A New Constitution

In the months leading up to the release of the (apparently) final version of the Iraqi Constitution this past week, most commentators focused on three topics -- women, Islamic law, and Federalism -- as the issues that would cause negotiators the most problems. Not surprisingly, they have been at the center of reports about the heated arguments inside the Green Zone between Shi'i, Kurdish and (far too few) Sunni representatives.

But the problems caused by the often ambiguous wording of the Constitution on these issues obscure a bigger problem caused by what has been left out of the document: any language prohibiting the permanent stationing of foreign troops in Iraq or foreign control of the country's oil resources, and any curtailment of the wholesale privatization program enacted by the CPA during the occupation's first year.

The most gaping hole in the Constitution, the one that virtually guarantees a healthy insurgency for years to come, is the one around Article 108 where there should have been a clause stating that no foreign troops are allowed to maintain long-term or permanent bases on Iraqi soil. Such a clause is the absolute sine qua non for the termination of the Sunni insurgency and the pacification of Muqtada' al-Sadr's unruly forces. Without it, the violence will certainly continue for the foreseeable future.

It's no surprise that the clause is missing, as the U.S. has no plans to withdraw all its troops from the country in the near future. All the arguments back and forth about troop "reductions," "withdrawals" or "draw-downs" have been about just that -- reducing troop levels to a more acceptable (to Americans, that is) number, perhaps 20 or 30 thousand, in half a dozen or more hardened bases whose construction is impossible to ignore for anyone who's been stuck on the country's clogged highways while massive construction convoys pass by.

This dynamic has placed the new Iraqi leadership is in a classic catch-22: It can't survive without a massive U.S. presence and so can't ask the U.S. to leave; yet until it does just that, millions of Iraqis will consider it illegitimate, no matter how democratically it is elected.

Turning to oil and privatization, during the year of official American rule over Iraq, L. Paul Bremer issued half a dozen "orders" that mandated the privatization of state-owned enterprises; allowed 100 percent foreign ownership of businesses except oil, offered foreign firms the same privileges as domestic companies, and allowed unrestricted, tax-free transfers of profits out of the country.

The constitution says nothing about any of these "orders," which likely means that they will remain the law of Iraq for the foreseeable future. In fact, aside from a prohibition on non-Iraqis owning real estate in Article 23, there is no prohibition of foreign ownership of anything, including, it seems, oil.

Article 109 does say that "oil and gas is the property of all the Iraqi people in all the regions and provinces," but it doesn't prohibit them from selling their property, or specify in any manner what role foreign firms will play in its extraction and sale. Indeed, while Article 110 sensibly balances the rights of Kurds and Shi'a living in oil rich provinces with petroleum-poor Sunnis (who received a disproportionate share of oil revenues during the Saddam years), it says nothing about who will control the production and sale of the oil other than saying that the government will "rely on the most modern techniques of market principles and encouraging investment."

This language is a recipe for significant American control over the Iraqi oil industry, even if through the back door. It is strengthened by articles 25 and 26, which state that "the state shall guarantee the reforming of the Iraqi economy according to modern economic bases ... diversifying its sources and encouraging and developing the private sector."