Syracuse Journal of International Law and Commerce

Summer 2004

Syracuse University College of Law

Article

*149 IRAQ AND THE FUTURE OF UNITED STATES FOREIGN POLICY: FAILURES OF

LEGITIMACY

Henry H. Perritt, Jr. [FNa1]

Perritt, Jr.

I. Introduction

Recently, I published a law review article, "Structures and Standards for Political Trusteeships," which sought to draw lessons from international interventions in Bosnia, Kosovo, East Timor, Afghanistan, and Iraq. [FN1] The article offered a number of "prescriptions" for success in such "political trusteeships." [FN2] Enough time has passed, since the United States attacked Iraq seeking "regime change," to permit a focused assessment of the Iraq venture according to the prescriptions offered in the earlier article. This article evaluates the political trusteeship in Iraq, and concludes that the United States failed to apply many lessons that the international community learned from preceding political trusteeships, and that the result is likely to be a serious unraveling of important, though intangible, sources of leverage for U. S. foreign policy and national security.

It would be a mistake, however, to overlook the positive aspects of the Bush Administration's Iraq intervention. On the whole, the Administration did poorly in seeking and creating international legitimacy for its political trusteeship, but it belatedly embraced some of the prescriptions for building internal legitimacy by seeking to establish the foundation for a liberal democracy and perceiving the need for an exit strategy. The political trusteeship in Iraq has recognized the need to build political structures for managing internal conflict. It has sought to avoid democratic elections before the mediating institutions of a liberal democracy had sprouted. It has been deliberate in its effort to *150 identify appropriate local and external elites. Despite these indicia of sophistication, the Bush Administration's Iraq policies have achieved modest results at best, and have been applied inconsistently. Often the implementation of the prescriptions was flawed and naïve, or driven by ideology or cronyism.

Abandoning a foolish early myth that the occupation army would be uniformly embraced, the Administration came to recognize, by late October of 2003, that intolerance for the occupying forces was high and building. Any sound exit strategy had to result in a turnover of governmental power before legitimacy of the trustee broke down completely. Working under this time pressure, the Administration formulated reasonably coherent concepts for evolving the initial Interim Authority into a more effective and more representative Iraqi interim government, while exploring a variety of ways in which to improve representation. At the same time, the Administration deferred popular elections until more progress was made on erecting mediating institutions.

The Bush Administration consciously was willing to pay the price of reduced international legitimacy in order to have greater control over a political trusteeship aimed at establishing internal legitimacy, building the institutions of a liberal democracy, and defining for itself an appropriate exit strategy. [FN3] Whether the results prove worth the price depends on how competently the U.S. exercises this control. So far, internal legitimacy is impaired by U.S. dominance of the political trusteeship. The institutions of liberal democracy are emerging slowly, if at all, amidst chaos and violence, and no coherent exit strategy, linked to concrete progress in building local capacity, is apparent.

The impact on American foreign policy depends in part on whether the Iraq intervention is successful. If it is, the United States will send a powerful signal that its new National Security Strategy is viable, at least in the short run, and the dynamics of international relations will reflect reactions to that doctrine. [FN4] An unsuccessful intervention, however, will undermine the credibility of the National Security Strategy and, with it, the credibility of American power. The lack of any post-war planning led to chaos, which undermined the international and internal legitimacy of the trustee. "Success" as originally defined by the Bush Administration is hard to imagine at this juncture--just after the handoff of sovereignty to an un-elected Interim Government.

*151 In either event, this article argues that the Iraq intervention has distracted attention from more important foreign policy objectives, including the urgent effort to understand the genesis of terrorism and to mobilize American resources to reduce the terrorist threat, while working through multilateral frameworks. Accomplishment of these is necessary for achieving important foreign policy goals.

II. Measuring the Iraq Intervention Against the Prescriptions for Successful

Political Trusteeship

The experiences in Bosnia, Kosovo, East Timor, Afghanistan, and Iraq, combined with the history of earlier international interventions, teach that political trusteeships succeed when they are defined clearly to include the basic attributes of sovereignty: when they enjoy international legitimacy, when they attain an explicit goal to build liberal democracy, and when they are shaped by a coherent and realistic exit strategy to hand-off power to local institutions as their capacity increases. [FN5] The U.S.-led Iraq intervention is deficient in differing degrees on most of these measures. On the whole, the Administration did poorly in seeking and gaining international legitimacy for its political trusteeship in Iraq and stumbled badly in following the prescriptions for building internal legitimacy. While the U.S. civilian administration of Iraq apparently perceived the need for establishing the foundation for a liberal democracy, and perceiving the need for an exit strategy, the lack of serious planning and ignorance of Iraqi political dynamics made these goals more rhetorical than realistic. At best, the Bush Iraq policies may be faulted for achieving modest results and showing every sign of being stampeded into a premature exit.

A. Failure to Define the Trusteeship Clearly.

1. Clearly Define Where Sovereignty Resides

Political Trusteeship argues that effective political trusteeship requires a clear legal framework investing temporary sovereignty in the trustee. [FN6] The legal framework for Iraq is ambiguous in important respects. The United States government has insisted on unilateral authority to make major decisions with respect to civil administration and the development of Iraqi institutions but has failed to explain how it exercises this authority through formal legal texts. [FN7] The United Nations *152 has declared that sovereignty reposes in indigenous organizations, while recognizing interim authority of the occupying powers under international law, providing no real detail as to how this joint exercise of sovereignty is supposed to work or to evolve.

On May 22, 2003, after U.S. and British forces militarily subdued resistance in Iraq, the U.N. Security Council adopted Resolution 1483 ("SCR 1483"). [FN8] The Resolution recognized the role of the U.S. and Great Britain as occupying powers, while also embracing Iraq's self-determination. [FN9]

The Resolution left no doubt that the occupying authorities were to play the role of political trustees:

It "[c]alls upon the Authority, consistent with the Charter of the United Nations and other relevant international law, to promote the welfare of the Iraqi people through the effective administration of the territory, including in particular working towards the restoration of conditions of security and stability and the creation of conditions in which the Iraqi people can freely determine their own political future." [FN10]

The Resolution "[s]upports the formation, by the people of Iraq with the help of the Authority and working with the Special Representative, of an Iraqi interim administration as a transitional administration run by Iraqis, until an internationally recognized, representative government is established by the people of Iraq and assumes the responsibilities of the Authority." [FN11]

The Resolution also authorized the Secretary General to appoint a "Special Representative" to coordinate U.N. international-agency and Authority activities in Iraq, and to support development of local governmental institutions. [FN12]

*153 In October of 2003, the Security Council adopted Resolution 1510, declaring that Iraqi sovereignty resides in Iraqi institutions, and urging the Coalition Provisional Authority (the civil administration established by the occupying powers) to devolve power to local institutions as soon as practicable. [FN13] The Resolution provided for a strengthened United Nations role in supporting local institutions, however, without, suggesting any U.N. power to make governmental decisions. [FN14] Under the Resolution, the local institutions are responsible for designing and implementing processes to write a constitution and hold national elections, with U.N. support. [FN15]

*154 This framework left the political trustee's scope of decision-making responsibility unclear. The U.N. legal framework established a political trusteeship by declaring the duty to develop eventual self- governance and to govern for the benefit of the Iraqi people. The U.N. left the allocation of governing power between international and local institutions vague. It thus resembled Bosnia, except that in Bosnia the local institutions existed and had been recognized as sovereign before international intervention. It was far less focused than the resolutions defining the political trusteeships in Kosovo and East Timor, which left no question that the U.N. was to serve as political trustee. [FN16]

The legal framework for the United States' role through its Coalition Provisional Authority ("CPA") also was ambiguous under U.S. law. The Administrator of the CPA, in his Regulation No. 1, determined, "the CPA shall exercise the powers of government temporarily in order to provide for the effective administration of Iraq during the period of transitional administration . . ." [FN17] It declared, "[t]he CPA is vested with all executive, legislative and judicial authority necessary to achieve its objectives, to be exercised under relevant U.N. Security Council resolutions . . . and the laws and usages of war." [FN18] The CPA thus asserted sovereign powers, yet the source of these powers is unclear.

Congressional oversight of the CPA implied that some attributes of sovereignty remained with the United States, but the President issued no executive order establishing the CPA, and no statute defined it or even explicitly referred to it, except for the Iraq Emergency Supplemental Appropriation Act. [FN19] It is unclear whether the Administrator of the CPA reported directly to the President or to the Secretary of Defense. [FN20] The *155 duties of the CPA were similarly vague, except for a few appropriation-act requirements which are bizarre in their particularity, singling out opportunities for the disabled and women, and ending religious discrimination as mandates for the CPA, but not otherwise addressing political trustee obligations. [FN21] The CPA established the Interim Iraqi Governing Council, which was meant to exercise indigenous authority. But its power was contingent on CPA approval, and it owed its existence entirely to the decrees of the CPA.

While the United States apparently sought to reduce ambiguity in defining the political trusteeship in Iraq by insisting on unilateral authority, the result was a muddle, in terms of who was responsible for what, and in terms of how the trusteeship was to evolve. Within this vague legal framework, de-facto exercise of political power by three independent authorities--the U.N., the U.S.-created CPA, and the CPA-created IGA--inevitably led to confusion and conflict.

When sovereignty was formally transferred to the Interim Government on June 28, 2004, the formal legal documents were less ambiguous than those that had preceded them. A "Law of *156 Administration for the State of Iraq for the Transitional Period," negotiated between the CPA and Iraqi leaders and signed March 8, 2004, provides for the transfer of power from the CPA to a "fully sovereign Iraqi Interim Government" that was to take power on June 30, 2004. [FN22] The U.N. Security Council approved the new arrangement in Security Council Resolution 1546, and the CPA disbanded itself in its Regulation 9. [FN23] Certain legal questions remained unclear. What was the source of authority that the CPA passed to the Interim Government? Presumably sovereignty gained as a result of military conquest. What force do the CPA regulations have under the new regime? CPA order 100 provides that CPA regulations remain in force until they are changed by the new Interim Government. Presumably the source of power to make those regulations was the law of belligerent occupation, given the reference by both the U.N. Security Council and the CPA to the "laws and usages of war."

2. Avoid Archaic Limitations on the Exercise of This Sovereignty

Political Trusteeship argues that successful political trusteeship requires that the trustee be free of archaic limitations on the exercise of governmental powers, particularly those derived from the doctrine of belligerent occupation. [FN24] Under this doctrine, a belligerent occupant may not make changes in law or institutional arrangements beyond those absolutely necessary to protect the security and viability of the occupation. If the changes would be difficult to undo if the previous sovereign returns, the law of belligerent occupancy prohibits them. [FN25] On the other hand, if a change in the status quo is necessary to protect the immediate interests of the population of the occupied territory it is permissible, even though the returning sovereign-ante may have difficulty undoing it. [FN26]

Declarations in the Security Council resolutions for Iraq state, "sovereignty of Iraq resides in the State of Iraq," combined with express limitations on CPA authority to that permitted "under applicable international law and to that to "be exercised . . .under the laws and usages of war," permit the inference that the doctrine of belligerent *157 occupation limits trustee authority. [FN27] The rationale for the limitations on change imposed on belligerent occupants is that the "State of Iraq" continued to exist notwithstanding the U.S.-led invasion. [FN28] The possibility that the limitations of the doctrine of belligerent occupancy are acknowledged by the Security Council's reference to "occupying powers" and "relevant" and "applicable" international law, and by the CPA's reference to "laws and usages of war" is problematic. Respecting these limitations will make fundamental economic, legal, and political reform impossible. Ignoring these limitations will undercut legitimacy.

3. Tie Civil Administration to Military Security Forces

Political Trusteeship argues that successful political trusteeship requires close coordination between political trustees and military as well as security forces operating in the trust territory. [FN29] Such coordination is necessary so that a security environment exists within which the exercise of civilian authority is a reality; and decisions by the political trustee can be enforced. [FN30] While the military occupation of Iraq might seem to meet this requirement due to the seamless integration of the CPA and the occupying military forces, closer examination of the legal structure for the civil administration reveals serious ambiguities about who is in charge and how civilian/military coordination is supposed to occur.

The Administrator of the CPA determined, "the Commander of U.S. Central Command shall directly support the CPA by deterring hostilities; maintaining Iraq's territorial integrity and security; searching *158 for, securing and destroying weapons of mass destruction; and assisting in carrying out Coalition policy generally." [FN31] The shortcoming of this order is that it is unclear whether the Administrator of CPA reports to the Commander of U.S. Central Command, in which case he lacks the authority to give orders to the Commander, or whether the Commander reports to him, as the quoted language implies. In the absence of a formal delegation of authority from the Secretary of Defense or the President to the Administrator of the CPA, the Administrator is not in the chain of command of the Commander and thus lacks authority over him. [FN32] Turnover of sovereignty to interim Iraqi authorities exacerbates the confusion because now, theoretically, U.S. forces are subject to direction by a foreign government.

B. Failure to Achieve International Legitimacy

Political Trusteeship argues that successful political trusteeship requires international legitimacy, which, in turn, depends on harnessing international law, reducing threats to international peace and security, holding democratic elections, enforcing human rights, demonstrating governmental effectiveness, providing charismatic leadership, and bringing an end to national-stage conflicts. [FN33] On the eve of the U.S.-led attack, President Bush identified threats to international peace and security as the principal justification for starting the war to force Saddam Hussein from power. [FN34] In particular, he argued that Saddam Hussein's possession of weapons of mass destruction and the imminent *159 likelihood of his using them justified immediate use of military force without waiting for further U.N. inspections or for explicit authority for military force from the U.N. Security Council. [FN35] He asserted that the war was legal under the privilege of self-defense and under earlier Security Council resolutions. [FN36] Immediate intervention was also justified as necessary to prevent further human rights abuses by the Iraqi regime and to install democracy in Iraq. [FN37] The United States largely failed to convince the international community that any of these justifications was valid. [FN38] Formal Bush Administration justifications touched the bases of international legitimacy, but its political rhetoric emphasizing unilateralism, the divergence between its perceptions and the perceptions of most of the rest of the world of Iraq's threat to international peace and security, and the subsequent lack of concrete evidence to back Bush Administration claims, made its references to the hallmarks of international legitimacy appear disingenuous or incompetent. [FN39]

1. Harness International Law

In seeking international support for its intervention in Iraq, the Bush Administration underestimated the power of international law as a source of international legitimacy. In the Administration's attempt to justify invading Iraq, international legal arguments were muted and some of the rhetoric suggested that international law was irrelevant. [FN40]

*160 Achieving international legitimacy for political trusteeship depends in substantial measure on persuasive arguments that the intervention into the affairs of another country satisfies international law. The decades-old debate over the relevance of international law to a successful foreign policy and its impact on state behavior continues. [FN41] Nevertheless, appeals to international law influence public opinion in democracies, and, in turn shape the foreign policies of democratic governments. [FN42] The norms of international law also shape the attitudes of non-state actors such as the growing universe of Non-Governmental Organizations ("NGOs"), which exercise increasing influence in international forums and with domestic publics.

International law's power as a source of international legitimacy is strengthened by the evolution of the international relations system. The international legal and political system no longer can be represented accurately by a model of impermeable states interacting only with each other. [FN43] Many private institutions enjoy power in international politics and law that rivals that exerted by traditional states. [FN44] "It is through the *161 non governmental organizations and, more and more often, through the mass media that world public opinion makes its voice heard on the major problems requiring action at the international level." [FN45] NGOs and other private actors deal with each other and exert pressure through national interest groups, thereby shaping the policies of states. [FN46]

New communication technologies, including the Internet, empower national interest groups, strengthening the interpenetration process. [FN47] The same technologies, as they blur the lines between domestic interest groups and international NGOs, also strengthen the power of individuals and small-group interests-weak in domestic politics-to be expressed and given fulfillment through international NGOs. [FN48] No longer is the choice of intervention solely the province of political elites and professionals in diplomacy; now, due to information technology and the growing influence of NGOs and other international interest groups, it is a mass political question. Democratization strengthens the effect of international law because international law, as rhetoric, influences masses more than it influences leadership cadres, who are more likely to set policy based on interests in the realist tradition.

The Bush Administration conspicuously failed to mobilize international law as a source of international legitimacy, in significant *162 part because of its embrace of neorealist theories of international relations that demean the effect of international law. [FN49] It failed to convince the international community that its invasion was justified by the privilege of self-defense, and it gained only marginally greater acceptance of the proposition that the invasion was legal because it was authorized by earlier Security Council resolutions on Iraq. [FN50]

(a) Understand that International Law Operates Within an Evolving Set of Norms

International law is not fixed; it evolves through a combination of state practice and opinio juris. Several commentators and the National Security Strategy document issued by the Bush Administration, argue that the U.S.-led invasion of Iraq was an appropriate and necessary way to modify the privilege of self-defense recognized in customary international law and incorporated into Article 51 of the U.N. Charter. The modification brings the privilege in line, they argue, with the realities of a world in which little warning of terrorist attacks or attacks with weapons of mass destruction can be expected. [FN51]

International law evolves in response to changes in state practice, but the U.S. invasion of Iraq represented a revolution-or perhaps a renunciation-with respect to international law. [FN52] Unlike Israel's *163 preemptive attacks against Egypt and Syria in 1967, Iraq did not have a massed army, ready to attack the United States. [FN53] Moreover, the avowed purpose of the U.S. invasion of Iraq was to displace a sitting government; Israel pursued only a counter-force strategy, and left the governments of Syria and Egypt intact. There was no imminent threat from Iraq, and the U.S. strategy was not proportional to the threat that existed. [FN54]

The Iraq invasion differed significantly from preceding instances of international intervention. Unlike Desert Storm, the goal in Iraq in 2003 was regime change. Unlike Desert Storm, there was no advance U.N. Security Council resolution and there was no broad coalition. In Iraq in 2003, a political trusteeship resulted without U.N. approval. The sitting government continued after Desert Storm, albeit subject to significant U.N.-approved economic and security sanctions. Unlike the international intervention in Bosnia, U.S. intervention in Iraq displaced a sovereign government, establishing a foreign political trustee with full executive, legislative, and judicial powers. Unlike Kosovo, Iraq was not supported by a real coalition of major states. [FN55] The post-war civil administration was unilateral, not multilateral. [FN56] The political trusteeship was an aspect of military occupation; not the responsibility of a separate civil administration. [FN57]

While plausible arguments exist that international law needs to evolve in the wake of the September 11, 2001 attacks against the United States, the Iraq invasion was not incremental, which would have enhanced claims of a deliberate effort by the U.S. to nudge international norms in the right direction. Rather, it was radical, and thus, more easily viewed as a renunciation of those norms altogether.

*164 (b) Reconcile Principles of Sovereignty and Self-Determination

The U.S.-led intervention in Iraq failed to draw legitimacy from international law's respect for sovereignty or from its respect for self-determination. After the end of World War I, the international community struggled to integrate the conflicting norms of respect for sovereignty and self-determination into the international legal system. Intervention in support of either norm enjoyed a measure of legitimacy in the international community.

The conflicts in Bosnia, Kosovo, and East Timor were the products of struggles for self-determination by a minority population against assertions of sovereignty by an overarching state. [FN58] International intervention in those cases could be justified by the need for intervention to protect the privilege of self-determination and the need to protect human rights of populations seeking self-determination, even though intervention undermined claims of sovereignty. [FN59] The 1991 military action in Kuwait and Iraq could be justified as necessary to protect Kuwait's sovereignty.

The U.S.-led invasion of Iraq in 2003 flouted both sovereignty and self-determination. Iraq's sovereignty was intact under Saddam Hussein and he presented no imminent threat to the sovereignty of any other state. The Bush administration expressed the goal of self-determination for the peoples of Iraq, but was vague as to which peoples needed international intervention to realize their aspirations of separate or different government. Moreover, the facts did not support intervention based on the principle of self-determination. Unlike Bosnia, where the seceding state had declared independence after a referendum; unlike East Timor, where the people of a specific territory petitioned the international community for separation after a referendum; and unlike Kosovo, where a separate and parallel government existed, backed up by a growing guerrilla insurgency; the desire for political change in Iraq arose in the minds of the leadership of a foreign state rather than from the objective behavior of peoples in Iraq. [FN60]

*165 (c) Seek Consent or U.N. Approval

Generally, popular opinion accepts the premise that political trusteeship or military action leading up to political trusteeship is not permissible under international law unless the United Nations Security Council approves the international intervention in advance. This premise enjoys uncertain support in both state practice and in scholarship of international law. Nevertheless, approval by the U.N. Security Council, either before or after the fact, is broadly perceived as a powerful source of legality and international legitimacy:

"[T]he preemptive use of force by the United States against Iraq or any other sovereign nation pursuant to an appropriate authorization by the Security Council would seem to be consonant with international law. Less clear is whether international law currently allows the preemptive use of force by a nation or group of nations without Security Council authorization." [FN61] Of the major post-Cold War political trusteeships, only East Timor and Bosnia enjoyed unequivocal approval in advance. [FN62] In Kosovo, advance approval for the NATO bombing campaign was not sought, but advance approval by the U.N. preceded the entry of NATO troops and the establishment of the U.N.-run political trusteeship. [FN63] In Afghanistan, the U.N. Security Council resolution did not clearly approve the use of force. In Iraq, advance approval was altogether lacking.

Under Article 51, advance approval of military force by the Security Council is unnecessary when application of force is justified as "self-defense." [FN64] Most experts question whether the U.S.-led invasion of Iraq complied with the privilege of self-defense under international law. [FN65] Subsequent U.N. Security Council resolutions recognize the fact of U.S. trusteeship, but are ambiguous about its legal scope, emphasizing the need to return responsibility to Iraqi institutions, which, they say, have never relinquished sovereignty. [FN66]

*166 Post-invasion U.S. policy did not seek clear U.N. Security Council approval until the June, 2004 handover. National Security Advisor Rice said, at the beginning of the U.S.-led invasion of Iraq, that the United States envisioned only a limited role for the U.N. in the political trusteeship for Iraq. [FN67] In November of 2003, Germany, Britain, and France called for an international conference on Iraq, similar to the conference held for Afghanistan in 2001. [FN68] Such a conference presumably could have worked out a mandate to be adopted by the Security Council, as similar conferences did in Bosnia, Kosovo, and Afghanistan. [FN69] The United States asked the Security Council to wait for a letter from the Iraq Governing Council, expected to contain "instructions" regarding U.N. involvement in the ongoing political trusteeship in Iraq. [FN70]

The Bush Administration has paid the price of reduced international legitimacy by sidelining the U.N. in order to have the benefits of better control over a political trusteeship aimed at establishing internal legitimacy, building the institutions of a liberal democracy, and defining for itself an appropriate exit strategy. [FN71] Whether the results prove worth the price depends on much greater success than is apparent so far in increasing internal legitimacy for the political trusteeship, building the institutions of liberal democracy, and in linking an exit strategy to concrete progress in building local capacity.

*167 2. Reduce Threats to International Peace and Security

Even if the U.S.-led invasion of Iraq and its subsequent political trusteeship violated international law in a formal sense, these actions might nevertheless have enjoyed a sense of international legitimacy if the United States had proven correct in its assertion that its unilateral use of military force was necessary to protect the peace and security of other states. As the U.S.-led attack against Iraq began, President Bush claimed that the war and the elimination of Saddam Hussein from power would enhance international peace and security. [FN72] The absence of evidence of ties between the Iraqi regime of Saddam Hussein and al Qaeda or other international terrorist organizations and the absence of weapons of mass destruction have negated this possibility.

The U.S.-led invasion of Iraq may actually have increased threats to international peace and security. In the words of a United States Institute of Peace review author:

"[S]o far as the battle against al Qaeda is concerned, the invasion of Iraq was a non sequitur. No convincing evidence of a substantive link between the Baghdad regime and Osama bin Laden's organization has ever been presented, and, in fact, the intelligence record of the last decade suggests that while contacts may have occurred and terrorist operatives may have crossed through Iraq, no collaborative efforts of note have occurred between the arch-secularist Baath regime and the radical fundamentalists of al Qaeda.

"For the war on terrorism in the broadest sense, the invasion of Iraq brought two important advantages: A state sponsor of terrorism, albeit a rather inactive one, has been removed, and the demonstration of military might in toppling Saddam Hussein's regime has given the United States more leverage against the outstanding state sponsors of terrorism--Iran and Syria. . . . But as a threat to U.S. interests, the state sponsors are of relatively minor consequence compared to the non-state actors such as al Qaeda--which may in fact benefit from the American occupation of Iraq. . . . How does al Qaeda benefit? The greatest windfall for bin Laden's forces comes in the realm of propaganda, not a small issue for a movement that views establishing itself as the undisputed champion of Islam as a primary goal. By occupying Iraq, the United States has given al Qaeda a major *168 opportunity to drive home its argument that the "leader of world infidelity" seeks to destroy Islam and subjugate its believers. This has been at the very core of al Qaeda's message throughout its existence, and the group is now using the example of Iraq to reap gains in the areas of recruitment and fundraising.

"Independent polling by groups such as the Pew Foundation and others has established that conditions are ripe for this message since there has been a massive turn in public opinion against America in the last two years. The data suggest that the long slow erosion of positive feelings about the United States has given way to a landslide during the period of the war on terror, and especially during the run-up to the invasion of Iraq. A long-term U.S. presence in Iraq, a central country within the historic realm of Islam and a longtime seat of the caliphate, will make it difficult to reverse these impressions. Positive perceptions about the reconstruction of Iraq may help, but they will have to be strong ones, widely affirmed by Iraqis themselves, to reverse this trend.

"There are also further threats, such as proliferation of weapons and other dangerous materials. In the worst-case scenario, weapons of mass destruction material may have been privatized by regime adherents who know their future in an American-guided Iraq is unpromising. Additionally, weapons such as shoulder-fired anti-aircraft missiles, of which Iraq had many, may have fallen into terrorist hands--a possibility that has been voiced by senior U.S. military officials." [FN73] The Peace Institute report makes it clear that U.S. intervention in Iraq does not enjoy international legitimacy based on its mitigation of threats to international peace and security.

3. Hold Democratic Elections

In Iraq, the United States has failed thus far to employ democratic elections to build international legitimacy for its political trusteeship. [FN74] Democratic elections serve two purposes in legitimating political trusteeships. First, they serve to express the self-determination aspirations of a people opposing exercise of sovereignty by a state of which they are a part or a regime to which they are subject. Second, *169 democratic elections validate local governmental institutions that the trustee is preparing for eventual self-government. [FN75]

As self-determination is a potent legal basis for intruding on sovereignty, elections linked to the power of self-determination are a powerful source of international legitimacy for international intervention. [FN76] Elections in Bosnia in 1991, in Kosovo in 1991, and in East Timor in 1982 served this function. [FN77] With democracy as an increasingly embraced goal of the international legal system, post-intervention elections support claims that the political trusteeship is necessary in part to help local populations achieve the benefits of democracy. [FN78] Elections, under the supervision of a political trustee in Bosnia in 1996, in Kosovo in 2000, and in East Timor in 2001, served this function. President Bush embraced the spread of democracy as a goal of the international order. [FN79]

In Iraq, the United States launched a military attack without any popularly declared will for intervention or change in political arrangements. [FN80] The U.S.-led political trustee resisted early local *170 demands for elections and instead appointed members of the Governing Council, seeking to validate the exercise of power by local political leadership and institutions. [FN81] Further, the trustee backed off from expressed plans to write a constitution and subject it to electoral approval before turning over power to the appointed institutions. [FN82]

Democratic elections as a source of international legitimacy have thus played no role in Iraq so far. The Bush Administration apparently envisioned, not early democratic elections, but spontaneous "emergence" of representative leadership. [FN83] Now, elections are scheduled for January, 2005, but it is not clear as of this writing whether they will be held, or if held, successful.

4. Enforce Human Rights

When political trustees enhance recognition and enforcement of human rights, they enjoy greater international legitimacy. One of the changes in the international law of sovereignty and non-intervention, codified in Article 2(4) of the U.N. Charter, is the growing recognition that egregious human rights abuses can justify international intervention notwithstanding opposition by the sovereign committing the abuses. [FN84] Part of the justification for the U.S.-led attack against Iraq was Saddam Hussein's abuse of human rights within Iraq. As the U.S.-led attack against Iraq began, President Bush claimed that the war and the removal of Saddam Hussein from power would enhance human rights in Iraq. [FN85]

*171 After President Bush declared the military phase of the intervention complete, the Administration continued to consider the enhancement of human rights as a goal of the political trusteeship. [FN86] Arguably, Administration' reluctance to have elections that might result in Shiite dominance was consistent with a position aimed at protecting rights of minorities. Nevertheless, the conduct of occupation forces, the absence of judicial review, and the protracted detention of persons without statement of charges or access to counsel raises questions among human rights activists as to the success of the occupying authorities in improving human rights. [FN87] Prisoner abuse by U.S. armed forces entirely undermined any claim that the intervention effectively enhanced human rights protection. [FN88]

5. Develop Governmental Effectiveness

In seeking international legitimacy for a political trusteeship, nothing succeeds like success. If the early stages of political trusteeship in Iraq had been as successful as the military campaign, some of the international skepticism about the merits of invading and the legitimacy of post-invasion political trusteeship would have dissipated. Instead, the chaos and singular inability of the occupying forces to deliver effective government undermined international legitimacy. [FN89] It would have been bad enough if the United States had been perceived as having a clear plan for its political trusteeship after Saddam Hussein was deposed and then had difficulty turning it into reality. It was far worse that there was no plan and, apparently, indifference to the need for a plan. This reinforced international perceptions that the United States was committed to belligerent unilateralism in the military sphere but *172 was incapable of appreciating the complexity of successful nationbuilding. [FN90]

The widespread looting in the earliest days of the political trusteeship was obviously a bad start; and continued inability of the political trustee to provide basic security undercuts any perception that the trusteeship was effective even on the basics. [FN91] Continued lack of transparency and accessibility to the general Iraqi public, dumping the first civil administrator, Jay Garner, two major zigzags on approaches to elections and writing a constitution all reinforce the perception of the Iraq trusteeship as bumbling rather than effective. [FN92] Garner, the former civil administrator, acknowledged poor planning and reported an order by Secretary of Defense Donald Rumsfeld that he dismiss Tom Warrick, the State Department official responsible for an extensive State Department study on post-war planning in Iraq--a study which forecast extensive looting, among other things. [FN93] This is evidence of indifference to the efficacy of post-invasion governmental effectiveness.

Escalating violence throughout 2004 continued to thwart the goal of effective government.

6. Install Charismatic Leadership

Charismatic leadership of the political trustee at the outset of trusteeship enhances international legitimacy. A charismatic foreign administrator like Douglas McArthur in Japan, or a charismatic local like Winston Churchill, can build international support simply by asking for it and working to obtain it. [FN94] In Iraq, there was no such leadership.

The United States government apparently thought that Ahmad Chalabi might play this role but his capacity to mobilize international public opinion in his favor was largely frustrated by initial perceptions that he has a corrupt past, growing perceptions that he had little support *173 from within Iraq and, later, by charges that he spied for Iraq. [FN95] But at least he was willing to play the role, actively working to build support in key constituencies at the United Nations and the United States, as well as those in Iraq. [FN96] American and other international leaders have been less successful. General Jay Garner, the initial choice to lead the political trusteeship was singularly ill-suited, lacking political or diplomatic experience and apparently thought to be qualified only because Secretary of Defense Donald Rumsfeld knew him personally. [FN97] Ambassador Bremer seemed to be a better choice, presenting a buttoned-down diplomatic persona reinforced by confidence and an aura of competence. [FN98] However, he never seemed to campaign actively either in foreign capitals or with the Iraqi population. It is not clear that ordinary observers would characterize him as "charismatic." [FN99] It remains to be seen whether U.S.-picked Prime Minister Iyad Allawi will prove more charismatic. In his election-season trip to the U.S. his performance best can be described as "wooden."

In any event, the leadership element of the political trusteeship in Iraq would be better served by an experienced effective democratic politician such as Paddy Ashdown as High Commissioner in Bosnia. [FN100] The appointment of U.N. High Commissioner for Human Rights Sergio *174 Vieira de Mello as the top UN official in Iraq was a step in the right direction. But he had barely begun when he was assassinated; a major setback to installing charismatic leadership at the head of the political trusteeship. [FN101]

7. Bring an End to National-Stage Conflicts

The justification for international intervention into the affairs of a state often relates to inability-or unwillingness-of the existing government to protect human rights and to maintain minimal physical security. A political trustee gains international legitimacy when it demonstrates the capacity to end-or at least to control-conflicts on the national stage. In Iraq, part of the basis for continued international sanctions and restrictions such as no-fly zones was to prevent human rights abuses of the Kurds and of other ethnic or religious groups opposed to Saddam Hussein. [FN102]

If the U.S.-led occupation had mitigated these underlying intra-Iraq conflicts, it might have attracted some measure of international legitimacy for its intervention. But as of December 2003, the intervention had not reduced national-stage conflicts between Sunni and Shi'a Muslims and between these groups and the Kurds. [FN103] Indeed, the CPA regularly was caught off guard by these conflicts, and was forced to back away from its insistence that the Governing Council write a constitution because ethnic and religious conflicts within the Governing Council made writing a constitution infeasible. [FN104]

Apart from insisting that the Governing Council proceed with a process for becoming more effective and preparing to receive more authority, the CPA revealed no real plan for bridging the conflicts that had undermined the Council's effectiveness. Neither the Bush Administration nor the CPA advanced any new ideas, such as the one advanced by Leslie Gelb on November 25, 2003, to divide Iraq into three separate states, or largely autonomous areas within a formal *175 Iraq. [FN105] As of this writing, not only does the Iraq intervention not draw international legitimacy from its effectiveness in ending national-stage conflicts, it looks like it is creating a situation in which these conflicts may become more problematic than they were under the preceding regime--in terms of political stability, if not human rights protection.

C. Failure to Achieve Internal Legitimacy

Political Trusteeship argues that political trusteeships are unlikely to succeed unless they build internal legitimacy, which, in turn, depends on delivering effective government, promoting governmental transparency, providing mechanisms for judicial review, promoting popular confidence in local institutions, respecting indigenous personal and group pride, implementing structures compatible with common ideology, and harnessing tribal custom. [FN106] These tests for internal legitimacy overlap the prescriptions for building a liberal democracy, considered in Part II.D.

The Bush Administration's intervention in Iraq deserves no higher marks for its quest for internal legitimacy than for its failure to obtain international legitimacy. Difficulties in obtaining internal legitimacy for the political trusteeship in Iraq are due, not to flaws in the approaches being pursued by mid-2004, but to the absence of any coherent plan for civil administration before the occupation began. [FN107] Early mis-steps in civil administration may have undermined internal legitimacy to such an extent that belated attention to the hallmarks of internal legitimacy came too late. Nevertheless, the experience in Iraq may provide useful nationbuilding lessons for the future. Iraq may be viewed in retrospect as an opportunity lost, where success was jeopardized by the failure to apply lessons learned from past political trusteeships from the outset, instead relying on a naïve expectation that a liberal democracy would fall into place spontaneously as soon as Saddam Hussein was removed by military force.

1. Deliver Effective Government

Governmental effectiveness, beginning with basic security--"law and order"-- is a powerful foundation for internal legitimacy. As Political Trusteeship pointed out, instances abound in which a local *176 population was willing to forgive other shortcomings of a government that could deliver security and basic governmental services. [FN108] If the U.S.-led occupation had produced an Iraq without Saddam Hussein, with the same levels of electricity, public order, and employment as Saddam Hussein provided, then it would have enjoyed a base level of internal legitimacy on which to build, permitting construction of the institutions of liberal democracy. However, this did not happen. Things got worse much worse for ordinary Iraqis after the U.S. military occupied Iraq. [FN109] Any increment of internal legitimacy attributable to more effective government is yet to be seen--if it ever can be achieved, given the poor start.

2. Promote Governmental Transparency

As Political Trusteeship points out, any trusteeship inherently creates confusion about what the law is, who is in charge, and where to go to resolve uncertainties or disputes. Transparency of the trusteeship mitigates the confusion. [FN110] The Iraq Emergency Supplemental Appropriation Act recognizes the need for transparency in certain activities of the CPA by requiring that reports be posted on the Internet. [FN111]

The U.S.-led political trusteeship in Iraq gets mixed marks on transparency. To its credit, the CPA, unlike its Reconstruction Authority predecessor under General Garner, had a website, including the full text of regulations and orders issued by the Administrator of the CPA. [FN112] On the other hand, as Part II.A explains, the legal framework for the CPA was vague and the content of the CPA website did not answer important questions about the chain of command for CPA decisions. [FN113] Also, even as the CPA made a point of transferring more *177 authority to the Governing Council, the Governing Council was completely non-transparent, with no website of its own, or even a link from the CPA website as of the end of 2003. [FN114] The Interim Iraqi Government had no website nearly six months after its creation.

3. Provide Mechanisms for Judicial Review

When any authority makes governmental decisions, international legitimacy will be impaired unless those affected by the decisions have some place they can go to test the legality of the decisions. As Political Trusteeship points out, the international community insists on rule of law in countries attracting international attention. [FN115] Any prescription for rule of law starts with the opportunity for judicial review of governmental decisions. To earn internal legitimacy for a political trusteeship justified in any part by the need to establish a rule of law, the political trustee must provide some mechanism for judicial review.

The Iraq Emergency Supplemental Appropriation Act provides for an independent Inspector General with limited oversight responsibilities, but otherwise neither the U.S. nor the Interim Iraqi Government has done anything to afford tribunals within which the legality of trustee decisions can be tested. [FN116] It is not inconceivable that someone could file a civil action in a United States District Court seeking review under the U. S. Administrative Procedure Act of decisions by some component of the CPA. [FN117] Litigating the merits of CPA decisions in this context is surely inferior to litigating them in some specialized tribunal which might be established by the CPA.

*178 4. Promote Popular Confidence in Local Institutions

As political trusteeships are justified by their goal of preparing local populations for self-government, their internal legitimacy, is measured in part by their success in establishing local institutions that themselves enjoy local legitimacy. The record of the U.S.-installed institutions of local government is weak in terms of local legitimacy. Although the Governing Council was carefully balanced by ethnicity and religion, it comprised individuals with weak support in local constituencies. The institutions' reputation for being puppets of the United States is warranted. At the end of November 2003, there was no apparent plan for shoring up the legitimacy of local institutions except for vague hopes that legitimate leaders would somehow "emerge." A year later, it was not clear that the Interim Iraqi Government was fairing much better.

5. Respect Indigenous Personal and Group Pride

Internal legitimacy of government institutions in any society is determined in large part by the attitudes of opinion leaders. These elites lead institutions that form part of the social fabric of the local society. Affronts to the pride of such leaders and affronts to the dignity of individuals make support from these sources less likely.

Aggressive tactics by U.S forces in Iraq, while appropriate to gather intelligence and to combat terrorist cells, are inevitably imprecise and regularly offend local sensibilities. Any foreign military force faces obstacles because occupation is an affront to local aspirations for autonomy.

Although some commanders have avoided psychological assaults on local customs and mores, the U.S.-led occupation of Iraq began with a public and explicit indifference to these issues. It was slow and ineffective to shape trustee behavior needed to enlist support based on local pride, rather than undermining it.

6. Implement Structures Compatible with Common Ideology

As Political Trusteeship explains, ideology is a powerful source of legitimacy. [FN118] This is especially true in states where Islam predominates because Islamic doctrine integrates religion and politics. [FN119] Antagonism *179 against an outside force also can be a potent ideology. [FN120] In Iraq and other parts of the Arab world, Islamic fundamentalism combines with anti-Westernism, as religious leaders blame Western imperialism and cultural influences for humiliation suffered by the Muslim World. [FN121]

As Part II.B § 7 explains, disagreements over the role that Islam should play in a new Iraqi Constitution frustrated early efforts to write a constitution. [FN122] Columnist Thomas Friedman argues that the struggle over the future of Iraq is fundamentally a struggle between anti-American elements who seek to portray the U.S. as anti-Muslim and the United States. The United States is a country whose credibility in this struggle is greatly impaired because President Bush lets "one of [his] top generals and [his] pals on the Christian right spew hate against the Prophet Muhammad," which strengthened the will of young anti-Americans. [FN123]

7. Nurture Charismatic Leadership

Charismatic leadership enhances internal and international legitimacy. [FN124] The political trusteeship in Iraq has so far failed to enlist a charismatic local leader in support of its enterprise. Ahmad Chalabi is, by some accounts charismatic but he is not really "local" having lived in exile since 1956. [FN125] Prime Minister Iyad Allawi projects a tough demeanor, which appeals to many Iraqi's, but his political closeness to the Bush Administration undermines his local support.

Other possibilities existed at the end of the military campaign. One of the most promising candidates while under protection of U.S. forces, the very charismatic and pro-U.S. Ayatollah Abdul Majid Al Khoei, was assassinated on April 10, 2003 in Najaf. [FN126] Others now include *180 moderates such as Ayatollah Al-Sistani, who derailed late October U.S. plans for installing a transitional local government without elections, and "radicals" like Muqtada Al-Sadr, who is in his 30s, who is popular among the country's poor and its youth. So far, the U.S. has made little headway in attracting Al Sadr's support. [FN127] He calls for his followers to resist the U.S. occupation. [FN128] Still other possible candidates are Massoud Barzani or Jalil Talabani, competing Kurdish leaders. Yet, it is hard to imagine that the majority Shiites or the Sunnis would accept Kurdish leadership. Further, these two have a history of putting more effort into fighting each other than cooperating in a common enterprise.

8. Bring an End to National-Stage Conflicts

In some cases of international intervention, such as Bosnia, Kosovo and East Timor, the original justification for establishing a political trusteeship was to end internal violence. [FN129] In such cases, success in ending these national conflicts links directly to the raison d'être for the trusteeship and produces internal, as well as international, legitimacy. [FN130] In other cases, such as Iraq, factors other than intra-state violence justified the intervention, but post-intervention internal conflict can easily undermine internal legitimacy. Iraq is a good example of this process at work. There is support for the U.S.-led political trusteeship has eroded in the face of early looting, food and electricity shortages, and in the absence of any demonstrated capacity for self-government by the U.S.-picked Iraqi Governing Council, or its successor Interim Government. Bold constitutional solutions, such as a three-state approach suggested by former President of the Council of Foreign Relations Leslie Gelb, have not been taken up by the Bush Administration. [FN131]

D. Failure to Build Liberal Democracy

Political Trusteeship argues that political trustees achieve their objectives in the long term only if they build liberal democracy by designing institutional structures to manage internal political *181 competition. [FN132] This is accomplished by drawing on unique local experiences, by recruiting and developing appropriate leadership elites, by defining and implementing strategies for economic development and by not letting corruption dominate their agenda. [FN133] Meeting these objectives supports an exit strategy premised on the trustee turning over more and more responsibility for governance to local institutions that are viable politically and economically and which respect democratic and human rights values.

A liberal democracy in Iraq is an explicit goal of the U.S.-led intervention. About a month into the U.S.-led war to remove Saddam Hussein, National Security Advisor Rice identified rule of law and democracy as important goals. [FN134] President Bush, in late 2003, talked of democracy as a goal of the political trusteeship in Iraq, identifying the elements of liberal democracy. [FN135]

The Bush Administration recognizes at some level of abstraction the need to build institutions of liberal democracy, but it has so far grossly overestimated the ease of doing so. The Administration recognizes the need to build political structures for managing internal conflict. It has sought to avoid democratic elections before the mediating institutions of a liberal democracy sprout. It has been *182 deliberate in its effort to identify appropriate local and external elites.

Abandoning a foolish early myth that the occupation army would be uniformly embraced, it came to recognize by late October that intolerance for the occupying forces was high and building. Ultimately, any sound exit strategy needs to result in a turnover of governmental power before legitimacy of the trustee breaks down completely. In other words, the necessity for a coherent and practicable exit strategy, considered in Part II.E, collides with the goal of developing a liberal democracy. [FN136] Working under increasing time pressure, the Bush Administration formulated reasonably coherent concepts for evolving the initial Interim Governing Council into a more effective and more representative Iraqi interim government. [FN137] The goal was to improve representation, while at the same time deferring popular elections until more progress had been made on erecting mediating institutions.

Often the implementation of the prescriptions was flawed and naive, or driven by ideology or cronyism. This should not obscure the reality that many of the basic policy pillars were sound.

1. Design Institutional Structures to Manage Internal Political Competition, Drawing on Unique Local Experiences

Liberal democracy signifies, among other things, the capacity of democratic political institutions to manage inter-group conflict. The challenge is greater when ethnic and religious differences reinforce mere political differences. The test of viable democracy is not only a willingness to compete for political power through established institutions, but also to be willing to lose without organizing a coup or starting a civil war.

The United States feared that Shiite dominance of any popularly elected Iraqi government would suppress Sunni and other minority elements, possibly leading to a rebellion of Sunnis against a new Iraqi government. [FN138] The U.S. sought to reduce this possibility by writing a constitution to protect minority rights before elections were held by transferring significant power to a new local government. [FN139] The plan was abandoned in light of worsening security and growing calls for an *183 early transfer of power. [FN140] The new plan called for the Iraqi Governing Council and local governments to choose a "transitional assembly," comprising several hundred Iraqis representing geographical and social sectors. [FN141] That assembly would have established an "interim government," which would write a constitution in June 2004. [FN142]

The plan unraveled when Grand Ayatollah Ali al-Sistani, a powerful Shiite cleric, insisted on direct elections of representatives to write a constitution. [FN143] The U.S. believed that direct national elections could not be held without voter rolls, which could not be constructed without a census. [FN144] The U.N. had proposed using a food-rations registry to qualify voters, but Saddam Hussein had used the registry to reward his supporters and punish his enemies. At the end of November, the U.S. explored the possibility that a system of provincial and local elections, town meetings and causes of civil leaders might meet the Grand Ayatollah's demands. [FN145] In addition, the Governing Council backed away from its original agreement that it would be dissolved when the transitional assembly was selected, instead remaining to function as a kind of legislative senate. [FN146] Working out a plan was complicated by the perception, expressed both by Shiite members of the Governing Council and by Ahmad Chalabi, that "the whole thing was set up so President Bush could come to the airport in October for a ceremony to congratulate the new Iraqi government," thus supporting his bid for reelection. [FN147]

2. Recruit Leadership Elites from Outside and Inside the Trust Territory

Liberal democracy requires political elites who can provide leadership to competing parties and factions while respecting the norms of democracy and a rule of law. The Bush Administration apparently *184 envisioned, not early democratic elections, but spontaneous "emergence" in Iraq of representative leadership. [FN148]

Any political trustee inherits a reality in which the interaction of political elites has gone awry. Accordingly, one of the essential responsibilities of a political trustee is to vet those aspiring to leadership positions, and to recruit elites for under-represented groups. Early post-war initiatives in Iraq reflected pursuit of both responsibilities. The administrator of the CPA issued an order banning senior Baath Party members from employment with the government or with public institutions. [FN149] Some ministers in the interim government were exiles, who spent years "polishing a plan to de-Baathify Iraq once Saddam Hussein was gone." [FN150]