US struggles with new rules as war turns to occupation

Delays in reasserting the rule of law can put the US in a precarious position. Experience in other countries suggests people under occupation may become disillusioned with their new overseers, taking matters into their own hands.

Part of the problem is that the US is a victim of its own military success. US officials thought they'd have far more time to prepare. Once fighting ceased, the Defense Department's Office of Reconstruction and Humanitarian Assistance (ORHA) anticipated a period of relative calm, during which it would dispatch a 25-member team to assess the legal and police system before designing new alternatives, says one attorney familiar with the agency's plans.

Instead, civil unrest broke out as Hussein's regime collapsed. For now, US soldiers and Iraqi police officers are relying on "common sense" to fill the legal vacuum, says the diplomat.

The Pentagon did have at least one element of its plan in place: how to prosecute anyone involved in biological-or-chemical-weapons attacks. According to a lawyer who participated in the process, the National Security Council readied two plans: one to set up a UN-sanctioned international court; the other, the Pentagon's preference, would use military tribunals.

Still, while US officials have a developed plan to deal with users of weapons of mass destruction, insiders say the administration is less definitive on how it will handle more general war criminals.

Under one three-tiered plan, high ranking Baath Party and military officials charged with crimes against humanity, genocide, and torture would be tried by a special Iraqi court. Lower-level offenders would tried before Iraqi criminal courts. A separate forgiveness and reconciliation commission would handle lesser crimes.

The plan, fashioned largely by exiled Iraqi lawyers, is being considered at the upper echelons of the State and Defense departments and the National Security Council. But it has yet to be approved. "There is a bit of ambivalence about moving ahead with it," says one lawyer. "There's a fear that if they have an independent structure for the judiciary, it would interfere with political plans."

Iraqi exiles say competition between the State and Defense departments has hampered their contributions. "The Pentagon is going off on its own and is not recognizing all this work that has been done," says Sermid al-Sarraf, a Los Angeles lawyer and member of the exile working group.

But others see unrealistic expectations as much as politics involved. M. Cherif Bassiouni, a DePaul University law professor who is advising the State Department, says its members may have overestimated the role they'd play in helping rebuild Iraq. "The Iraqi expatriates had expectations that this wasn't really a training seminar, but that these people were being selected or tapped to be involved in the future administration of Iraq," he says.

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