An End to the De-Ba'athification Circus?

Welcome news today out of Baghdad—Iraq’s Higher Judicial Council announced that the electoral disqualifications by the controversial Accountability and Justice Commission (AJC) had been overturned by an appellate panel. While details are sparse, it appears that this legal ruling did not reach evidentiary issues, but rather threw out the decisions based on the lack of due process afforded those caught up in the AJC’s decisions. The silver lining to this entire affair is that an Iraqi legal body appears to have stepped in to stem a political crisis and that its decision is being accorded respect by the contending actors within a highly contentious, chaotic and politicized environment.

There are valid legal arguments to be made as to the legal fitness of the AJC to undertake vetting, but the process has been ad hoc and marked by opacity and lack of clear legal guidelines. Most problematic is the fact that the AJC attempted to game the system by using shaky evidence and timing its announcement for maximum political effect, leaving no possibility for a full and fair appellate process.

Details are still sketchy, but it appears that reinstated candidates will have their de-Ba’athification files reviewed more fully following the elections. Candidates who were stricken from electoral lists and replaced with substitutes prior to this decision, however, will not be reinstated.

In an interesting twist, ‘Ali al-Lami, the head of the Commission (a former U.S. detainee tied to a radical, breakaway Shi’a militia), has attempted to downplay the decision and has declared that while his commission is bound by this ruling, the Iraqi High Electoral commission is not. Although he does not state clearly his basis for this argument, it would appear that al-Lami has come to this conclusion based on the fact that the panel did not review the evidence at hand and his expansive reading of IHEC’s power to make final decisions regarding questions of vetting.

There is also a bit of dissonance from within IHEC with seemingly conflicting quotes from top officials, although this could be an issue of timing. Hamdia al-Husseini, an IHEC official, appeared on state television and announced that the ban had been reversed and that disqualified candidates would now have the opportunity to run. However, the head of IHEC, Faraj al-Haydari, indicated that IHEC’s final decision would only be announced following receipt of the appellate panel’s written decision and legal consultation regarding the decision’s implications for IHEC. At this juncture, though, it would be shocking if IHEC interpreted its authorities so expansively, but it does not appear that they have made a definitive decision yet.

For obvious reasons, Iraq’s fledgling institutions are immature and lack any sort of institutional memory to fall back upon. This has knock-on effects on the political process because there are no real precedents as to how the various branches of government interact with each other and fewer still legal markers governing political behavior. While undoubtedly necessary for constitutional governance, the power of independent judicial review is not always self-evident. The ability of the courts to have the final say in this matter should be encouraging in that the establishment of constitutional benchmarks indicates the possibility for the emergence of the judiciary as a credible, neutral arbiter of intense political disputes. Of course, the downside to this is that within the highly charged political climate, stoked by the incessant and inflammatory anti-Ba’athist rhetoric and propaganda that accompanied the disqualifications, many of the country’s leading parliamentarians were cowed into acquiescing to the AJC’s decisions based upon fear of alienating popular support or desire to capitalize on the issue as an electoral opening. As such, many political actors evinced little regard for the impact of their behavior on the credibility and legitimacy of the Iraqi political process.

Finally, with respect to the role of the United States, I was critical previously of the high-profile nature of Vice President Biden's trip to Baghdad after the vetting crisis had appeared to get out of control. One point that I left unmentioned at the time was how unprepared we appeared to be for the whole mess as it unfolded, necessitating Biden's trip in the first place. While we should not aim to micromanage internal Iraqi affairs, our lack of preparedness is still troubling. As we must move to normalize the U.S.-Iraqi bilateral relationship on a diplomatic basis, our ability to play a constructive and unobtrusive role will depend on a nuanced understanding of Iraqi political dynamics. At the very least, our in-country intelligence gathering at this point should be robust and better attuned to evolving developments on the ground.