The long goodbye

Type "counterinsurgency failure" into a popular search engine, and you will find papers on the great British counter-insurgency failure of 1776, the Russian failure in Chechnya, and American failures in Greece, the Philippines, and-naturally-Vietnam. You will find some ad hoc opinion pieces on counterinsurgency failure in Iraq, but you will search in vain to find a research paper suggesting that the surge in Iraq, which formally began in 2007, has failed.

That's because the facts on the ground suggest the opposite.

And that, even more than momentum from last November's polls, is the reason that President Barack Obama was able to stand before thousands of Marines at Camp LeJeune on Feb. 28 and declare: "By August 31, 2010, our combat mission in Iraq will end."

Obama told a subdued audience of combat-fatigue-clad marines that he consulted with the secretary of defense, the joint chiefs, and commanders in Iraq before deciding to conclude a drawdown of U.S. combat forces in the next 18 months, two months longer than the 16 months he pledged on the campaign trail. He said he plans to keep in place a residual force of up to 50,000 through 2011 in a plan for what he called "the responsible removal of our combat brigades from Iraq."

The president's withdrawal plan leaves virtually untouched through 2009 approximately 140,000 U.S. troops-that means through the upcoming March 20 anniversary of the U.S. invasion six years ago, and through nationwide parliamentary elections scheduled for December.

Despite the progress and new U.S. operational strategy, popular criticism lingers that the success of the surge is only skin deep.

"The surge worked militarily. It failed politically," is the conclusion of Washington Post journalist Thomas E. Ricks and others. Ricks authored the 2006 book Fiasco and 2009's The Gamble.

That kind of pronouncement feeds a low-grade dread that Iraq will devolve into violent chaos once all but the U.S. residual force remains, recalling scenes from Somalia 1993 with U.S. forces battling urban warlords. And lack of political progress needles at a more pressing worry: that getting the job done in Afghanistan will prove impossible, too.

But international law experts and a look at three critical areas affecting Iraq's political and judicial makeup suggest that isn't the full story. After all, the rule of law arguably began in ancient Babylon under Hammurabi, whose code of legal requirements was one of the first written in the world. That's why the Babylonian king, ca. 1770 B.C., is depicted as one of 23 lawgivers in bas-relief above chamber doors of the U.S. House of Representatives and on the south frieze of the U.S. Supreme Court building-so widely is he credited with the concept that no one is above the law.

Iraqis like to claim the Hammurabi tradition, discovered Vanderbilt law professor Michael A. Newton while advising Iraqi jurists and training judges to serve on the Iraq High Tribunal: "The jurists would say they want to restore the real Iraq because Hammurabi was an Iraqi." When it comes to "rule of law" matters, progress has been less examined but is no less defined, Newton and others argue, verging even on success in key areas.

One area of progress is the treatment of Iraqi detainees. Little noted in the military surge is that the number of Iraqi and foreign insurgents captured outnumbered those killed: About 25,000 suspected Iraqi militants were in U.S. custody just over a year ago. By the end of this year most will be transferred to Iraqi custody or released.

Military commanders have in the last 18 months clarified the mission of detention, in contrast to the confusion and muddled chains of command that surfaced infamously in the Abu Ghraib abuse cases of 2004. Subsequently, U.S. commanders discovered an escape tunnel dug by as many as 600 detainees at Camp Bucca, the desert prison that until this year has been one of two U.S. detention facilities in Iraq. At one point over 10,000 detainees rioted at the camp, setting fire to tents.

One problem: The U.S. military treated the camps as holding pens beyond the boundary of war when in reality they were battlefields of their own, places where hardened terrorists could establish "jihadist universities" unless counterinsurgency tactics could turn disaffected Iraqis into solid citizens again.

The practice of counterinsurgency is counterintuitive to the traditional conduct of war. Gen. David Petraeus, commander of U.S. Central Command and the author not only of the army manual on the subject but also its chief architect in Iraq, likes to ask military personnel: "So what have you done to help the people of Iraq today?" He tells soldiers and marines they should be ready to be greeted "with a handshake or a hand grenade" and to see themselves as nation builders as well as warriors.

So prison commanders started talking to detainees, discovering, not surprisingly, that many "were not avowed jihadists but Iraqi civilians spurred on by pragmatic considerations," writes researcher Jeffrey Azarva in the latest Middle East Quarterly. In many cases "a confluence of factors contributed to the average detainee's arrest, such as illiteracy, fear of reprisal, underemployment, and the enticement of cash." It didn't help that al-Qaeda was paying $200 to $300 a month to plant roadside bombs.

Now U.S. commanders separate the "low-value" detainees from what they consider hardened terrorists. Working with the Iraqi government, they offer them incentives to forsake jihadism: vocational training, education programs, family visitation, payment for labor in the camps, an opportunity to have their case heard before a review committee, and the prospect of release.

With the help of Iraqis, U.S. officers also discovered a 1957 Iraqi law that is making prisoner releases more successful. Those eligible must go before an Iraqi judge and take an oath not to engage in fighting. But the law goes one step further: Local guarantors, usually a tribal leader and a family member, must sign for the release. If the freed man returns to crime or insurgent activity, the guarantors can be held responsible-and authorities know where to find them.

In this way U.S. forces released over 18,000 prisoners in 2008, with only about 150 coming back, according to Brig. Gen. David Quantock, U.S. commander of the military detainee program.

At Baghdad's Camp Cropper, the other U.S. detention facility, U.S. guards segregate detainees wearing loud yellow overalls and plastic sandals into separate wings, depending on whether they are hard-core and whether they are affiliated with al-Qaeda or the Mahdi army. The tempo at Camp Cropper is anything but static. Since Jan. 1, when the status of forces agreement with the Iraqi government took effect, new detainees must go before an Iraqi court. Quantock told reporters recently that the prisons expect to release about 50 detainees per day this year. Terrorists considered "irreconcilables" will remain behind bars. And assuming the review system involving the courts remains in place, then there's recourse for sectarianism and prisoner abuse, recent hallmarks of Iraq's prison system.

Americans forget that Iraq once had one of the best education systems in the Arab world and a very high-quality judiciary. That's why Saddam had to bypass the system and create his own set of revolutionary courts. There weren't enough judges who would tow the Baath Party line," observes the Vanderbilt law professor, Michael Newton.

Newton has been in close contact with Iraqi judges since 2003. A West Point graduate who served in both the Clinton and George W. Bush administrations as a war crimes advisor at the State Department, he says U.S. officials and most Americans underestimate the capability of Iraq's judiciary system.

Newton helped Iraqi jurists draft the statute creating the Iraq High Tribunal to try crimes committed by the Baathist regime-even before Saddam's capture in December 2003. Then he worked alongside those appointed to the tribunal, joining a panel of international law experts to provide training in London to Iraqi judges (Saddam had prevented judges and lawyers from traveling outside the country, leaving most of them decades behind on legal developments). He told me he "grew to really respect the character of the judges"-and with law professor Michael P. Scharf authored Enemy of the State (2008, St. Martin's Press), a chronicle of Saddam's trial and execution.

To most Americans that trial turned into a circus culminating in a hasty and indecorous death by hanging. Newton believes that was less about flaws in the system than about the cult of Saddam, who continued to cast a shadow of fear over the proceedings both inside and outside the courtroom.

Americans saw his courtroom outbursts as a way to spread resentment of U.S. forces and to distract from the charges of mass killings and war crimes.

Saddam tried to divulge the secret location of the courtroom, shouted at the chief judge, "Go to hell!" and called on Iraqis to attack American and Iraqi officials. Court officers forced his return to the courtroom (required by law) after he boycotted the proceedings and went on a hunger strike.

For Iraqis the melodrama served to remind them what kind of dictator Saddam was, a man on the loose who cared little for their welfare. One eyewitness to mass killings ordered by Saddam in the town of Dujail was among the few to testify openly during the trial. He later paid for it: Two cousins and a nephew were killed subsequent to his courtroom appearance, and his brother was shot in the legs and crippled.

Defenses attorneys and judges also sacrificed their lives for due process: Four members of the legal team for Saddam and his seven codefendants were killed during proceedings. Nearly 200 Iraqi judges and lawyers have been assassinated since 2003, including several who began as part of the pool of tribunal judges.

At one point the Iraqi government also tried to upend proceedings, accusing several members of the tribunal of having ties to the Baath Party and forcing the chief judge to step down. But the tribunal forged ahead-sifting through what were in the beginning 10 tons of files, the evidence amassed against Saddam and his regime, stored in a specially built secure facility, according to Judge Raid Juhi Hamadi al Saedi. The former chief investigative judge of the tribunal has been a visiting fellow at Cornell Law School. "Our responsibility was to send the message that no one is above the law," al Saedi told Cornell law students last year. "We also sent a strong message to judges and legal experts that it is [their] responsibility to handle and improve the situation in Iraq. And we also sent a message to politicians: that they must [not interfere] with the rule of law and must show respect for the [Iraqi] constitution."

As the trial wound down, Newton left Iraq in December 2006, confident that a verdict and sentencing for Saddam would not take place until spring. But days later as he boarded a plane for New York, he received a text message saying, "opinion due shortly." By the time he arrived in New York, Saddam had been sentenced to death and a date of execution was nearly set.

Newton describes those final proceedings as "a mess" in Enemy of the State and writes that the tribunal "was snake-bitten from its conception." Human-rights organizations and European countries opposed it because it allowed for the death penalty and prevented Saddam from being tried in an international court. The tribunal itself was unprepared to counter the outbursts of Saddam and other defendants. Despite the trial's flaws, Newton believes the determination of the Iraqi jurists and the Iraqi people who followed it on television by the millions is a little understood milestone even now as the war draws to a close.

"I was surprised by the speed of things. But you have to remember that the Iraqi government was under tremendous domestic pressure to move swiftly. People were dying in the streets every day. The fear and paranoia over Saddam is hard to overstate. And they didn't trust the Americans." Prosecutors feared that a delay in sentencing would allow time for U.S. forces holding Saddam to reconsider turning him over to the Iraqis.

"The Iraqi judges saw this as their way of fighting terrorism. They couldn't take to the streets and fight but they could do the judicial process," said Newton. The Dujail opinion, and ongoing cases against Baathist leaders for war crimes against the Kurds, also are pertinent for the United States, Newton contends, in the continuing struggle among the executive, congressional, and judicial branches to define how to fight terrorism within the bounds of the law.

"The trial was a microcosm of the surge," said Newton. "If you put in a bunch of troops and there's no parallel system of law and justice, you can put in as many troops as you want and you will not get societal order. . . . I don't think you have a successful surge without reestablishing the rule of law. And conversely you can't reestablish the rule of law without a successful surge."

The other important by-product of Saddam's 2006 prosecution is that his Baath Party died with him. "The message for leading Sunnis was that you cannot have power again without being part of the political process," Newton told me.

The turnabout was evident in Iraq's recent provincial elections. Sunnis and Baathists boycotted parliamentary elections in 2005-with dire consequences. Once locked out of power in places like Anbar, Nineveh, and Diyala, provinces where they once enjoyed perhaps undue influence under Saddam, many took to the streets as insurgents.

This time Sunni turnout in Jan. 28 polls averaged 60 percent, compared to 2 percent in 2005, and Sunnis gained key seats on the local councils in Nineveh, an increasingly important source of power for Sunnis and Iraqi minorities given the overall gains by majority Shiites.

In general, more strictly religious parties, including radical Islamist groups, did poorly alongside more broadly secular ones. In Mosul, where Christians have been attacked by militants, that was good news: The largest Sunni party won more than 40 percent of council seats, Kurds won over 20 percent, and radical-leaning groups like the Sunni Arab Iraqi Islamic Party received less than 7 percent of the vote. In once-volatile Anbar province, Sunni leader Saleh al-Mutlaq's Iraqi National Project won a narrow victory over incumbent Sunni Islamists.

Overall, reports the Institute for War and Peace Reporting, which monitored the results, voters in 14 of Iraq's 18 provinces rejected the overtly religious alliances in favor of lists "that promised security, better services and strong central government."

Among military experts it's said that time in Iraq can be divided between B.C.-Before the Counterinsurgency-and A.D.-After David, as in Petraeus. While the successes of the military surge he engineered are undeniable, they go hand in hand with rule-of-law "surges" that are slowly reinforcing other forms of security. And the principles at work-among them moving into the neighborhood to gain legitimacy (and to help), creating governing bodies with popular support (and supporting them), minimizing corruption and abuse-can be carried well beyond the Zagros Mountains to Afghanistan because they are principles that work, however imperfectly, everywhere.