've come up with the brilliant solution of calling the national guard. Every time you hear the Iraqi national guard units did something, that means Kurds did something. That's why the national guard does so well, because they're Kurds. They're good fighters, they're well trained, they're good light infantry. They're not heavily armed, but they manage to accomplish their missions, which is more than you can say for the rest of the military. So there is an attempt to give them that and then to see if the rest of the country can run as a more or less unified entity.

The last problem here is Baghdad. Perhaps 7 million people. That's fourteen times the size of Sarajevo. There are Kurds, there are significant numbers of Sunni, and there are Shia. The populations are embrocated. There's no way to walk away from a civil war in the rest of the country without tremendous bloodshed in Baghdad.

So the only way out is democracy. It's not that democracy is assured of success in Iraq, very far from it. Indeed, civil war looks increasingly likely with every passing day. It is true, however, that now that there is no more Iraqi army, now that there is no single entity in the country capable of dominating the state the way that the Sunni state apparatus under the Baath Party previously did, there is now no other way forward for the Iraqis than representative democracy. That's their only hope. That's the only solution that has even a chance of working.

Now, I find it sad and depressing to be in the position of having to say publicly not, "Well, let's go, democracy will be great for Iraqis," but "Things are going terribly, but if you don't try democracy I guarantee you much worse." That's not a position from which one would like to campaign for an idea, and I don't welcome having to do so. But it is also the only viable chance that Iraqis have.

At this point, The United States with its coalition partners—although to a lesser degree to the extent that they have not been able to increase their own military presence and that's not realistic for them any more than it is for us—are still the only entity who's got the capacity of doing this. So if there's one point that I would hope you would take away with you, it would be that it's not that I'm telling you that it's all going to work out. It may well not work out. It's just that we bear central responsibility for whether it works out or not. That's a point that I think we cannot say too many times and that we should not forget. Thank you so much for your attention.

JOANNE MYERS: Thank you for your excellent presentation.