Balkinization | Bush Endorses New Constitutional Amendment to Protect Democracy

Because the Federal Marriage Amemdment seems not to have taken off, the Administration is offering this carefully worded substitute, the Protection of Democracy Amendment:

Democracy in the United States shall consist only of the union of one Republican candidate and one Presidency. Neither this constitution or the constitution of any state, nor state or federal law, shall be construed to require that Presidential status or the legal incidents thereof be conferred upon non-Republican persons or groups.

Presidential spokesman Scott McClellan explained that the new amendment will ensure that "the wrong sort of people don't hold power in our freedom loving democracy." When asked to specify who the "wrong sort of people" were, he replied, "I didn't say that."

Go read. Wow...

Tough Shiite

And it's not just the Kurds. As the Post reported on March 2, when Shia members of the Governing Council heard the Kurdish proposal for autonomy, they decided that they wanted the same. As a result, Article 53(C) extends the Kurdistan model to the rest of the country: 'Any group of no more than three governorates outside the Kurdistan region, with the exception of Baghdad and Kirkuk, shall have the right to form regions from amongst themselves.' There is nothing else in the constitution about what powers those super-governorates, sure to be established on ethnic grounds, will possess. But they are implicitly offered the same terms as the Kurds: legitimized internal militias and nullification authority. (Indeed, while militias per se are declared illegal by Article 27, that same provision explicitly allows for regional armed forces 'as provided by federal law.') As a senior coalition official explains, the ability of ethnic blocs to consolidate into regional ministates was intended to 'arrive at a more symmetrical federalism,' in which Iraq's other factions could match the power of the Kurds.

But there's more than one way to create symmetry. Before the war, the Democratic Principles Working Group of the State Department's Future of Iraq Project conceived of an 'administrative federalism' that would have redrawn the boundaries of Iraq's provinces in an effort to diminish the impact of ethnic or religious factionalism. 'The future all-Iraqi federation should not be one of competing nationalities,' the Working Group wrote. 'A federal arrangement ... actively seeks in the drawing up of boundaries a mixture of national[ities], ethnicities and religions in each region, not their separation one from the other.' The provisional constitution's formula is precisely the opposite: It opens the door to competing armed, ethnically based mini-states with the ability to reject federal law when they please. Is this what we went to war to create?

The point about competing, armed federal states is not, in my view, the scariest and most divisive part of the constitution. The scariest prospect is unelected governate authorities getting the right to establish super-governorates. There is absolutely no provision anywhere for the powers or composition of the executives and legislatures of these governorates.

The governorates must, at least, hold elections at the same time as the National Assembly. There is no such rule for super-governorates apart from the Kurdish Regional Government. The gaps in this document, even those to be filled later by the Annex on elections, are staggering evidence of either incompetence or malign neglect.

Fire Fighters for Kerry - On the Campaign Trail

The IAFF approved a resolution March 4 calling on the Bush campaign to withdraw its re-election television ads featuring images of fire fighters from the September 11 terrorism attacks on the World Trade Center.

In a letter to Ken Mehlman, campaign manager for the Bush/Cheney re-election, IAFF General President Harold A. Schaitberger demanded that Bush 'remove the ads from the airwaves immediately, apologize to the families of the victims of 9-11 and never attempt to use this event or images of it for partisan purposes again.'

In his message to Mehlman, Schaitberger maintains that by using these images, the president and his campaign are trying to take a horrible tragedy and use it for political purposes by trading on the heroism of the 343 FDNY brothers who fell in the terrorist attacks, not to mention the 3,000 people who lost their lives at Ground Zero. According the The Washington Post, the commercials use actors to portray fire fighters. 'Bush is calling on the biggest disaster in our country's history, and indeed in the history of the fire service, to win sympathy for his campaign,' said Schaitberger after Bush unveiled the new ads. 'But for two and a half years he has shortchanged fire fighters and the safety of our homeland by not providing fire fighters the resources needed to do the job that America deserves.

His lack of attention to the fire service has resulted in the closing of fire stations across the country. In addition, two-thirds of America's fire departments remain understaffed because he will not support the funding of the SAFER Act, which would put thousands of new fire fighters on the job.

In short, President Bush has made sure that our first responders do not have access to the resources they need to protect this country. Our fire fighters are forced to stand guard over their communities without the proper equipment, fire houses, adequate staffing and training. Americans need and deserve better.

Andjam comments below that no-one outside the blogosphere knows that Harold Schaitberger, president of the International Association of Fire Fighters has endorsed Kerry ofr US president. I was surprised by this claim as their main website links directly to Firefighters for Kerry. I find it hard to imagine no-one could suspect that Firefighters for Kerry endorses John Kerry.

Not half bad, s'pose, even if to Americans it's awesome

It must be tough for visitors from countries whose usage is a little more upbeat. Ask an American 'how are you?' and it's seen as a cue to deliver some advertising copy: 'You know what? I'm terrific. I'm awesome. I'm fantastic.' The person saying this is often slipping in and out of a near-fatal coma, or lying in the gutter having been bankrupted for the 14th time.

This is not a problem for the Yanks. They simply employ the National Linguistic Deflator to the sentence, dividing all positive sentiments by 230 per cent, multiplying all negative notions by the power of 10, thus working out that the person is 'as good as can be expected, considering'.

In Australia it's the opposite. The National Linguistic Inflator must be employed. Consider the following exchange:

'How are you?'

'Not bad. And you?'

'Can't complain.'

As is exceedingly obvious, the first person has just, minutes ago, won the Noble prize for literature for his first experimental novel, while his friend has just made it into Who Weekly's Most Sexy Person Alive double issue, despite his work as a brain surgeon.

Sometimes Richard Glover is a bit less than average, but this time he's actuallu close to the mark.

ALMA AUSENTE

No te conoce el toro ni la higuera,

ni caballos ni hormigas de tu casa.

No te conoce el ni�o ni la tarde

porque te has muerto para siempre.

No te conoce el lomo de la piedra,

ni el raso negro donde te destrozas.

No te conoce tu recuerdo mudo

porque te has muerto para siempre.

El oto�o vendr� con caracolas,

uva de niebla y monjes agrupados,

pero nadie querr� mirar tus ojos

porque te has muerto para siempre.

Porque te has muerto para siempre,

como todos los muertos de la Tierra,

como todos los muertos que se olvidan

en un mont�n de perros apagados.

No te conoce nadie. No. Pero yo te canto.

Yo canto para luego tu perfil y tu gracia.

La madurez insigne de tu conocimiento.

Tu apetencia de muerte y el gusto de tu boca.

La tristeza que tuvo tu valiente alegr�a.

Tardar� mucho tiempo en nacer, si es que nace,

un andaluz tan claro, tan rico de aventura.

Yo canto su elegancia con palabras que gimen

y recuerdo una brisa triste por los olivos.

Federico Garc�a Lorca Translation

It is true we are all Madrile�os,

we are all New Yorkers,

it is true we live in al-Najaf and Baghdad,

it is true we bleed the same red, the same black.

Premature rejoicing in Kirkuk

The outpouring of Kurdish sentiment in a volatile city which is also a stronghold of resistance to the Coalition Provisional Authority is certain to worry the administration in Baghdad.

Far from handing Kirkuk back to the Kurds, the interim constitution leaves the issue unresolved, as is the issue of who should be able to return to reclaim property in the city.

A western official said: 'They are going have a nasty hangover when they wake up in the morning.

'They clearly have not read the new law carefully enough.'

Perhaps most worrying was the belief of many Kurds yesterday that the designation of Kurdistan as a separate federal entity with its own parliament and an effective veto in negotiations for a future permanent constitution represented the first step towards an independent Kurdistan, an aspiration that the leaders of the PUK and the other main party, the Kurdistan Democratic party, have tried to dampen down.

The scale of the celebrations and their nature are certain to be regarded with deep suspicion by the Kurds' Arab neighbours in Iraq and by neighbouring countries, including Turkey.

The actual provision is Article 53:

(A) The Kurdistan Regional Government is recognized as the official government of the territories that were administered by the that government on 19 March 2003 in the governorates of Dohuk, Arbil, Sulaimaniya, Kirkuk, Diyala and Neneveh. The term "Kurdistan Regional Government" shall refer to the Kurdistan National Assembly, the Kurdistan Council of Ministers, and the regional judicial authority in the Kurdistan region.

The city of Kirkuk is not in the KRG's territory because it was in Saddam's hands on 19 March when the coalition invaded. This will be a major problem throughout the transition period. Clearly it would have been better if the TAL had not been made in private without consultation of any kind outside the closed circles of the IGC and the CPA. The Kurds of Kirkuk had not read the law because the CPA and the IGC did not permit them to read it.

Florida on the Tigris

From Transitional Administrative Law

Article 13

Much press comment has parroted the claim that the Law provides for a bill of rights unprecedented in the region.� This is an exaggeration: by the standards of the Arab world, the rights provisions are not particularly extensive.� What is innovative is the number of rights that are absolute, not depending on implementing legislation.� The language here is often quite carefully drafted to close loopholes.

However, some of the rights do operate in accordance with law.� While such language is common in Arab constitutional texts, it is not necessarily problematic if the implementing legislation is itself liberal (indeed, the formula of defining rights in legislation is often followed in Europe).� However, the reliance on implementing legislation in the Iraqi case may raise significant problems.� First, no formula is included insisting that a right cannot be limited in the guise of defining it.� Second, the necessary legislation has not yet been written in most areas (though the CPA has issued a law governing NGOs), meaning that the operative law will date to the Ba'thist era and all that implies.

and

Article 53

The various provisions on federalism are quite complex and it is difficult to predict precisely how they would work.� This is partly the case because the provisions are mutually dependent (and sometimes in tension with each other).� For a trenchant critique of the approach adopted, consult the March 8 entry in Spencer Ackerman�s Iraq�d blog.

and cited by Juan Cole:

"Article 55 . . .may be a key to the evolution of power in Iraq. This article specifies that any group that has taken control of a Governate Council before 1 July 2004 under the CPA can retain control "until free, direct, and full elections, conducted pursuant to the law, are held." There is no indication of when such Governate elections may occur. In particular, these Governate elections are not linked to the National Assembly elections, nor is it clear whether the National Assembly has the power to call Governate elections (since "no member of any region government, governor, member of any governate... may be dismissed by the federal government"). As I read it, the suggestion is that local elections may not be generally required until a final constitution is approved. Article 56 also promises that these Governate councils will get a significant role in administering the country.

So if an aspiring national leader can develop a factional network that has widespread control of Governate councils (established without elections under the CPA), then that leader may be able to control local elections to the National Assembly in these Governates and may dominate the national political process thereafter.

I have doubts about use of supermajorities, the special commissions and about the method of election for the Presidency Council, the National Assembly presidents, and the Prime Minister and I'll address those shortly. The peculiar roles of the Iraqi Property Claims Commission, the Deba'athification Commission and the Commission on Public integrity will be central in the transition phase. More later.

Correction

Contrary to the comment on Article 53 above, Article 57(B) mandates governorate elections 'at the same time as the National Assembly elections'. That does not vitiate the point about governorate authorities until the National Assembly elections can be held.

Link via Juan Cole

Squandering the trauma of September 11

But firefighters and victims' families are critics he cannot debate. And the judgment of public opinion has been a terrible, swift sword. Some 54% said his use of 9/11 imagery was inappropriate, and only 42% - his base - said it was appropriate, according to the Washington Post-ABC News poll. Worse, Kerry has plunged ahead. Even worse, 57% want a 'new direction'.

The rejection of the central element of Bush's version of his story is an unexpected shock to him and the Republicans. 'I am amazed they have been thrown on the defensive,' James Pinkerton told me. Pinkerton was research director for George Bush senior's 1988 campaign and responsible for developing the attack lines against the Democratic opponent. 'They weren't ready for any of it,' he says of this Bush campaign. 'They just assume it's all pro-them on 9/11. It didn't dawn on them it cuts different ways. If they aren't ready for this, what are they ready for?'

The trauma of September 11 has been squandered as a political factor. Just as Bush has misspent the goodwill of the world, he has wasted his opportunity to create any consensus at home. He had planned to run his campaign on the Bismarckian formula of the primacy of foreign policy and Kulturkampf. But his trifecta has been turned upside down: David Kay's confession that 'we were all wrong' on WMD in Iraq; job stagnation; increased recriminations about 9/11 as the commission begins its work in earnest. Bush, moreover, is patently using 9/11 not for 'changing times' but to advance his reactionary social agenda. Rather than appearing 'steady', he is setting himself against change, including changing his own policies. What he has left is a negative campaign. If he cannot elevate himself on the presidential pedestal he must throw himself into the abattoir of the culture war.

I expected the 911 ads, despite Bush's promise not to use it in his campaign, but I am astonished they have failed so completely. The interesting question now is whether Bush's invocation of 911 leaves him open to question on what precisely he did on that day as commander-in-chief. Other than get himself far out of harm's way.

Drug costs will rise with deal: US official

Under intense pressure on rising drug costs at home, an influential Republican senator told the committee that the Australian deal was a "breakthrough" that began the process of getting other countries to bear a greater share of drug company research and development costs.

"One of the ways of addressing the causes [of high US prices] is to get the other countries of the world to help bear part of the burden of the R&D," said Senator Jon Kyl, who lobbied Australian ministers on the Pharmaceutical Benefits Scheme last year. "So, my hat's off to your [Mr Zoellick's] team and the work that you did in at least beginning to address this with Australia."

Senator Kyl said the final agreement, released last week, was only the beginning of negotiations over Australia's pharmaceuticals system.

"We don't need to discuss it here, but I know that there is much more work that needs to be done in further discussions with the Australians."

Strangely I missed the government's announcement of the further negotiations on raising drug prices in Australia.

Chilling end to global warming forecast

While NASA said many scientists were sceptical, it quoted Dr Robert Gagosian, director of the private Woods Hole Oceanographic Institution, Massachusetts, as saying such a change in ocean currents could happen within 20 years.

Yesterday Dr Matear explained that if global warming continued melting Arctic ice and increasing evaporation, boosting rainfall in the North Atlantic, 'the North Atlantic could be flooded with fresh water. The flood of fresh water reduces the density of the surface and prevents the water from sinking deep into ocean,' he said, adding that the vertical sinking of sea water helped drive ocean circulation.

Officially called the thermo-haline circulation, the pattern is sometimes dubbed the Great Conveyer Belt.

Dr Matear said the decline in oxygen levels in deep water of the Southern Ocean was exactly what computer modelling suggested would be seen if global warming slowed this circulation, reducing the cold water flowing south of Australia. 'Cold water is high in oxygen,' he said.

Dr Matear said although it was too early to say what impact a shutdown of ocean currents would have on Australian temperatures, he agreed Europe could be sent into a severe chill.

'A decline of five degrees by end of this century . . . that wouldn't be unrealistic.'

Dr Matear said a decline in oxygen levels would be particularly serious for sea life in the tropics, where the warmer water is already oxygen-poor.

I'm not sure who the Herald gets to subedit this stuff but 'Ocean Conveyor' is a much more common term for the thermohaline circualtion than 'Great Conveyor Belt'. It's bad news because the abrupt climate change model predicted certain behaviours in Antarctic waters, behaviours that have now been detected. Abrupt climate change within 20 years is a terrifying prospect.

A Nuclear 9/11

It's mystifying that the administration hasn't leaned on Pakistan to make Dr. Khan available for interrogation to ensure that his network is entirely closed. Several experts on Pakistan told me they believe that the administration has been so restrained because its top priority isn't combating nuclear proliferation - it's getting President Pervez Musharraf's help in arresting Osama bin Laden before the November election.

Another puzzle is why an administration that spends hundreds of billions of dollars in Iraq doesn't try harder to secure uranium and plutonium in Russia and elsewhere. The bipartisan program to secure weapons of mass destruction is starved for funds - but Mr. Bush is proposing a $41 million cut in 'cooperative threat reduction' with Russia.

'We're at this crucial point,' warns Joseph Cirincione of the Carnegie Endowment for International Peace. 'And how we handle these situations in the next couple of years will tell us whether the nuclear threat shrinks or explodes. Perhaps literally.'

The steps that are needed, like negotiating seriously with North Korea and securing sites in Russia, aren't as dramatic as bombing Baghdad. But unless we act more aggressively, we will get a wake-up call from a nuclear explosion or, more likely, a 'dirty bomb' that uses radioactive materials routinely lying around hospitals and factories. To clarify the stakes, here's a scenario from the Federation of American Scientists for a modest terrorist incident:

A stick of cobalt, an inch thick and a foot long, is taken from among hundreds of such sticks at a food irradiation plant. It is blown up with just 10 pounds of explosives in a 'dirty bomb' at the lower tip of Manhattan, with a one-mile-per-hour breeze blowing. Some 1,000 square kilometers in three states is contaminated, and some areas of New York City become uninhabitable for decades.

Let us hope this does not happen. Let us hope also (if such a disaster happens) that we do not have to listen to more speeches about what no-one could have imagined.

Ex-President in Mexico Casts New Light on Rigged 1988 Election

On election night 1988, Mr. de la Madrid said, the secretary of the interior advised him that the initial results were running heavily against the PRI. The public demanded returns, Mr. de la Madrid wrote. And rather than giving them, the government lied and said the computer system tabulating the votes had crashed.

This was the advice to Mr. de la Madrid from the president of the PRI: 'You have to proclaim the triumph of the PRI. It is a tradition that we cannot break without causing great alarm among the citizens.'

As midnight approached, Mr. de la Madrid learned that the leading opposition candidates were preparing to add more confusion to the outcome of the election by each declaring himself the winner. The PRI, he decided, had to pre-empt them, and without any official vote count, the president of the PRI declared his party the winner. A beleaguered Mr. Salinas did not show his face until the next day.

'The electoral upset was a political earthquake for us,' Mr. de la Madrid wrote. 'As in any emergency, we had to act because the problems were rising fast. There was not a moment for great meditation, we needed agility in our response to consolidate the triumph of the PRI.'

Three years later, in an alliance between the PRI and the conservative National Action Party, the Mexican Congress ordered the ballots of the 1988 election burned, and the only hard evidence of the fraud committed that July night went up in smoke.

The Partido Revolucionario Institucional (the name sounds as strange in Spanish as in English) held power from 1929 until 2000. It continues to control a majority of Mexico's states and is a significant presence in the Mexican federal congress. 1988 was important. Salinas held the presidency until 1992 and launched Salinastroika, a policy of slow political reform and fast economic reform. Part of that was a remarkably elegant strategy of losing enough state governorships to the opposition to give a democratic face to the PRI's dominance, but restricting the opposition's gains to the rightwing PAN instead of the leftwing PRD. After his retirement it was learned he had also engaged in a program of vast enrichment for himself, relatives and cronies and may have ordered the assassination of his own successor as PRI leader. Salinas was the smiling face of the Washington Consensus in Latin America, at one stage he was a serious candidate for WTO director-general.

The legitimate president, Cuauhtemoc Cardenas (named after his father, who nationalised Mexico's oil in 1938 and the last Aztec emperor) would have followed radically different policies, would have most likely opposed NAFTA, and perhaps looked a lot like Brazil's Luiz In�cio Lula da Silva but a decade earlier. When the PRI finally lost power in 2000 it was to PAN, not C�rdenas' PRD.

Naturally those who alleged the 1988 election was stolen were all denounced as conspiracy theorists by Mexico's Priista oligarchs.

ScotsteXt Haiku

Wi thon aiples keeks,

Thonder butterflee's nae glaur,

Lang flouers gaes the sauchs.

Purely in the interest of defending diversity from a certain blogpal of mine.

No magic pill, but it's a clever political fix

The package does not merely address the narrow issue of the decline in bulk-billing rates by GPs, it revolutionises the scope of Medicare by making it more relevant to Australians beset by a range of lifestyle health problems not easily solved by traditional general practice.

It will now cover services provided by dieticians, mental health workers, occupational therapists, podiatrists, osteopaths, chiropractors, nurses and psychologists. Meg Lees says this will keep Australians healthier and save money because preventive strategies will be used rather than costlier medical intervention.

On the other hand, it may bump up health costs because many of these services are already in demand.

Health policy has now become a big point of difference between the Coalition and Labor as both sides prepare for the election.

The Coalition is offering a two-tier Medicare system with generous subsidies and a far greater range of services offered to those in need costing $1 billion more than Labor's, which offers a universally available Medicare system with incentives to improve bulk-billing as well as a government-funded dental scheme.

Labor enjoyed a 24-point advantage over the Coalition as the party best able to handle health policy, a Herald poll conducted by ACNielsen found two weeks ago. Tony Abbott has his work cut out for him as he tries to shrink this lead, but he has made a spirited start.

This package is not all bad. Ultimately, the lasting element will be the expansion of Medicare to allied services. The top-up payment is neither here nor there and will have little impact on bulk billing. The Senate committee reported last October that the bulk billing initiative was trying to solve a problem (concession card holder access to bulk billing) that does not exist while avoiding a problem (universal access to bulk billing) that does. The new Abbot package continues that approach.

The bulk billing problem will be resolved only by raising the common fee to 1996 levels. I believe that will happen, and if the government's slide in the polls is not arrested, it will happen under a Labor government. The Coalition really does not want to explain to its middle class voters why they do not get the new benefits available to concession card holders.

Meanwhile, shifting the health focus from traditional medicine to preventive strategies like enabling some access to allied health care is a significant reform. I suspect the cost will be fairly dramatic once, for example, dental fees start kicking the safety net along.

RSSifying Southerly Buster

I've changed my RSS feed to
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A Turd Blossom By Any Other Name

The Guardian's Julian Borger notices that Karl Rove lately has been living up to only one of the two nicknames bestowed on him by his boss:

Bush's other nickname for the Boy Genius is 'Turd Blossom' - a Texanism for a flower that blooms from cattle excrement. This year, there should be ample opportunity for him to earn the title.

The foreign minister must look into this urgently. The nation's ancient lock on pungent rhetoric is under the gravest threat. Next the President of the United States will complain about being savaged by a dead sheep.

We the people

The Transitional Administrative Law begins with an untruth. The people of Iraq were involved with drawing up this constitution only in the persons of the 25 IGC members. There are excellent reasons for wide popular participation in constitution-making. They have been ignored in the drafting of this law. The less popular participation there is, the less legitimacy any constitution can enjoy, in Iraq or elsewhere.

The impressive system of institutions and rights is all subject to one very large exception:

Article 59 provides:

(B) Consistent with Iraq's status as a sovereign state, and with its desire to join other nations in helping to maintain peace and security and fight terrorism during the transitional period, the Iraqi Armed Forces will be a principal partner in the multi-national force operating in Iraq under unified command pursuant to the provisions of United Nations Security Council Resolution 1511 (2003) and any subsequent relevant resolutions. This arrangement shall last until the ratification of a permanent constitution and the election of a new government pursuant to that new constitution.

(C) Upon its assumption of authority, and consistent with Iraq's status as a sovereign state, the elected Iraqi Transitional Government shall have the authority to conclude binding international agreements regarding the activities of the multi-national force operating in Iraq under unified command pursuant to the terms of United Nations Security Council Resolution 1511 (2003), and any subsequent relevant United Nations Security Council resolutions. Nothing in this Law shall affect rights and obligations under these agreements, or under United Nations Security Council Resolution 1511 (2003), and any subsequent relevant United Nations Security Council resolutions, which will govern the multi-national force's activities pending the entry into force of these agreements.

Article 59 continues the powers of the military occupation, really the rest of the instrument then becomes a system of camouflage for the continuing occupation. Article 59 means the Iraqi armed forces must take orders from the unified command - the US and not the Iraqi Transitional Government. That is less than sovereignty and less than legitimacy. It is a law that binds the future elected government on the authority of the unelected Iraqi Governing Council. That has been already been denounced in the Sistani fatwa and there are serious questions of whether any future elected government will regard them as binding.

The TAL does not provide for how the Iraqi Transitional Government is to be established. Chapters 1 and 2 set out fundamental principles and a bill of rights. Chapter 3 provides for a transitional legislative authority, but it its election is to be no later than 31 January 2005. There is no provision for a legislative body in the interim between the commencement of the constitution and the election, although that may be covered by the Annex required by Article 2(1) which provides:

The first phase shall begin with the formation of a fully sovereign Iraqi Interim Government that takes power on 30 June 2004. This government shall be constituted in accordance with a process of extensive deliberations and consultations with cross-sections of the Iraqi people conducted by the Governing Council and the Coalition Provisional Authority and possibly in consultation with the United Nations. This government shall exercise authority in accordance with this Law, including the fundamental principles and rights specified herein, and with an annex that shall be agreed upon and issued before the beginning of the transitional period and that shall be an integral part of this Law

Article 29 provides that the Governing Council's work is to end on the assumption of full authority by the Iraqi Transitional Government under the Annex yet to be written. presumably the Annex will also create some kind of interim legislature to substitute for the National Assembly until it is elected. The Annex (my guess is that it will look a lot like the Bonn Agreement brokered by the UN for Afghanistan) is all-important. Until we know what is in the Annex it is hard to envisage what the final shape of the ITG will be and if it can move Iraq successfully towards a democratic, stable and liberal society.

The debates on the TAL were not public. No draft was ever published in advance for public comment. There was no system of public education and consultation. The use of terms characteristic of common law terms like 'eminent domain' in Article 16(B), 'crime involving moral turpitude' in 31(6) confirm that the CPA, admitted or not, was a major player in the constitution-making process. 'Eminent domain' and 'moral turpitude' owe their meanings to a mountain of common law precedent. Whether Iraqis are going to receive that into their legal system remains to be seen. The use of terms of art from the common law in a nation without a common law tradition is probably unwise.

Today's Washington Post confirms the closed nature of the process. In Interviews, Iraqis Profess Ignorance About Law's Details:

In several interviews in Karrada, a crowded commercial district in the Iraqi capital, the dominant theme was ignorance of the interim constitution's basic features, even among those who said they watch and read the news regularly. Those who were familiar with the outline of the new law said they doubted it would produce political stability and democracy after the U.S. civil occupation officially ends on June 30.

Most Iraqis interviewed could not name any of the constitution's 63 articles and did not know that they included a bill of rights or provided for a federalist and republican form of government.

'We must read it first, before we know what to think about it,' said Ahmed Hassan, 35, who runs a small perfume shop.

Hassan said the local news media have provided little information about the constitution. His wife, Khadijah Radhi, 30, agreed. 'It wasn't on television or in the paper,' she said. 'Until now, we didn't know what were the points of disagreement.'

Occupation officials said they hoped to build support for the constitution through outreach. 'There will be an elaborate public information campaign to begin talking about the document in even greater detail,' a senior U.S. official said Monday.

Read the TAL's Preamble (boldface mine):

The people of Iraq, striving to reclaim their freedom, which was usurped by the previous tyrannical regime, rejecting violence and coercion in all their forms, and particularly when used as instruments of governance, have determined that they shall hereafter remain a free people governed under the rule of law.

These people, affirming today their respect for international law, especially having been amongst the founders of the United Nations, working to reclaim their legitimate place among nations, have endeavoured at the same time to preserve the unity of their homeland in a spirit of fraternity and solidarity in order to draw the features of the future new Iraq, and to establish the mechanisms aiming, amongst other aims, to erase the effects of racist and sectarian policies and practices.

This Law is now established to govern the affairs of Iraq during the transitional period until a duly elected government, operating under a permanent and legitimate constitution achieving full democracy, shall come into being.

The preamble is untrue. The IGC, not the Iraqi people have made this law and their authority comes only from the CPA.

This is not the most liberal constitution in the Middle East. Jordan's constitution is, on its face, a liberal instrument of government. Chapter 2 provides for a bill of rights and Chapter 3 mandates the separation of powers. The document does not make Jordan a liberal democracy. The Egyptian constitution also catalogues rights in Part 3. For example Article 40 guarantees:

All citizens are equal before the law. They have equal public rights and duties without discrimination due to sex, ethnic origin, language, religion or creed.

Egypt's Article 42 provides:

Any citizen arrested, detained or whose freedom is restricted shall be treated in a manner concomitant with the preservation of his dignity. No physical or moral harm is to be inflicted upon him. He may not be detained or imprisoned except in places defined by laws organizing prisons. If a confession is proved to have been made by a person under any of the aforementioned forms of duress or coercion, it shall be considered invalid and futile .

Google 'Egypt' and 'torture'. The results give little comfort to the idea that a constitution, in and of itself, can create a liberal society. Equally the TAL's Article 59 seems to authorise the multinational force to operate outside the ambit of the new Iraqi charter of rights.

The Consultative Committee on an ACT Bill of Rights reported:

2.88 The Consultative Committee acknowledges that the existence of a bill of rights alone would be insufficient to bring about a significant change in the ACT?s culture of respect and observance of rights. As Professor Tom Campbell noted, having a bill of rights is no guarantee that it will be observed.92 Such change would require political will at the highest level. It would mean devoting resources to educating those who administer government programs, from the agency chiefs right through to the newest recruits. It would mean making education a formal, permanent part of each agency's corporate plan. In essence, it would mean building a public sector where a 'rights-respecting culture' would imbue decision-making at every level. While a bill of rights cannot of itself create a human rights culture, it is clear that without such a document a consciousness of rights will never routinely inform the processes of government.

These weaknesses go back to the way that the TAL was drafted and enacted. The constitution-making authority of the IGC is entirely derived from the CPA. Even consultations with civil society were minimal while the entire process was conducted behind closed doors. The attempt to create a liberal society with or without popular consent is contradictory and the TAL does little to advance that project.

The trouble with the US enterprise in Iraq is that if, at any stage, there is a clash of interest between US and Iraqi interests the occupation will naturally uphold US interests. That is unlikely to change under the TAL which authorises and continues the occupation. The Iraqi Transitional Government will be entirely dependent on the occupation for legitimacy and military support. The TAL prescribes that. How then is the ITG really going to be any different from the feeble string of Saigon governments that existed during the Vietnam War?

Last November the International Crisis Group said:

In an ideal world, a broadly interactive process would unfold in which elected representatives actively engaged in civic education concerning issues germane to the drafting of a constitution and invited public debate on its most controversial elements. The situation in Iraq today, as all recognise, is not ideal. Rather than signalling that certain allowances ought, therefore, to be made and a flawed process accepted, however, additional time should be found to permit a solid process to run its natural course. The notion of establishing a more legitimate transitional government responds to that requirement. A critical third element is transparency and public participation. The experience in Iraq so far teaches that lack of openness on the part of the CPA gives rise to damaging rumours, which in turn trigger actions (such as the Sistani fatwa) that, whatever their merits, run counter to professed U.S. objectives. It also compounds alienation and feelings of disenfranchisement among Iraqis and therefore fuels opposition. The sense that Iraqis have no ownership of the political process and are blocked from participation in decisions critical to the future of their country is profound. The work of the CPC, while conducted in relative openness as it visited the governorates in August and September, resulted in a confidential report on an issue that is so important it calls out for public debate. This approach augurs poorly for all the steps that must still be taken in the constitutional process, and must be reversed if the Iraqi public is to gain a sense of ownership over the final product.

In all this, a much greater role must be given to the United Nations, which should play a critical part in overseeing the political transition process, providing Iraqis with the technical expertise they require for the drafting of the constitution and the organisation of voter registration, elections (including the gathering of absentee ballots), a nationwide census and a popular referendum. The UN?s impartiality would do much to mitigate the prevailing impression that the U.S. is engineering the drafting of a constitution to further its own interests, and its experience in other transitional societies is certain to enhance the constitutional process in these difficult times. Baghdad/Brussels, 13 November 2003 135 That said, some Iraqis did note that the UN has perception problems to overcome, especially with regard to corruption charges and the problem of bureaucratic inertia to which Iraqis became acquainted during the sanctions decade. ICG interviews in Baghdad.

Obviously, the adoption of the TAL is a significant victory for the US, and arguably their first political victory since the collapse of the Saddam regime. Whether its short-term advantages outweigh the long-term risks remains to be seen. I have a few thoughts on the actual structure of government under the TAL and I'll post those in the next few days.

Bush hounds Kerry over free trade

Mr Bush's attack on Mr Kerry came during a Commerce Department awards ceremony in Arlington.

'As our economy moves forward and new jobs are added, some are questioning whether American companies and American workers are up to the challenge of foreign competition,' he said.

'There are economic isolationists in our country who believe we should separate ourselves from the rest of the world by raising up barriers and closing off markets. They're wrong.'

Except on Australian sugar, beef, dairy, 33 horticultural products subject to snapback measures, PBS drugs, Canadian drugs, Central American sugar, European and Chinese steel and anything else competing with anything produced in a state Bush might carry in November.

Upadate

My eager commenters and a little research have added:

• Pakistani textiles
  
• Canadian lumber
  
• Brazilian sugar
  
• Brazilian steel
  
• Brazilian orange juice
  
• Chinese bras
  

Sistani fatwa

In the name of the Most Exalted

Grand Ayatollah Sistani has already clarified his observations on the agreement of November/15th (and maintains) that any law prepared for the transitional period will not gain legitimacy except after it is endorsed by an elected national assembly. Additionally, this law places obstacles in the path of reaching a permanent constitution for the country that maintains its unity and the rights of its sons of all ethnicities and sects.

16th Muharram al-Haraam 1425

I'm collecting my thoughts on the Temporary Administrative Law. More later.

Link via Juan Cole

Election-year politics pose a high hurdle for trade agreements

Australia could be an easier sell because it is just one country and has labor and income standards similar to the United States. Manufactured goods account for 93 percent of U.S. exports to Australia, and the pact would immediately end duties on almost all those goods.

But even it is controversial. Free traders chafe at the success of the U.S. sugar industry in winning exemptions from quota and tariff reductions. The Motion Picture Association of America is unhappy with language giving Australia the right to restrict American-filmed entertainment on Australian airways.

No congressional action on trade this year could cause a future logjam as other negotiations are completed. Negotiations are proceeding, if slowly, on a free trade zone for the entire Western Hemisphere outside Cuba, and other potential partners include Thailand and Bahrain.

If the US media don't think the FTA will pass ratification in the US congress, what effect would that failure have on our election? Incidentally I was talking with an old friend this afternoon who speculated that if Bush continues to decline in the polls the Man of Steel will probably go to the country before the US election. That would most likely place the election date between 6 August (when the double dissolution triggers expire) and 2 November when the US votes.

Iraqis learn red tape, the Indian way

Quietly, though, as opposed to sending troops, India has chosen the less glamorous task of training Iraqi bureaucrats, at the request of the US.

The first batch of 14 senior officials from Iraq arrived in India recently and are being trained at the prestigious Lal Bahadur Shastri Institute, which turns out India's vaunted and feared civil servants - officers of the Indian Administrative Services - at the Himalayan hill station of Mussourie, 340 kilometers from the capital Delhi. The Iraqis will be schooled in how to function in a democratic society, and will go through various orientation programs at most ministries, especially foreign, finance and commerce.

India has a world-wide reputation for its 9 million-strong central and state government bureaucracy, the foundations of which were honed during British rule, although it also has a reputation for excessive red tape, and being prone to corruption.

J N Dikshit, a retired foreign secretary, says that the Iraqi officers will not only receive training in administration, but in diplomacy as well. A senior officer from the Iraqi group, who requested not to be named, commented that there is a feeling among many officials in Iraq that the US-led war was precipitated in part by Iraq's diplomatic failures. He says that perhaps the war and the consequent miseries of the Iraqis could have been avoided with mature diplomacy, rather than saber rattling.

This is a hopeful, if small, sign that things in Iraq will improve over the next few months. It seems to me that getting the nuts-and-bolts right is as important as the large and sexy issues like the new Temporary Administrative Law or dealing with the underlying security problem.

Medicare extended to dental care

Medicare would cover patients with serious dental problems they cannot afford to have treated, under a surprise expansion that is set to be announced by the Federal Government.

It would be a key part of an unprecedented extension of Medicare coverage embracing other non-medical services including physiotherapy and podiatry, along with other measures to reduce patients' out-of-pocket costs when visiting the doctor.

After week-long negotiations, the Health Minister, Tony Abbott, last night was finalising details of the $400 million addition to his $2.4 billion Medicare Plus package with the four independent senators, in a desperate bid to secure the Medicare safety net legislation in the Senate this week.

This is is an excellent idea, but the best idea of all would be to raise the scheduled fee to a level where bulk billing increased instead of continuing to fall. The parliamentary library has a table that fairly clearly shows that the bulk billing crisis began when Howard was elected and is a result of his failure to maintain the scheduled fee at a rate that encourages bulk billing.

Update

The government has now firmly disavowed this reported plan.

Prime Minister John Howard today ruled out adopting a Labor plan to spend $300 million over four years on dental care, by responding to Opposition leader Mark Latham's request in parliament to do so with just one word: "No."

In an effort to win Senate support for its proposed Medicare Plus package, the government was reported to be considering extending the package to cover some dental, psychology and podiatry services.

Opposition Leader Mark Latham asked Mr Howard in parliament if he now accepted that dental care was the constitutional responsibility of the federal government.

"Will the government now adopt Labor's national dental program with an extra 1.3 million dental treatments, eliminating the existing backlog of 500,000 Australians, and substantially reducing waiting lists for the future?", Mr Latham asked.

"Mr Speaker, no," Mr Howard replied.

ALP rides Latham to poll lead

It is the first time in Newspoll history that an Opposition leader has got more than 60 per cent support.

Even on the question of who would make the better prime minister, Mr Latham has broken Mr Howard's three-year stranglehold and is within lethal striking distance on 39 per cent, up seven points, compared with Mr Howard's 44 per cent, down four.

Labor's primary vote is now the highest it has been since the middle of 2001, totally eclipsing Kim Beazley's last six months of leadership and Simon Crean's entire term as leader of the Opposition.

...In the final Newspoll survey under Mr Crean, Labor was trailing the Coalition by six points, but now leads by three on the key primary vote.

Despite the Prime Minister's declaration to his Coalition colleagues last week that "politics is back to normal", Mr Latham's honeymoon has continued as leadership bickering has broken out within the Coalition.

If you turn to Newspoll's own site you'll find their simultaneous poll on issues and that has almost as much bad news for the coalition government. The issues on which the Coalition now leads Labor are:

• taxation by 7%
  
• immigration by 9%
  
• defence by 23%
  
• interest rates by 26%
  
• inflation by 28%
  

I would love to know what a strong campaign on the security issues might do to the government's remaining issue leads. While Howard may see them as a strength I suspect they're a soft area because there have to be a lot of voters there with a long record of voting for the ALP.

I wonder if Latham is thinking about doing something to call those people home?

A 'Shocking' Stumble

Another less-publicized aspect of the ad flap: the use of paid actors - including two playing firefighters with fire hats and uniforms in what looks like a fire station. 'Where the hell did they get those guys?' cracked Harold Schaitberger, president of the International Association of Fire Fighters, which has endorsed John Kerry, when he first saw the ads. (A union spokesman said the shots prompted jokes that the fire hats looked like the plastic hats 'from a birthday party.') 'There's many reasons not to use real firemen,' retorted one Bush media adviser. 'Mainly, its cheaper and quicker.'

I am not going to say anything linking fake firefighters with fake turkeys. Promise.

The detail of the FTA is teeming with devils

My assessment on the basis of the Howard Government's summary of the FTA four weeks ago was that this was a worthwhile agreement for Australia. My initial assessment of the actual agreement suggests it offers slightly less than was expected and costs us more.

There are gains, particularly for manufacturers and for lamb and wool producers. However, we pay for these, especially in giving up much of our ability to regulate our media.

In addition, these bilateral agreements are bought at the price of our credibility in the World Trade Organisation. This is a real price because the biggest potential gains, by far, are in that forum.

The Cairns Group of agricultural exporters pushes for freer agricultural trade in the WTO. In a speech last Monday Trade Minister Mark Vaile said: 'Australia is working hard to re-energise the (WTO) round. I have just returned from a Cairns Group meeting... We sent a strong message to the US, the EU and Japan on the need for them to show leadership as the major subsidisers of agriculture.'

How 'strong' can our message be when we have agreed to an FTA that leaves America's grossly unfair agricultural practices in place? Moral authority is a source of power. Right now, Australia railing against agricultural protectionism is about as credible as the National Rugby League railing against the abuse of women.

One has to suspect that John Howard entered these FTA negotiations with the US expecting special treatment. But the fine print reveals there are no mates' rates in this deal, none at all.

One also has to suspect that the parliamentary claims that trade experts advised the government to abandon the FTA may well be true. But the Man of Steel badly needs two vast and trunkless legs of stone to call his own.

Howard attacks ACT gay adoption law

Mr Howard said he had examined the ACT laws and said he opposed any bill of rights, as it could lead to limits on individual freedoms.

'I think the idea of the ACT having a bill of rights is ridiculous. If you're going to have things like that, they should be done on a nationwide basis,' he told the John Laws radio program.

'This is political correctness inside the Labor Party parading itself for all the world to see.'

He said he did not support gay adoptions.

'I don't support gay adoption, no,' Mr Howard said.

'I'm against gay adoption, just as I'm against gay marriage.

'I think there are certain benchmark institutions and arrangements in our society that you don't muck around with.

'Children ideally should be brought up by a mother and a father who are married. That's the ideal.'

This strikes me as more of the tin ear the Man of Steel's developed recently. Unlike the US we do not have a large religious right devoted to these sorts of issues and I'm not sure what the prime minister is trying to achieve. The government cannot pass an bill to override the ACT legislation without the support of the minor parties and independents in the Senate. Labor and the Greens have already said they'll oppose an overriding bill. The Democrats are unlikely to be far behind. The prospect of an override is zip and if the government goes ahead they'll set up another Latham beats Howard scenario.

Howard leads Australia's federalist party. The concept that only national legislation can or should provide for human rights sits fairly strangely with his lifelong commitment to federalism. Further, he's simply wrong. Each US state has its own bill of rights. Several Canadian provinces have provincial charters to complement the Canadian Charter of Rights and Freedoms.

The Man of Steel really needs a new argument. I'm not sure his endless repetition of political correctness as the catchall critique is doing a lot for his political standing. Certainly this speech did little to show him as an original thinker or even an especially well-informed one.

Brazil: The new breadbasket

The alarm is being sounded not only by farmers, but by economists and policymakers who recognize the importance of the U.S. farm economy to the nation as a whole.

Low prices at the farm gate mean higher taxpayer subsidies from Washington, D.C.

While rising world food production also means lower consumer prices in the supermarket, the shadow of Brazilian competition is just beginning to be felt in rural America, particularly Minnesota, the nation's seventh-largest exporter of farm goods.

As Brazil gobbles up more of the global export market, some worry that it could become to farming what China is becoming to low-cost manufacturing, and what India is becoming to offshore information technology.

'Brazil is the 800-pound gorilla of farming,' said U.S. Sen. Norm Coleman, who has joined a procession of Minnesota officials to Brazil in recent months. 'From the perspective of agriculture, they're the competition.'

I'd ask for bets that the US will shift the terms of trade against Brazilian farming (as they have against Australian farming) as soon as they identify the threat. US expenditure on agricultural subsidies (untouched by the free trade agreement) now stands at US$180 billion.

Free trade seems to apply only to rich country exports.

Costello dodges leadership questions

BARRIE CASSIDY: We have had three sitting weeks of the Parliament, how would you describe the mood in the Liberal Party at the moment?

PAUL KELLY: I think the Liberal Party is unsettled, it's edgy, it's nervous, it's concerned about Mark Latham. I think Latham is the reason why the party is so unsettled. The Liberals keep asking when Mark Latham's honeymoon will end and I think that's the wrong question. We are now in a new political environment. We won't be going back to the politics of last year or the year before. They're gone. I think that as far as the Liberals are concerned, one of their main problems is that they are having trouble coming to grips with the Latham leadership. I think there are far too many nervous Nellies inside the party and of course just below the surface we have the leadership issue bubbling along.

BARRIE CASSIDY: Yes, when you say just below the surface, will it rise to the surface?

PAUL KELLY: Well, the leadership issue is there. It's a factor in politics, but the question is the extent to which it comes to the fore. Peter Costello believes that John Howard should have resigned the prime ministership last year in his favour and you've just seen his formula on the leadership - he won't rule out the possibility of a leadership challenge. Now this didn't make all that much difference last year when the Government was well and truly ahead of the Labor Party in the polls. But if we get a change in this situation, if in fact we get a situation in which Labor starts to move ahead of the Government on a fairly consistent basis, then I think this Costello formula will become very destabilising for the Government. So the Government and the Liberal Party are under now, I think, the most important pressure they have been for quite a few years. And if in fact the leadership does become an issue, this will undermine the Government and undermine John Howard because at this stage there is no real suggestion that there will be a change of leadership before the election.

I'm told Tuesday's poll is going to be fairly dramatic. A leader sitting on fading figures is a leader who has to look over his shoulder. And a backbench considering which of them will go at election time is not a backbench about to die in a ditch for that leader.

I'll go out on a limb and say we should see a leadership challenge fairly close to the delivery of the budget in May. Costello no longer has a choice.

War chief reveals legal crisis

[UK Chief of Defence Staff, Admiral] Boyce said he fully supported the ousting of Saddam Hussein and did not believe a second UN resolution was necessary. He still believed weapons of mass destruction in Iraq might have been 'squirrelled away or destroyed at the last moment'.

He said: 'The justification in my own mind was that I was convinced that Saddam had chemical and biological weapons. I knew he used them in the past and I believed he was capable of using them in the future. Given what happened since 9/11 it was even more likely.'

Yet he was concerned that, without the legal cover from Goldsmith, military personnel could be prosecuted for war crimes. Boyce hinted that if Goldsmith had not provided him with this, he might have resigned, which would have precipitated a major political and military crisis, with 60,000 British troops stationed in Kuwait prepared for war.

Boyce admitted the 'personal' difficulty he would have faced if such 'unequivocal' reassurance had not been forthcoming: 'It would have to be for people around me, the Prime Minister, the Secretary of State [for Defence] to know what sort of person I was and draw their own conclusion about what I might have done if I didn't get what I wanted... I'm not prepared to say what that was because this is extremely personal.'

Asked if this meant he might have resigned, he said: 'I really am not prepared to say ... All I would say is that it was an important milestone.'

A summary of the UK legal advice is online. It's most important grafs read:

7. It is plain that Iraq has failed so to comply and therefore Iraq was at the time of resolution 1441 and continues to be in material breach.

8. Thus, the authority to use force under resolution 678 has revived and so continues today.

9. Resolution 1441 would in terms have provided that a further decision of the Security Council to sanction force was required if that had been intended. Thus, all that resolution 1441 requires is reporting to and discussion by the Security Council of Iraq's failures, but not an express further decision to authorise force.

What Lord Goldsmith does not address is why that revived authority should rest in 2 permanent members of the Security Council acting without any authority from the UN.

Hans Blix has addessed that point in his recent interview:

The former weapons inspector, an international lawyer by training, said he did not believe that resolutions passed by the entire security council would give Washington and London, two of its permanent members, sufficient "ownership" of their authority to act alone.

"It's the security council that is party to the ceasefire, not the UK and US individually, and therefore it is the council that has the ownership of the ceasefire, in my interpretation."

Blix' memoirs also include an interesting comment on the everyone thought they had them meme:

Chirac said France did not have any "serious evidence" that Iraq retained proscribed weapons. Having met people from French intelligence and listened to them, I registered with keen interest that Chirac did not share their conclusions on Iraq. The intelligence services sometimes "intoxicate each other", he said. War was now the worst solution. It would fuel anti-western feelings in the Muslim world ... Chirac said that Saddam Hussein was "locked up in an intellectual bunker". His entourage did not dare to tell him the truth.

Evidently the everyone meme is also without evidence.

'Iraq's Real Holy War

Anti-Shiism is embedded in the ideology of Sunni militancy that has risen to prominence across the region in the last decade. Wahhabi Sunnis, who dominate Saudi Arabia's religious affairs and export their philosophy to its neighbors, have led the charge, declaring Shiites 'infidels' and hence justifying their murder. (The legacy of Wahhabi violence against Shiites dates back to at least 1801, when Wahhabi armies from the Arabian Peninsula invaded southern Iraq and desecrated the holy shrine at Karbala.)

These anti-Shiite beliefs have spread to South Asia and Afghanistan, where the Taliban government used them to justify massacres of Shiite civilians. Even with the fall of the Taliban, widespread killings of Shiites and bombings of Shiite mosques and community centers in both Afghanistan and Pakistan have continued.

Many of the Sunni militants responsible for the attacks were trained in the same camps in Afghanistan as the Qaeda fighters and the Taliban soldiers. They fought side by side when the Taliban secured its grip on Afghanistan, notably the captures of Mazar-i-Sharif and Bamiyan in 1998, during which at least 2,000 Shiite civilians were murdered. And Ramzi Yousef, who was convicted of planning the 1993 bombing of the World Trade Center, is also a prime suspect in the bombing of the Shiite shrine of Mashad in Iran in 1994.

The point here is that the forces that are today killing Shiites in Iraq have their roots all over the region. It is a network of Arabs and non-Arabs, South Asians and Middle Easterners, Wahhabis and non-Wahhabis. And if these men succeed in starting a sectarian civil war, it will quickly spread beyond Iraq's borders.

The war party is not responsible for the Wahhabbi movement. But the occupation is responsible for security and for Iraq's longterm future. Apparently the potential civil war across the entire region is just getting dropped in the too hard basket. As long as it doesn't happen before the Tuesday next after the first Monday in November.