As I was reading through the latest draft of the Iraqi constitution, I couldn’t shake the feeling that the document being created won’t have much immediate relevance to the current situation in Iraq and its enormous social and security problems.

What really matters is the development of a political culture that carefully safeguards the interpretation and use of a constitution as a nation goes forward.

The world, after all, is filled with examples of countries with wonderful constitutions – the last Iraqi constitution under Saddam wasn’t too bad – that are simply ignored by their despotic leaders. There are other countries that seem to get along pretty well without one – England comes to mind.

The Iraqi draft, as it stands now, is littered with ambiguity.

Take these three assertions in Article 2:

(A) No law can be passed that contradicts the fixed principles of Islam;
(b) No law can be passed that contradicts the principles of democracy;
(c) No law can be passed that contradicts the rights and basic freedoms outlined in this constitution.

The constitution goes on to say that “Iraqis are equal before the law without discrimination because of sex, ethnicity, color, religion, sect, belief, opinion, or social or economic status.”

Now, this sounds good. But I know of many interpretations of “the fixed principles of Islam” that would immediately come into conflict with both points B and C. A few Muslims think democracy is un-Islamic; the vast majority of Islamic scholars believe that Islam demands fairly sharp limits on “basic freedoms,” particularly those of women. In the end, it will come down to how these three rules are interpreted by future Iraqi lawmakers.

The political culture could end up favoring individual rights, say, over an Islamic scholar’s demand that women be forced to cover their hair. Or it could favor the scholar. There’s nothing in this document to indicate which way it’s going to go. But with the growing political clout of Islamist political parties here, it won’t be a surprise if a fairly restrictive religious climate is fostered under the new rules.

And as things stand now, there are a number of facts on the ground that violate the provisions of the draft. It bans private armies, yet there are at least six militias loyal to Iraq’s political parties currently at work, not to mention the thousands of mercenaries employed to guard contractors and public officials.

The draft also says that all Iraqis have the right to freedom and cannot be deprived of that right without “a ruling by the appropriate judicial body.” Perhaps reflecting the long, terrifying rule of Saddam Hussein, when one's own home was not sacrosanct, the draft promises that “homes cannot be entered or searched except by judicial decision.”

Yet as things stand now, dozens of Iraqis are detained by both local and US forces every day without any judicial review, and many endure up to six months of captivity without a hearing. Hundreds of Iraqi homes are entered every day, by both Iraqi and US forces, without any specific judicial authorization. Most US military field operations in places like Anbar Province involve kicking Iraqis out of their homes and commandeering them as sleeping quarters and observation points for as long as the operation lasts. I’ve been with US Marines who’ve done this – they feel bad about it, but say it’s operationally unavoidable if they’re to fight a war in an urban environment.

But that’s just the point. There’s a war going on here, and that means any real progress toward realizing the ideals in the constitution will have to wait.

So the US has finally decided to go after Shiite cleric Moqtada al-Sadr. Or, Sadr has finally pushed the confrontation so far that he’s forced the decision. Following days of clashes between his Mahdi Army and coalition troops, the coalition is now seeking his arrest on charges he was involved in the murder of a rival cleric almost a year ago.

But the dithering over what to do about the young militant, who’s managed to grab headlines and support far beyond his religious stature over the past year, illuminates the dearth of good choices available to the US as it seeks to navigate some of the trickiest obstacles to occupation.

Last April, the closest thing America had to an ayatollah of its own was Abdel Majid al-Khoei, exiled to London because of his opposition to the rule of Saddam Hussein. He was a leading voice of Shiite moderation, far different from the ruling clerics in Iran.

In the city of Qom, the heart of Iranian Shiite theology, he was known as a persistent voice for reform of the Iranian system. He argued against the branch of Shiite thinking that gave only top ayatollahs the right to political leadership.

Khoei’s vision was for a democratic Iraq guided by Shiite principles in the moral sphere, but with limited interference from clerics in practical politics. As such, he was an Ayatollah straight from American central casting. US Marines managed his triumphant return to Iraq, with $13 million of US money (some say provided by the CIA) in his pocket to win over the city of Najaf, Iraq’s preeminent center of Shiite learning and worship.

But the dream of the friendly ayatollah died with Khoei. He was assassinated in Najaf on April 10, 2003, less then two weeks after his return. Within days of his murder, some Shiite leaders were pointing to followers of Sadr – already mobilizing an armed militia to seize the influence that his youth and undistinguished record as a religious scholar denied him. By the end of the month, investigators from the Coalition Provisional Authority were beginning to put together a comprehensive case that Sadr had ordered the murder as part of a grab for Najaf’s Shrine of Ali, where the millions of dollars in the coffers could do much to make up for Sadr’s theological shortcomings.

Ayatollah Khoei’s murder was particularly vicious, a death scene out of Shakespeare. According to a coalition investigator, whom I spoke with last October, a group of Sadr supporters armed with knives surrounded their boss outside the shrine and asked him for permission to kill Khoei, who had gone inside. “Now, by the will of god, attack,” Sadr allegedly said. When Khoei emerged, he was first hit by knives and perhaps gunfire on the steps of the mosque. But he managed to stagger to a nearby shop, whose owners sought to protect him. An emissary from Sadr came to the wounded Khoei, and promised safe passage to Sadr’s office to clear up the “misunderstanding.” Khoei, according to the coalition source who cited an eyewitness, unwisely accepted.

As he arrived at the doorway of Sadr’s small office, he was repeatedly slashed with knives and shot with a rifle. So there, dead on the pavement of Najaf, was one of America’s best hopes for winning the four-square support of Iraq’s Shiite majority. By October, my source said a legal case had been prepared against Sadr strong enough to arrest him, and that he was confident it would lead to conviction.

But the CPA, afraid that his arrest would spark a confrontation and lead to widespread violence, decided to hold its warrant in reserve, said my source. The CPA quietly put out signals to Sadr that he wouldn’t be molested if his behavior improved, an incentive to play ball.

But, in the intervening months, Sadr continued to build his militia, and push the US toward a confrontation, leading to the bloody scenes of the past few days. Media coverage of the violence in Sadr City, Najaf, and Nasiriyah will probably hit President Bush’s approval rating in the near term.

The coalition has been at pains to deny that it decided against arresting Sadr sooner for reasons of political expediency. CPA Spokesman Dan Senor announced Monday that Sadr would be arrested on allegations of involvement in the murder of Khoei. But he insisted the announcement had nothing to do with two days of violence – including one of the bloodiest firefights of the occupation – led by Sadr’s followers.

Mr. Senor said the two things were merely coincidental, and that the timing for the release of the arrest warrant was simply down to a decision taken by an Iraqi judge. (The investigating committee involved Iraqi judges and prosecutors as well as senior coalition officials. People involved with the committee have indicated that coalition members wielded much greater authority.)

For now, US attempts to work with Sadr are over, and he’ll probably be arrested soon. But his arrest could stir up more anti-American anger among Iraq’s Shiites. As I talk to more people here on the streets, I get the feeling that the US will have to be careful in the way that it handles Sadr, but that widespread fighting for him isn’t likely. There will undoubtedly be more bloody incidents, but he so far hasn’t managed to spark the broader uprising he was hoping for. (by Dan Murphy)