You’d think the hardest part of writing a new constitution for Iraq would be getting all parties to agree on its contents. Twenty-five factions, from the communists to the head of the Supreme Council for the Islamic Revolution in Iraq –– not to mention the Americans and the Brits –– have to be satisfied, and nothing less than the fate of a nation hangs in the balance.
Feisal Istrabadi, the principal legal drafter of the Iraqi interim constitution, coped with that part just fine. Difficult negotiations? Sure. Bombs and small-arms fire in the distance? No problem. As a lawyer who’d practiced in Merrillville and Valparaiso since graduating from Indiana University in 1988, Istrabadi knew he’d never do more important work. And he understood that failure was not an option.
What he didn’t know was that one of his greatest obstacles would appear back home in Indiana, where an Indianapolis lawyer refused to agree to delay a pending medical malpractice deposition. But more on that in a moment.
Istrabadi arrived in Baghdad on Dec. 17, 2003, as an aide to Adnan Pachachi, member of the presidency on the Iraqi Governing Council. At first, his job was to translate the drafts of the constitution being circulated from Arabic to English. Istrabadi started that work and immediately discovered problems. The bill of rights, for example, prohibited torture in the event of someone’s arrest on charges of a misdemeanor or felony. But if you weren’t charged, there was no protection against torture. Within about three weeks, Istrabadi says, putting together a working draft fell to him.
The son of Iraqi emigrees was up to the challenge. After all, writing Iraqi constitutions is something of an Istrabadi family tradition –– his paternal grandfather did it in the early 1920s.
Istrabadi, now 42, was born in Virginia. His parents moved to Iraq when he was about a year old. He can tell you the date Saddam Hussein grabbed power – July 17, 1968 – and clearly remembers seeing a televised execution, at age 6 1/2, the following February.
“I guess I understood that there was something ghastly unfolding,” he says. “We all got the message – the
message was to scare the living daylights out of us. And it worked. I knew that I should fear the government.”
Within 18 months, his father, a civil engineer, and mother, a professor of Shakespeare, quietly arranged for the family to leave Iraq. They moved to Bloomington and traded a comfortable life in Iraq for one that Istrabadi describes as spartan. Istrabadi’s father, Rasoul, says they chose Bloomington because they had a friend who was a professor at Indiana University and his mother, Amel, could pursue her Ph.D. there. Rasoul and Amel Istrabadi still live in Bloomington today.
Istrabadi studied chemistry, then law, at Indiana University in Bloomington. After college, in 1988, he moved to northwest Indiana to practice law.
His immersion in Iraq’s affairs started slowly, first lobbying policymakers in Washington, D.C., regarding sanctions against the country. “I was careful not to engage in anything that would appear to be political criticism of the Iraqi regime because I was afraid … for my family in Iraq,” he says. “But at some point, I understood that as long as this regime survived, there could be no meaningful humanitarian relief for the country.”
In 1999, Istrabadi’s sister, Zaineb, then a professor at Columbia University, heard that Iraq’s ambassador to the United Nations would be speaking to students about the negative effect of sanctions on Iraq. Incensed that they were presenting only the Iraqi government’s positions, she demanded that someone be allowed to express an opposing view. She suggested her brother, who presented an outline of the Hussein government’s own human-rights abuses.
Soon after he became senior adviser for constitutional reform and legal affairs to Adnan Pachachi, who was, among other things, the foreign minister in the Iraqi government Hussein helped overthrow in 1968. Istrabadi watched in awe as Pachachi, who he calls the “driving force” behind the document, used “sheer force of personality” to get all parties to agree to leave intact much of what Istrabadi wrote.
“There were exactly two things I really cared about,” Istrabadi says. “One was the bill of rights, and the other was the independence of the judiciary. Both of those survived intact as I wrote them. Everything else I regarded as political. Those things I regarded as legal.”
Istrabadi went into the process hoping to decentralize Iraq’s government in a federal structure as much as possible to prevent one person from grabbing power, but some compromise was inevitable. The prime minister position in his draft was much weaker than the prime minister is in the final document now. The presidency council – Iraq’s president and two vice presidents – was much more powerful than the presidency is now. The government, consisting of the council of ministers and the prime minister, was far more collegial.
But the principle of divided government survived, including what he sees as an innovation: A parliamentary system with full separation of powers so that a prime minister can’t serve in that position and as a member of the national assembly. Unlike the American system of government, Iraq’s leader must obtain and maintain the confidence of parliament, and that confidence can be withdrawn in either the government or any single minister.
“I’m not Moses,” he says dryly, “and I sure as hell wasn’t talking to God. So it may have been frustrating, but I can’t say that every word that came out of me was like a pearl.”
At 4:10 a.m. March 1, the negotiators agreed unanimously to adopt the interim constitution, which will be the basis for the final document, due in 2005.
“When they got to the last article and they passed it, Dr. Pachachi looked up and said the constitution was adopted by consensus,” Istrabadi says. “Everyone started hugging. Anyone who had been there, you ask them are you hopeful about Iraq, there was only one answer. It was a remarkable moment to be a part of. There was just magic in the air.”
Istrabadi’s father, while impressed with his son’s work, expresses some skepticism. “I thought it was very well written indeed – if they apply it. The constitution is not the problem. To apply the constitution is the problem.”
Istrabadi faced a different kind of problem during his time in Iraq. While he was working feverishly to wrap up his work on the constitution in February, he faced a court-ordered deadline to prepare a submission in an impending malpractice case back in Indiana. “I thought, ‘This is the most important thing I’ve ever done in my life and the most important thing I’m ever likely to do,’” he says of his work in Iraq. “I couldn’t imagine a lawyer not agreeing to an extension under the circumstances.”
He called the opposing counsel, an Ice Miller attorney, and asked for an extension. She said no.
“I said, ‘Look, I don’t want to make too much out of this, but this literally involves the vital foreign-policy interests of one country and the future of another.’ And her response to me was, ‘I don’t think that’s any of my client’s concern.’ And my response was, ‘There have been at least 60 American servicemen killed just since I’ve been here. I do believe it’s your client’s concern.’
“Her last words to me were, ‘If Ambassador [Paul] Bremer calls me and tells me that, I will consider it.’ I said, ‘You want a man who reports directly to the president of the United States to call you so that you can give me a continuance on a deposition?’ She said ‘yes.’”
No way could Istrabadi ask Bremer, the U.S. administrator of the Coalition Provisional Authority in Iraq, to intervene in a matter so relatively small. Istrabadi needed to decide: Should he stay in Baghdad and gamble that no rational court would deny a motion for more time? On the other hand, if a judge denied the extension, he’d likely have his case dismissed and face both a malpractice action and a disciplinary complaint against him.
He felt he couldn’t take the risk. Istrabadi started packing and called an aide to Bremer to say he was leaving. The aide called back and said not to go. He told them the only way he could stay was if Bremer would call the Ice Miller attorney.
Fifteen minutes later, Istrabadi says, another aide to Bremer called to get her phone number. Bremer called the lawyer and asked for a postponement on behalf of Istrabadi.
She said she’d think about it.
Hours later, she called and agreed to a continuance.
The Ice Miller lawyer agrees with this account of the events, more or less, but says the case had been delayed several times and she couldn’t agree to Bremer’s request without getting her client’s approval.
Istrabadi missed the constitution’s March 8 signing ceremony because he had to be back in Indiana for the malpractice case, but it wasn’t long before Pachachi nominated him for an ambassadorship to the United Nations.
On September 14, Istrabadi addressed the U.N. Security Council. For the first time in the council’s history, a state that was not on the Security Council was allowed to give a statement in what’s called an open consultation. “[It was] the biggest thrill of my professional life, sitting around the horseshoe for 10 minutes, telling them what I think,” he says.
Istrabadi doesn’t know what he’ll do when his work at the United Nations ends. The firm of Blachly, Tabor, Bozik & Hartman took over his Indiana practice, and as of this writing his plan was to move his “unbelievably supportive, gracious, good-humored, loving” wife, Juliet, and two young daughters to New York.
In the interim, his hope is to help Iraq become “a voice of reason and rationality” in world affairs. “That’s a process that will evolve,” he says, “because when your own house is on fire, you’re not concerned with the state of your neighbor’s house, necessarily. You try to put out your own house. We’ve been ablaze for 35 years. We’re not going to get the fire under control in a minute or two.”