Douglas W. Kmiec

chair and professor of constitutional law, Pepperdine University

To leave Iraq with honor requires having acted honorably while there.  Unfortunately, that wasn’t on the “to do” list.  As disclosed this month, a long-buried, RAND corporation report for the Army found post-invasion planning to have been assigned to a Pentagon that didn’t want it and a State Department and National Security Council that were either side-lined or ineffectual.  “There was never an attempt to develop a single national plan that integrated humanitarian assistance, reconstruction, governance, infrastructure development and postwar security,” the report said.    

Back in late 2005, RAND’s report was unwelcome news for an administration trying to convey an upbeat assessment of “victory” -- which of course explains why the public is only reading the study now.  Managing the news substituted for handling the real problem.  As RAND observed, “Building public support for any pre-emptive or preventative war is inherently challenging, since by definition, action is being taken before the threat has fully manifested itself.  Any serious discussion of the costs and challenges of reconstruction might undermine efforts to build that support.”  Translation: if we actually added up the cost in lives and treasure in advance, we might not have been so quick to accept the invasion’s weak justification.

But that was then.  How do we go about leaving Iraq with honor now?  There is no honor to be found in the endless political argument over whether there ever was a credible basis for intervening or a justification for an ill-fitting new form of government or any explanation for an extended occupation that has precipitated an intolerable level of daily insurgent attacks. No, the only responsible course is to pick up the task of rebuilding that RAND prescribed three years.  For a fraction of the hundreds of billions of dollars the president has requested for the continuation of the military occupation, it would be possible to build economic and social infrastructure in the most honorable, humanitarian sense – namely, courts, clinics, schools, businesses and homes in abundance.  

While the political leadership in Washington has been in default, in subtle and important ways individual military personnel have taken up the face-to-face regeneration of  the Iraqi civil order that the Pentagon shunned.

Take for example, Major Mike -- a graduate of Pepperdine Law School. A few years ago, he sat comfortably and safely in my class with the usual T-shirt and backpack putting up with his professor’s meandering Socratic dialogues. Today, he is deployed in the disorienting and dangerous Fallujah. His responsibility is to steer the Fallujah judiciary toward the rule of law. Here’s what he wrote me recently: "We met with the Chief Judge, and two of his investigative judges to try and figure out why more criminals are not successfully convicted. The judges advise us to ‘think like an Iraqi.’"

That’s the rub -- thinking like an Iraqi means relying upon what we taught him to see as unreliable and subjective evidence. Writing in the fairest (but nevertheless distinctly U.S.) terms, Major Mike says "[t]he Iraqi system favors testimonial and demonstrative evidence over real evidence." In America, we insist on fingerprints, gunshot residue, photos of the crime scene; in Iraq, the judges want mini-stage plays or re-enactments which not only would not be considered evidence in the United States, but would often be ruled prejudicial.

Nevertheless, crime in Iraq is as frighteningly real there – and as tragic there – as it is in any American venue. Major Mike recounts the case of insurgents "who kidnapped a 14 year-old-boy, beheaded him, then sent the video of the killing to his father. His father was the former head of one of the local police agencies. Because coalition forces gave the boy some gifts (probably soccer balls), the insurgents thought he was working with us."

Of course, he wasn’t, and Major Mike senses deeply how, rules of evidence aside, the human heart cries for justice. So it is no surprise when the "judge informs [him] that they want Iraqi legal techniques . . . Not American laws."   This, of course, is the opposite of his assignment which is not to walk in Iraqi shoes, but to fit those stubborn Iraqi feet into American wing-tips.  To his credit, at least by the lights of his old professor, though perhaps not his immediate commander, he thinks “Iraqi law for Iraqis ...hmm what a great idea.”

Major Mike has learned far more than we could teach him in the classroom. He now knows there is more than one way to reach a reasoned conclusion.   Were his country to learn this too, it would be closer to finding the path toward an honorable exit.