Democracy, Human Rights & the Rule of Law

Articles on Democracy, Human Rights and the Rule of Law:

Barnes, Rudolph C., Jr., chapter 4, Military Legitimacy: Might and Right in the New Millennium.

Barnes, ____________, The Rule of Law and Civil Affairs in the Battle for Legitimacy, see in 2009 Military Legitimacy and Leadership Journal.

Barnes, ____________, Democracy and the Military in Egypt: Friends or Foes? February 7, 2011, see below.

Gordon, David S., Promoting the Rule of Law in Stability Operations: Myths, Methods and the Military, see in 2009 Military Legitimacy and Leadership Journal.

Love, Janice, Disputes Over Morality in US Foreign Policy, see in 2010 Military Legitimacy and Leadership Journal.

Rubini, Daniel L., Justice in Waiting: Developing Rule of Law in Iraq, see in 2009 Military Legitimacy and Leadership Journal.

 

Democracy and the Military in Egypt: Friends or Foes?

(Rudy Barnes, Jr., February 7, 2011)

In his commentary on the Egyptian revolution, David Ignatius opined, “A strong army can allow a transition to democracy and economic reform.” (Ignatius, The Arab Revolution Grows Up, Washington Post, February 2, 2011)  There is reason to question the assertion that the Egyptian Army will promote a transition to democracy.

The military is not by nature a congenial partner with democracy.  It is an authoritarian regime that cannot tolerate the individual freedom and civil liberties of democracy.  That’s not a problem in Egypt which has been governed by an authoritarian regime, but it can be a problem for civil-military relations in a healthy democracy. 

Ignatius cited Samuel Huntington’s 1957 classic on civil-military relations, The Soldier and the State to support his thesis that the military can aid in the transition to democracy.  Huntington argued for a military isolated from civilian politics to avoid corrupting the military warrior ideal.  His pure, unpolitical military would never support a political transition, and his unpolitical paradigm became obsolete when the US military undertook counterinsurgency operations in Vietnam that had political objectives.   

The Egyptian army has been in politics since 1952.  It has stood solidly behind authoritarian Egyptian regimes since 1952 and provided them with political leaders from its officer corps; and when crowds in Tahrir Square in Cairo demanded the resignation of Mubarak in January and February 2011, news commentators were unanimous in predicting that the Army would be the power that would fill any political vacuum.

Elizabeth Bumiller of the New York Times reported that “…whoever becomes the new president after elections in September, American officials say that the rich and secretive Egyptian military holds the key to governing Egypt, the country’s future and by extension to the stability of the Arab world.”  She cited a 2008 cable from the US Embassy in Cairo to describe how the Egyptian Army was involved in the political and economic life of Egypt: “…military-owned companies, often run by retired generals, are active in the water, olive oil, cement, construction, hotel and gasoline industries.  The military also produces televisions—and milk and bread.” (Bumiller, Egypt Stability Hinges on a Divided Military, New York Times, February 5, 2011)

Reuel Marc Gerecht noted “The Egyptian Army [is] historically no friend of democracy or civil liberties…” and predicted “What we are likely to see in Egypt is not a repeat of Iran, where fundamentalists took undisputed power, but a repeat of Iraq, where Sunni religious parties did well initially but started to fade, divide and evolve as the powerful Sunni preference for laymen…comes to the foreground.”  But Gerecht’s vision of democracy in Egypt is one defined by Islamic law: “Democracy for the faithful has become a means for society to affirm its most cherished Islamic values.” (Gerecht, How Democracy Became Halal, New York Times, February 6, 2011)

 Fareed Zakaria was blunt about Egypt’s military being hostile to democracy and described the primary threat to Egypt as a military dictatorship: “Since the officer’s coup in 1952, Egypt has been a dictatorship of, by and for the military….  The armed forces have huge budgets and total independence, and are deeply involved in every aspect of society, including owning vast tracts of land and hundreds of companies.  Right now the military is consolidating its power….  The military seems to have decided to sacrifice Mubarak but is trying to manage the process of change, to ensure that it remains all-powerful.  Egypt, remember, is still ruled by martial law and military courts.” (Zakaria, Egypt’s real parallel to Iran’s revolution, Washington Post, February 7, 2011)

It is obvious that the Egyptian military does not meet Huntington’s paradigm of a pure authoritarian regime of power that is isolated from politics and congenial to democratic transition.  To the contrary, the Egyptian military has vested interests in both the political and economic structures of Egypt; and while that has been acceptable in past authoritarian regimes, it is not compatible with the political and economic freedoms so essential to a healthy democracy. 

It seems unlikely that the Egyptian military will divest itself of its considerable political and economic power and promote changes that would certainly create tension between it and a new democratic government.  Thus it appears that the Egyptian military is not a friend but a foe to any transition to democracy in Egypt.

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For those interested in pursuing further the civil-military relationship between an authoritarian military serving a libertarian democracy the following excerpts are provided from chapter 5 of Military Legitimacy: Might and Right in the New Millennium. (Frank Cass, 1996; see sidebar for entire text)  It elaborates on the natural conflict between democracy and the military and the Huntington paradigm of an isolated and unpolitical military.  It does not address the role of the military in authoritarian regimes like Egypt, but it does address a related issue in the US: The need for politically-savvy diplomat-warriors1 in contemporary operations with political objectives, such as counterinsurgency, stability operations and nation-building.

From Military Legitimacy: Might and Right in the New Millennium, chapter 5, pp 88-94:

     Operations other than war require that the military leader be equally at home in a civilian or military environment.  But there is a natural tension in civil-military relations that can affect military legitimacy.  This tension is due to the tendency for military (collective) values to conflict with civilian (individual) values.  Colonel Dennis R. Hunt, Professor of Law at the U.S. Military Academy, introduces cadets beginning the study of Constitutional Law to the potential conflict:

“To succeed as an officer you must comprehend the paradox of a military organization within a democratic society.  The military is necessarily non-democratic and authoritarian, but it defends democratic principles and is manned with citizen soldiers drawn from a society which enjoys great personal liberties.  You will be challenged to ensure that soldiers’ Constitutional rights are neither unjustly nor unnecessarily abridged in the course of accomplishing your mission and administering military law.”2

     The military environment emphasizes collective values such as good order and discipline which are required in an authoritarian organization; but these military values necessarily conflict with individual rights such as the freedom of expression which are protected by the Constitution.  The potential conflict between these military and civilian values threatens civil-military relations and military legitimacy.

     There is evidence that misplaced concepts of duty and loyalty to authoritarian values have caused some officers to loose touch with civilian values grounded in the U.S. Constitution.3  This was illustrated in the Iran-Contra affair, when Lieutenant Colonel Oliver North put his loyalty to a mission of doubtful legality ahead of his duty to support the Constitution.  In failing to cooperate with the Congress, he not only compromised his integrity, but also his mission.  His actions doomed congressional support for the cause he had so zealously pursued.

     Colonel North’s conduct has been described as a leadership failure that “…occurs when pragmatic but narrowly focused subordinates, in their zeal to get a job done or to please their boss, act illegally or unethically….”4  A noted military ethicist, Colonel Anthony E. Hartle, questioned Colonel North’s loyalty to the Constitution:

“Some critics have claimed of North that in his zeal to promote democracy abroad, he subverted it at home, specifically in subverting some of the fundamental tenets of the professional military ethic.  North may have become so concerned about protecting foreign agents and contacts that he lost sight of his loyalty to American institutions and the Constitution.”

     Colonel Hartle noted that when Colonel North, or any officer for that matter, puts loyalty to mission ahead of loyalty to the Constitution, it is a real threat to democracy: 

“When the inefficiency and lack of responsiveness of democratic procedures become too great a luxury or danger, and persons other than the people’s elected representatives conclude that, because they understand the real priorities, democratic procedures must be set aside, then the republic is perhaps most endangered.”5

     The Constitution is the ultimate standard of legitimacy for military officers.  They must not only understand the Constitution, but upon commissioning take an oath to support and defend the Constitution against all enemies, foreign and domestic; and bear true faith and allegiance to the same.  Where there are conflicting values of duty and loyalty, the oath leaves no doubt that the ultimate duty and loyalty of the military officer must be to the Constitution as the foundation of the rule of law and the bedrock of military legitimacy.6

     The dichotomy between military and civilian values is most evident in emerging democracies where there has been no traditional separation of military and political power.  In the emerging democracies of Eastern Europe and Latin America, military legitimacy depends upon a new generation of leadership to reshape authoritarian concepts of military professionalism and improve historically poor civil-military relations.7

     The challenge of promoting the Constitutional values of democracy, human rights, and the rule of law in emerging democracies requires leadership that understands the importance of civil-military relations to military legitimacy.  Leadership must be provided in civilian as well as military environments, which necessitates balancing the requirements of warfighting with a professional style that promotes civil-military relations.

     The requirements of military legitimacy in the new strategic environment call for a new style of leadership that depends more upon knowledge and the power of persuasion than on command authority.  Leaders in operations other than war must be able to motivate others, both military and civilian, without arousing hostility–a Webster’s definition of diplomacy.  Diplomacy is out of place in combat, where success is synonymous with hostility.  But proficiency as a combat leader is not a sufficient qualification for leadership in operations other than war.

     A former military advisor to Saudi Arabia has compared the contrasting leadership skills required in peace and war, and defined diplomatic leadership as leading from behind.  General William H. Riley, Jr. noted that

“Leadership is defined as making it happen.  Obviously, an aggressive, confrontational, results-at-any-cost mentality would be counterproductive with our Saudi counterparts.  A General Patton would probably be a miserable failure in developing rapport and achieving progress with the Saudis.  A take-the-hill kind of attitude that attempts to tally quick results will not work well in the Saudi environment.  We should lead from behind and encourage our Saudi counterparts to take the prominent role in planning, coordinating, directing, and controlling their projects.”8

     While the diplomatic style of leadership required of the military advisor contrasts sharply with the leadership traits required in combat, the two are not mutually exclusive; both styles of leadership are right (and legitimate) for their respective environments.  Many combat leaders are versatile enough to be both great warriors and diplomats, but some are not; and others, like Colonel David H. Hackworth, do not care to be diplomats and should not be put in a position to jeopardize military legitimacy.

     Colonel Hackworth, the most highly decorated combat soldier alive, is the quintessential undiplomatic warrior.  His heroic but unabashedly brash military exploits have been chronicled in his book About Face.  Colonel Hackworth recalled an earlier effort by the Army (circa 1954) to develop a

“…new breed [that was] kind of a warrior-diplomat; as bloodless ballistics seemed to be phasing out the role of fighters on future battlegrounds, the emphasis increased on the diplomatic side of soldiering.”9

     Colonel Hackworth and his rowdy warriors wanted no part of military diplomacy.  When Hackworth served as a MACV advisor in Vietnam he was openly cynical of his ARVN counterparts.  His leadership style was direct and forceful, if not intimidating; and he had little use for the finesse required in diplomacy.  In fairness to Colonel Hackworth, however, there was little comparison between the environment in Vietnam after 1968 and that of Saudi Arabia in the 1980s.

     One officer who exemplified the qualities of the diplomat warrior in an advisory role was never a combat leader.  Major General Edward Lansdale nevertheless had the confidence and respect of those he advised, including Ramon Magsaysay who was Defense Minister and later President of the Philippines.  Lansdale helped Magsaysay successfully counter the Huk insurgency in the Philippines during the 1950s.  Their counterinsurgency operations reflected a commitment to democracy, human rights, and the rule of law that remains relevant today.  Lansdale’s successful counterinsurgency philosophy was based on a sensitivity to the human, or social, dimension of conflict:

“Lansdale had real concern for insurgents and a great deal of sympathy for their goals.  He was at one with his old friend, Magsaysay, who once said, ‘When a man is prepared to give up his life to overthrow his own government, he must first have suffered greatly.’  Lansdale was likewise in agreement with Magsaysay’s position that ‘those who have less in life must have more in law.'”10

     Lansdale’s moral principles were the foundation of his concept of military legitimacy, and they exemplified those of the diplomat warrior.  He considered any deed “which makes the soldier a brother of the people, as well as their protector,” a worthy one.  And he cited the ancient Chinese general, Sun Tzu, who considered military humanitarian assistance as “moral law.”  It was Sun Tzu who observed that “to fight and conquer is not supreme excellence; supreme excellence is to conquer without fighting.”  Lansdale also cited a later Chinese leader, Mao Tse-tung, who required his soldiers to act in accordance with orders, not to take anything from the people, and not to allow private interests to injure public interests.  Lansdale used these principles to illustrate his belief that in political warfare “the paramount object was to gain the loyalty of people who inhabit the land.”11

     Lansdale combined the best qualities of the military ethic and professionalism with a respect for divergent views and a strong belief in individual rights and responsibility as a measure of integrity.  He was equally at home in a military or civilian environment and was outspoken in his criticism of narrow-minded military leaders.  Criticizing the emphasis on body count as a criteria for mission success and insensitivity to collateral damage in Vietnam, Lansdale challenged myopic military leaders to look at the moral dimension of their actions:

“True Americans, Lansdale warned, would avoid such actions.  ‘Open your eyes where you serve,’ he ordered.  Be good soldiers.  Win over local populations.  See that troops behave with true military courtesy.  Keep always a high code of honor.  Prize integrity.  Accord others the dignity that is their birthright.  Act as a friend.  Have empathy and humility.  Offer a smile and a greeting in the language of the host country.  Practise what you preach.  Only those who act in such ways are true Americans.  This strength we must have, or all else we possess and do will be without lasting meaning.”12

     Lansdale applied the above qualities in operations other than war before they were known as such.  Their success demonstrated how the values of the Army Ethic–duty, loyalty, integrity, and selfless service–can help make the military a positive and constructive force in achieving U.S. foreign policy objectives during peacetime and conflict.  When applied to civil-military relations, these traditional military values provide a context for ethical decision-making.

     Vietnam was a crucible for the diplomat warrior, and until 1965 the Special Forces advisor reflected the Lansdale ideal.  As late as 1969 there were diplomat warriors in remote hamlets of Vietnam still trying to salvage military and political legitimacy.  One of these diplomat warriors wrote of his experiences in Once a Warrior King.  He was invited back to Fort Bragg where he once received training as a military advisor to reflect on his experiences:  

“I have seen the term in some of the materials here, the Diplomat Warrior, and I suppose the things we did might be covered by such a term.  On the civilian side, we worked for the American embassy on rural development, and on the military side we were tactical advisors for MACV.  Almost every day and night we conducted military operations; two of us on the team were almost always away on an ambush or daylight operation.  During the day we also provided advice and guidance for the civilian leaders.”

     The former warrior king provided some timely advice to the civil affairs audience:

“I would say, yes, weave yourself into the local society if it helps the mission, but do not become lost in it.  That is a danger.  Remember who you are, where you are going, and why you are going there.”

     He emphasized that modern diplomat warriors should know the language, the culture, the objective, the resources available, and respect the people in their area of operations; but he noted that a belief in the democratic ideal is also required to sustain diplomat warriors:

“…out there in those remote, unheard of villages around the world, in those lonely nights when no one seems to care, in those difficult times when the bullets fly and the bombs explode, in those days when the heat and bugs and the inefficiency of it all seem almost to have the victory; in those times that spirit within must still be able to guide you and to help you guide others.  You and those you have been sent to help must be able to see out there in front of you the gleam of freedom rising, the faint flicker of justice awaiting.  If you can help lead a people, even in small steps, toward those objectives you will have served your country and humanity well.”13

     The lessons of the former warrior king have been as relevant in Haiti as they were in Vietnam.  One Special Forces commander was described in 1994 as “the contemporary version of a Roman procurator, the sole authority over the lives of three hundred thousand people living under primitive conditions in a mountainous, isolated four-hundred-square-kilometer administrative district.”  In spite of many frustrations, Special Forces troops in Haiti have exemplified the spirit of the diplomat warrior:

They know why they’re in Haiti, even if the folks back home don’t.  Without guile or quixotic naivete, and with a growing, if not yet full, appreciation for the political and moral ambiguities of the mission, they say it: “We’re here to free the oppressed.”  De Oppresso Liber is the motto of the Special Forces.14          

     That motto exemplifies military legitimacy in operations other than war, and gives meaning to the national values of democracy, human rights, and the rule of law.  But as a leadership model the Special Forces soldier has been the exception rather than the rule.  During the Cold War most civil-military operations overseas were considered special operations in LIC, the domain of Special Forces, Civil Affairs, and Psychological Operations.  While new Army doctrine incorporates peacetime civil-military activities into conventional operations other than war, the Army leadership model and the paradigm of the soldier and the state have not kept pace with that doctrine.

The traditional paradigm of the soldier and the state and related concepts of military leadership and professionalism are based on a pure warrior ethic that calls for an unpolitical soldier, one clearly unsuited for civil-military operations in which political objectives predominate.  If military leadership is to be reconciled with the requirements of legitimacy in operations other than war, this paradigm must be changed.

     The author of the traditional paradigm is Samuel P. Huntington, the venerable Harvard professor who has described the current strategic environment as a clash of civilizations (see chapter 3, notes 9 & 10), an often hostile cultural environment that requires coordinated military, economic, political, and informational activities to achieve U.S. security objectives.  In such an operational environment military leaders must be able to bridge the formidable gap between military and political activities.

     While Huntington’s latest work implies the need for diplomat warriors in civil-military operations, his 1957 classic on The Soldier and the State minimized the importance of civil-military relations to military legitimacy, and described the military ethic as “basically corporative [collective] in spirit and fundamentally anti-individualistic.”15

     Huntington argued that civil-military relations should be minimal to avoid polluting the warrior spirit.  He was convinced that military professionalism depended upon military officers remaining isolated from the politics of the civilian society they served.  For Huntington, professionalism was defined by duty and loyalty to a uniquely military ideal: a robotic officer sworn to mindlessly obey hierarchical military authority, rather than a politically savvy officer who understood the principles and values of the Constitution and civil-military relations.16

     While advocating the segregation of military and civilian activities, Huntington recognized the danger of conflicting military and civilian values to military legitimacy–or, as he termed it–the equilibrium of objective civilian control.  For Huntington the unavoidable conflicts between an isolated military and civilian values were a price the military must pay to maintain the purity of its warrior ideal.  His hope was that the lack of civil-military relations would be compensated by a shift in civilian support for his military ethic.17

     If there were ever a trend of civilian values toward Huntington’s Cold War military ethic, it has since been reversed.  The end of the evil empire and defense budget constraints have upset the old equilibrium.  Change is certain, but if contemporary missions are any indication, change will continue to be in the direction of developing more civil-military capabilities such as those of Civil Affairs to balance traditional combat capabilities.  This trend is reflected in the new Army doctrine on operations other than war.

     Huntington was right about the need for an equilibrium between military and civilian values to ensure military effectiveness and legitimacy, but wrong in his predictions about changing civilian perceptions of military legitimacy.  To achieve the equilibrium necessary to accommodate both military power and legitimacy in the new strategic environment, military values and concepts of professionalism must accommodate changing and sometimes conflicting civilian attitudes and values.  The leadership paradigm of the diplomat warrior reflects a healthy balance of military and civilian values, a prerequisite for mission success in operations other than war.

     The diplomat warrior is a political soldier who must understand the predominance of political objectives and the need for public support to achieve them.  The diplomat warrior reflects the importance of civil-military relations to military legitimacy in operations other than war, where mission success requires that military leaders are knowledgeable in political affairs and work closely with civilians and foreign military personnel.  An unlikely advocate, German General Ludwig Beck, warned of the dangers of military leaders isolated from politics, even in wartime:

“‘He who follows a false tradition of the unpolitical soldier and restricts himself to his military craft neglects an essential part of his sworn duty as a soldier in a democracy.’  [Beck] warns that an officer corps that restricts itself to matters of craft may become indistinguishable from those Wehrmacht officers–honorable men by their own lights–who in doing their duty to the very end only propelled Germany that much further into the darkness.  And he challenges us to embrace a mature vision of professionalism, [in which soldiers] appreciate the role of politics broadly defined in motivating, defining, and guiding any genuinely effective military policy.”18

     These views contrast sharply with those of traditionalists who hold fast to the Huntington paradigm of the pure warrior ethic.  One traditionalist dramatized the danger of politicizing the military with a hypothetical military takeover, led by military zealots who had acquired an insatiable appetite for political power through extensive civil-military activities.  The protagonist, a colonel who resisted the coup, warned his friends of the dangers of politicizing the military: “Demand that the armed forces focus exclusively on indisputably military duties.”  The heroic colonel was in the mold of the pure warrior, isolated from the corrupting influence of civilian politics and values; he fit the Huntington paradigm of the (unpolitical) soldier and the state.19

     Another traditionalist was less subtle in warning that deteriorating civilian values could corrupt the pure values of military professionalism.  He saw civilian values as a direct threat to military values and issued a call to arms:

“The societal trends indicate a fundamental change in national values.  The country’s primary value-influencing institutions are promoting altered values for future recruits.  These altered values are significantly different than the Army’s values.  The Army must preserve its integrity as an institution by resisting any tendency to accommodate these changed values.”20

     If there is a danger to democracy, it will not come from a military integrated with the society it must serve, but from an isolated military elite.  An isolated warrior class is likely to develop authoritarian values that conflict with the libertarian values of the society it must serve.  If there were to be a military coup, it would likely be to conform society to the authoritarian military ideal.21

     But the remote threat of a military takeover is not the reason to change the traditional paradigm; it is the need for diplomat warriors in operations other than war.  The unpolitical soldier–the pure warrior–cannot fulfill the requirements for leadership in operations other than war.

NOTES

1. The diplomat warrior is described in Barnes, “Military Legitimacy and the Diplomat Warrior”, Small Wars and Insurgencies (Spring/Summer 1993), at pp 16-19.

2. Student Text, Military Law and Justice, (Required Readings in Military Science IV, Military Qualifications Standards I, Precommissioning Requirements, June 1992); joint proponents for the test publication are the Judge Advocate General’s School in Charlottesville, VA, and the Department of Law at the U.S. Military Academy.

3. See Peter Maslowski, “Army Values and American Values”, Military Review (April 1990), p 10.

4. See John E. Shephard, “Thomas Becket, Ollie North, and You: The Importance of an Ethical Command Climate”, Military Review (May 1991), pp 21, 26.

5. Anthony E. Hartle, “The Ethical Odyssey of Oliver North”, Parameters, Summer 1993, pp 28, 32, 33.  The Iran-Contra Affair is used as a case study on “covert war in peacetime” in chapter 10 of National Security Law, edited by Stephen Dycus et at. (Boston: Little, Brown and Company, 1990). 

6. See Barnes, “Military Legitimacy and the Diplomat Warrior”, supra note 1, pp 5, 8-11, 18, 19.

7. As to Eastern Europe, see Jacob W. Kipp, “Civil-Military Relations in Central and Eastern Europe”, Military Review (December 1992), p 27.  As to Latin America, see Gabriel Marcella, “The Latin American Military, Low Intensity Conflict, and Democracy”, Winning the Peace: The Strategic Implications of Military Civic Action, edited by John W. DePauw and George A. Luz, Strategic Studies Institute, U.S. Army War College, Carlisle, PA, chapter 4. 

8. William H. Riley, Jr., “Challenges of a Military Advisor”, Military Review, November 1988, p. 34.  General Riley’s article preceded Desert Storm so that General Shwarzkopf’s style of leadership was not considered.

9. David H. Hackworth, About Face (New York: Simon and Schuster, 1989), p 315.

10. Cecil B. Currey, “Edward G. Landsdale: LIC and the Ugly American”, Military Review, May 1988, p 50.

11. Ibid at pp 50-52.

12. See references at note 1 to chapter 2.

13. David Donovan is a pseudonym used by Dr. Terry Turner, the author of Once A Warrior King (N.Y.: Ballentine Books, 1985).  Dr. Turner spoke to CA personnel at the John F. Kennedy Center for Special Warfare and School at Fort Bragg, N. C. in July 1993.

14. Bob Shacochis, “The Immaculate Invasion”, Harper’s Magazine (February 1995). pp 44, 59.

15. Samuel P. Huntington, The Soldier and the State (The Belknap Press of Harvard University Press, Cambridge, MASS, 1957), pp 64, 70-94.

16. Ibid at p 84.

17. Ibid at pp 94 and 457. 

18. A. J. Bacevich, “New Rules: Modern War and Military Professionalism”, Parameters, December 1990, pp 12, 18, 19. 

19. Charles J. Dunlap, Jr., “The Origins of the American Military Coup of 2012”, Parameters (Winter 1992-92), pp 2, 14.

20. Robert L. Maginnis, “A Chasm of Values”, Military Review, February 1993, pp 2-11.

21. The danger of an emerging warrior class is discussed by Ralph Peters, “The New Warrior Class”, Parameters (Summer 1994), p 16.  In The Transformation of War, The Free Press (New York, 1991), Martin van Creveld extols warriors as those who love to fight: “they are only to happy to give up their nearest and dearest in favor of–war!” (p 227).

 

 

My Experience with the Rule-of-Law Mission in Iraq

Albert H. Manwaring, IV, Hamilton Pepper LLP, December 10, 2010

This article originally appeared in the December 2010 issue of The Journal of the Delaware State Bar Association, published by the Delaware State Bar Association. Copyright © Delaware State Bar Association 2010. All rights reserved. Reprinted with permission.

In the fall of 2009, I left my day job at Pepper Hamilton LLP and deployed to Iraq with my Army Reserve Civil Affairs Command. The civil service mission in Iraq is arguably the largest U.S.-lead reconstruction effort since the Marshall plan that followed W.W.II. While I did not plan to be a part of this civil service effort, nor fully realize its effect on my family and practice before my departure, my experience in Iraq with the rule-of-law mission was professionally rewarding. With my commercial law background, I am hopeful that I was able to add some value to this historic effort.

To prepare for my deployment to Iraq, I spent the first three months training at Ft. Dix, New Jersey. Although the change from the routine of my office was refreshing, my days at Ft. Dix were long and physical. I had begun my military career with Army basic training at Ft. Dix, and I often reflected how ironic it was that I was receiving this advanced soldier training some 20 years later, at the same place, near the end of my military career. I quickly realized – after hanging upside down in the seat of a military vehicle in the dark during roll-over training, and sparring with a burly soldier about half my age during hand-to-hand combat training – that war is a young man’s game and, physically, I was way past my prime.

Upon arriving in Iraq, I was assigned to serve as a rule-of-law officer in the Department of State’s Office of Provincial Affairs (OPA), which was located in the U.S. Embassy, Baghdad. OPA manages provincial reconstruction teams (PRTs), which are located in 16 of Iraq’s Provinces and contain members of the Department of State, Department of Justice, USAID, civil affairs members of the military, and other federal agencies, all working together to improve Iraq’s governance, economic, and rule-of-law sectors.

As an Army lawyer in OPA, I worked with attorneys on the reconstruction teams to support their rule-of-law practices in Iraq’s Provinces. I helped obtain funding for their rule-of-law projects, coordinated their efforts with military rule-of-law attorneys, and provided oversight of their work plans. In support of these efforts, I traveled frequently in Iraq’s Provinces with reconstruction team attorneys to meet with Iraqi judges and police, as well as prison, law school, and bar association representatives.

Although traveling outside of both the International Zone (formerly known as Green Zone) in Baghdad and our military bases in Iraq’s Provinces was, of course, more dangerous than working from my desk in the Embassy, interacting with Iraqi judges and lawyers was the most interesting and rewarding part of my job. To safeguard our movement, we traveled in armored military vehicles accompanied by substantial military security. Baghdad courts were always busy, and in that way, were not unlike our own New Castle County Courthouse, except for the part of combat soldiers, providing security with machine guns inside the court. Imagine walking into court personally armed and guarded by military security with machine guns. But, none of this force seemed ever to faze the Iraqi judges, who waited patiently for me to disarm and remove my body armor before beginning our conferences with the customary drinking of tea. In my engagements with the Iraqis, they were cordial, cooperative, and receptive to our help. Indeed, the enthusiasm of young Iraqi lawyers for the practice of law and their desire for improvements to Iraq’s rule of law was very promising.

My duties in OPA also included providing resources to reconstruction team attorneys concerning best rule-of-law practices. To preserve the knowledge, lessons, and history of our civil service effort in Iraq, the Department of State assembled a team that traveled to many of the reconstruction teams and military forces in Iraq’s Provinces to collect the histories, lessons learned, and best practices of our civil service effort. I was a part of this team, and subsequently, used the information collected to create a webpage, containing resources to support the U.S. rule-of-law community in Iraq.

Definitions of rule of law are often worded in broad terms that provide minimal insight into the scope of the rule-of-law mission in Iraq. Defining rule of law in terms of the six areas where our efforts were focused in Iraq is the most useful way to understand the rule-of-law mission. These six areas were colloquially referred to as courts, cops, corrections, corruption, commercial law, and community access to justice.

1. Courts: The primary focus in this area was judicial security, which was critical to fostering an independent, functional judicial system in Iraq. The U.S. rule-of-law community pushed very hard at the highest level in the Iraqi government for all judges to have security personnel assigned to guard them 24/7. After much effort, we were also able to provide many judges with weapons and ballistic vests to protect themselves. Judicial security efforts also included x-ray machines for courthouses, and renovations to courthouse entrances to make them safer for the judiciary. Judicial security efforts were unfortunately work in progress. Many judges had no security when they left the courthouse, or if they had security, the personnel were often the judge’s family or friends, who were untrained and unarmed.

2. Cops: Iraq’s criminal justice system relies on defendant confessions, which leaves opportunities for injustice. Therefore, many of our law enforcement efforts were focused on providing Iraqi judges, prosecutors, and police with training and equipment to collect and analyze forensic evidence, such as ballistics, fibers, and documents, and then to educate them on how to use this evidence to prosecute cases in Iraq’s criminal courts. Nothing happens in Iraq without Iraqi “buy in.” Hence, many conferences were held to educate Iraqi judges, prosecutors, and police on the reliability and efficacy of forensic evidence to successfully prosecute criminal cases.

3. Corrections: The U.S. Department of Corrections has done a good job of training Iraqi corrections officers in prisons for convicted defendants to ensure compliance with international corrections standards for security, housing, food, and medical care. But, the Iraqi pretrial detention facilities were often plagued by overcrowding. The U.S. rule-of-law community came to the conclusion, however, that merely building more prisons was not the answer, but rather, we needed to help the Iraqis increase efficiencies in the processing of criminal cases through their criminal justice system. We were hopeful that our on-going implementation of case tracking software and computers in Iraqi courthouses will allow for more efficient tracking of pretrial detainees, and expedite the prosecution of their criminal cases to alleviate overcrowding in Iraq’s pretrial detention facilities.

4. Corruption: In the area of anti-corruption, rule-of-law attorneys worked to train Iraqi Commission of Integrity officials on sophisticated white collar crimes, such as money laundering, fraud, and other financial crimes. We also provided these officials with basic resources, such as vehicles, office furniture, and equipment to facilitate their investigation and prosecution of corruption.

5. Commercial Law: Due to the security situation in Iraq, criminal law efforts to prosecute insurgents have historically received most of the attention in the U.S. rule-of-law community. During my tour in 2010, civil or commercial law began to receive more attention as a key to fostering private investment to improve Iraq’s economy. Because of my commercial law background, I had the opportunity to work with the U.S. Department of Commerce’s Commercial Law Development Program. Many of the efforts were aimed at educating Iraqis to obtain their acceptance of the further development of commercial law in Iraq. For example, the Commercial Law Development Program sponsored educational programs on international arbitration under the New York Convention to address issues with the enforceability of civil judgments in Iraq, hydrocarbon legislation training, and programs to educate Ministry of Oil attorneys on key issues in petroleum licensing and exploration contracts with oil companies.

6. Community Access to Justice: This work included cooperation and outreach with law schools and bar associations—in Iraq and through partnerships between Iraqi and U.S. law schools—to develop Iraqi law school curriculum, continuing legal education programs, and legal aid clinics for indigent criminal defendants.

In sum, the rule-of-law effort is one of our greatest success stories in Iraq. While there are continuing challenges in judicial security, corruption, confession-based prosecutions, overcrowding in prisons, and enforceability of civil judgments, rule of law is one of the keys to Iraq’s success, and there is much promise for the future of Iraq.

Albert H. Manwaring IV
Phone: 302.777.6514
Fax: 302.421.8390
manwaringa@pepperlaw.com

The views expressed in this article are the author’s, and do not reflect the positions of the Department of State, the Department of Defense, or the U.S. Army. Mr. Manwaring manages Pepper Hamilton’s litigation in its Wilmington, Delaware office, and concentrates his practice in corporate, securities, and toxic tort litigation. He is a Lieutenant Colonel in the Army Reserves, where he serves as a JAG officer in the 352nd Civil Affairs Command located in Fort Meade, Maryland.

The material in this publication was created as of the date set forth above and is based on laws, court decisions, administrative rulings and congressional materials that existed at that time, and should not be construed as legal advice or legal opinions on specific facts. The information in this publication is not intended to create, and the transmission and receipt of it does not constitute, a lawyer-client relationship.
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