For a few weeks in the spring of 2003, when the war in Iraq had ended and U.S. officials still stubbornly avoided the word "occupation," 33-year-old Noah Feldman explored Baghdad by taxi or drove himself around, stopping alone in cafés and restaurants to chat with locals. "It did not feel like a hostile environment," said the New York University law professor in a phone interview last week. "Baghdad didn't feel like it was substantially less safe than any other Arab capital." Feldman was in Iraq to advise Jay Garner, the retired three-star general and former military contractor whose luckless tenure as American proconsul left a stamp of incompetence on the U.S. occupation. Looters stripped Iraq's already threadbare infrastructure and emptied the national museum. Electricity and gasoline seemed to disappear, along with any sense of security. On the political front, Garner hardly fared better. A late-April conference designed to kick-start civic life—and perhaps early elections—made that idea look ridiculous.
"The conference was shockingly disorganized," said Feldman. "We got the most influential 300 people in Iraq together and told them we had no idea what their government was going to be. There was no clear agenda, or deliverable product."
"Freedom" had been the deliverable, and it became clear that the Pentagon planners never got much further than that. Garner was replaced by L. Paul Bremer, and Feldman's loose advisory role became more focused. "My job was to advise Bremer on what a constitution could look like and what steps could realistically get us there," he said.
With Monday's transfer of power to the caretaker Iraqi government, Feldman's role in drafting the interim constitution—the Transitional Administrative Law, or TAL—may turn out to have been a critical one. The constitution provides for the election of the National Assembly this year, sets out the responsibilities of the interim authorities, and declares a robust bill of rights for citizens. One article outlines the relationship between religion and state, and others the issues of transitional justice, an explosive topic in a country that witnessed mass violations of human rights. The document defines the federal nature of the state, keeping inviolate the "unity"of the country.
It may look good on paper, but now the interim constitution is under attack, its prospects as the basis of law in doubt. Ayatollah Ali Sistani, Iraq's most powerful Shia leader, demanded that the United Nations Security Council leave mention of the constitution out of its latest resolution on Iraq. Iraqi prime minister Ayad Allawi has said it would serve as the basis of law, "for now," leaving Kurdish authorities, who had the most to gain from the constitution, feeling more than a little uneasy. The TAL's viability was further undermined by Allawi's announcement that the violence in Iraq might mean the imposition of martial law in parts of the country.
"There's no provision in the TAL for states of emergency," Feldman admits.
Khaled Abou El Fadl, a law professor at the University of California at Los Angeles, said he had early concerns about the process of drafting Iraq's constitution, much of it based on conversations in the Iraqi legal community. Abou El Fadl, an Egyptian who specializes in Islamic law, said the Bush administration never approached him for advice on Iraq.
"A constitution expresses some sort of consensus," Abou El Fadl said. "A nation's soul-searching about its fundamental moral commitments.
"The Iraqi constitution concerned me from a variety of perspectives," he continued. "A lot of cooks put their hands into the pot. There was a lot of authoritative input by various elements in the U.S. as to not just what the Iraqi commitments are going to be but what the occupying country deems to be acceptable."
Some of the controversy had to do with Feldman himself. The late Edward Said, writing last year in Egypt's Al-Ahram Weekly, observed that the U.S. media described Feldman as "an extraordinarily brilliant expert in Islamic law, [who] had studied Arabic since he was 15, and grew up as an Orthodox Jew. But he has never practiced law in the Arab world, never been to Iraq, and seems to have no real practical background in the problems of post-war Iraq. What an open-faced snub not only to Iraq itself, but also to the legions of Arab and Muslim legal minds who could have done a perfectly acceptable job in the service of Iraq's future. . . . [T]he contempt is thick enough to cut with a knife."
Abou El Fadl, who called Feldman impressive as an academic and a "future star," said he was troubled that more Arab jurists weren't consulted for input. "We felt that we do have extensive ties with the Middle East, friendships that go back 10 years with Iraqi jurists and lawyers and so on. It felt like an intentional avoidance of having us involved in any way. I hate to say this, but there is the feeling that [we] cannot be trusted because we are Arabs or Muslims."
As far as Noah Feldman knows, he was picked for his post because he was qualified. He is a constitutional scholar, speaks Arabic, and authored a book, After Jihad, on the relationship of Islam and democracy. He stood out among his Republican colleagues in Iraq, he recalled, because he is a Democrat and a liberal. He said he was saddened by the criticism from Professor Said, whose work he respects. "It was almost a throwaway line. One of the things that always impressed me about the U.S. is that we choose people for jobs based on skill sets, not ethnicity." Besides, Feldman noted, who had experience with the problems of post-war Iraq?
It is not altogether clear how much Feldman finally contributed to the TAL. He stressed that work on the draft constitution involved a number of individuals, many of them Iraqi, including Faisal Istrabadi, an adviser to onetime Governing Council member Adnan Pachachi; Adel Abdul Mahdi, now Iraq'sfinance minister; and Salem Chalabi, a nephew of Ahmad Chalabi and now in charge of Saddam Hussein's trial.
At the same time, Feldman expresses particular satisfaction with the work, pointing for example to an article that delineates the relationship between Islam, conceived as "a" source of legislation and the official religion of the state, and democracy.
"I was trying to influence the issue I cared most about. This document would have to fully acknowledge the role of Islam and its compatibility with democracy," he said. "This was a new idea to the CPA people. Most had the idea that any democracy had to be secular. I'm proud of that provision. It's totally original language. I hope that will be the lasting legacy of that document."
Feldman said he went to Baghdad to serve not just Americans, but Iraqis as well. If in doing so he became a symbol of American paternalism, it may not have been entirely his fault. By the time the TAL was signed in March, the occupation was criticized by a large majority of Iraqis, its motives seen as mostly predatory. The members of the Governing Council, who signed the interim constitution, were regarded as American puppets. Iraqis, unsurprisingly, wanted their country back—and without laws that prejudiced their future.
"The real issue is, if Iraqis were given a free choice, what kind of commitments would they make?" asks Abou El Fadl. "I have a lot of friends from Saddam's time who hated his guts. It would have been a wonderful experience to work with them to shape something that is authentically Iraqi and an example to others."