Saving Democracy Abroad

By Robert M. Perito and Donald J. Planty PRISM Vol. 8, No. 2

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Staff Sgt. Edgar Castro, joint security forces, explains crime scene processing paperwork to students from the La Paz Police Academy during a training course here. The crime scene processing class is one in a series of classes taught this year, with other lessons involving handcuff procedures, high-risk traffic stops and riot control. (U.S. Air Force photo/Tech. Sgt. Sonny Cohrs)
An airman assigned to Joint Task Force Bravo—Joint Security Forces in Honduras explains crime scene processing to Honduran police. The instruction is part of a series of classes that teach handcuff procedures, high-risk traffic stops, and riot control. (U.S. Air Force/ Sonny Cohrs).
Staff Sgt. Edgar Castro, joint security forces, explains crime scene processing paperwork to students from the La Paz Police Academy during a training course here. The crime scene processing class is one in a series of classes taught this year, with other lessons involving handcuff procedures, high-risk traffic stops and riot control. (U.S. Air Force photo/Tech. Sgt. Sonny Cohrs)
An airman assigned to Joint Task Force Bravo—Joint Security Forces in Honduras explains crime scene processing to Honduran police. The instruction is part of a series of classes that teach handcuff procedures, high-risk traffic stops, and riot control. (U.S. Air Force/ Sonny Cohrs).
An airman assigned to Joint Task Force Bravo—Joint Security Forces in Honduras explains crime scene processing to Honduran police. The instruction is part of a series of classes that teach handcuff procedures, high-risk traffic stops, and riot control. (U.S. Air Force/ Sonny Cohrs).
Photo By: Tech. Sgt. Sonny Cohrs
VIRIN: 071026-F-5542C-2011

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Mr. Robert Perito is a Senior Peace Fellow at the Public International Law and Policy Group and former Director of the Center for Security Sector Governance at the U.S. Institute of Peace. Ambassador Donald Planty is a Senior Advisor to the Albright Stonebridge Group and former U.S. Foreign Service Officer and U.S. Ambassador to Guatemala.

Democratic governments are under siege around the world from forces that threaten the basic principles of representative government—freely elected leaders, democratic institutions, and the rule of law. In countries as diverse as Azerbaijan, Cambodia, and Egypt, authoritarian leaders have “snuffed out civil society, suborned or faked elections, asphyxiated free expression, and repressed human rights.”1 Populist regimes are consolidating power in Europe and Latin America where citizens have lost faith in political institutions and rejected conventional leaders. Centralized authoritarian governments in Russia and China have put forward an alternative autocratic governance model and are striving for world leadership. Meanwhile, democracy in the United States has taken a dangerous turn.

There are many reasons for democracy’s decline. An important factor has been the corresponding decline in respect for the rule of law, which provides the superstructure of democracy.2 Democracy focuses on how governments are selected; the rule of law deals with how political power is exercised. Rule of law requires that all citizens, including lawmakers and government officials, are similarly accountable—a stark contrast to dictatorship, autocracy, and oligarchy, where those in power are beyond the law’s purview.3 The rule of law is based upon four democratic principles:

  • accountability: the law applies equally to government and private actors;
  • justice: the law protects personal security, property, and human rights;
  • transparency: laws are formulated and enforced through an open and commonly accepted process; and
  • accessibility: peaceful dispute resolution is provided by impartial and competent authorities who reflect the composition and values of the communities they serve.4

An indication of the importance of the rule of law for maintaining democracy is the fact that the criminal justice system and law enforcement authorities are primary targets for despotic regimes. Romania’s parliament curtailed the powers of the country’s anticorruption agency, weakened the independence and authority of the justice sector, and called for changes in the criminal code that would shield corrupt politicians and limit the ability of police and prosecutors to investigate the country’s endemic corruption.5 Poland’s populist Law and Justice Party has won elections by demonizing opponents and scapegoating minorities. On October 10, 2018, the party completed a hostile takeover of the judiciary by appointing 27 new supreme court justices over the objections of the European Union (EU). Previously the party had taken control of the constitutional tribunal and the national council of the judiciary.6 In Honduras, President Juan Orlando Hernandez was reelected after supreme court judges he appointed lifted the constitutional ban on multiple presidential terms, and vote counting was suspended when the opposition candidate appeared to be ahead. After the election, the Honduran congress revoked the attorney general’s authority to investigate cases of the theft of public funds by government officials, including 60 current and former legislators.7

Afghanistan National Police (ANP) recruits listen to instructors before firing their AK-47 rifles at a range near the regional training center for the ANP near Gardez, Afghanistan, March 17, 2007. (U.S. Army photo by Staff Sgt. Michael Bracken) (Released)
In March, 2007 Afghan National Police recruits listen to instructors before firing their AK-47 rifles. Despite extensive training and equipping, at the time, many have questioned whether the Afghan National Defense and Security Forces will be able to hold the ground when U.S. forces departed. (U.S. Army/ Michael Bracken)
Afghanistan National Police (ANP) recruits listen to instructors before firing their AK-47 rifles at a range near the regional training center for the ANP near Gardez, Afghanistan, March 17, 2007. (U.S. Army photo by Staff Sgt. Michael Bracken) (Released)
070317-A-7096B-008
In March, 2007 Afghan National Police recruits listen to instructors before firing their AK-47 rifles. Despite extensive training and equipping, at the time, many have questioned whether the Afghan National Defense and Security Forces will be able to hold the ground when U.S. forces departed. (U.S. Army/ Michael Bracken)
Photo By: SSG MICHAEL BRACKEN
VIRIN: 100317-A-7096B-2012

U.S. Support for the Rule of Law

Since the end of World War II, rule of law assistance has been a standard feature of U.S. development aid abroad. In this century, the United States has spent billions of dollars in Iraq and Afghanistan to promote the rule of law and hundreds of millions more in other crisis states. Yet these programs have largely failed to support the maintenance of lawful democratic governments and in some cases have contributed to their decline. There are both organizational and ideological reasons for the lack of effectiveness of U.S. rule of law assistance. Interviews conducted with two dozen officials in the State, Defense, and Justice departments and the U.S. Agency for International Development (USAID) identified numerous shortcomings in the manner in which U.S. rule of law programs are funded, administered, and implemented.8 These failings help explain why U.S. programs are largely ineffective abroad despite the expenditure of considerable effort and financial resources.

First, U.S. rule of law assistance lacks a common policy, doctrine, and strategy. There are no agreed upon goals and objectives. There is no central administrative coordinating mechanism. Instead, agencies offer a collection of projects that reflect the annual choices of Washington policymakers, embassy officers, and partner governments. Second, there is no confirmed number for the total amount of money the United States spends on rule of law assistance each year. Funding authorities are spread among a collection of congressional committees and legislative funding sources. Money is allocated to the State and Defense departments and USAID, which reallocate the money to implementing agencies. These agencies in turn reallocate the money to nongovernmental organizations (NGOs) and commercial contractors. This multilayered process defeats accurate accounting, results in high administrative costs, and delays program implementation. Third, Washington agencies have a shortage of personnel with law enforcement and judicial experience and regional, cultural, and linguistic expertise. Where experts are present, they serve as advisors to generic program officers who are responsible for program selection, project design, and funding allocation.

In 2010, the Barack Obama Administration realigned priorities for rule of law assistance at USAID by creating the Center of Excellence for Democracy, Human Rights, and Governance (DRG).9 The center emphasized free and fair elections, political party development, human rights, and labor and gender protection. The Rule of Law Office merged into a new Office of Governance and Rule of Law, which supported activities to improve the accountability, transparency, and responsiveness of governing institutions and to promote legal and regulatory frameworks aimed at improving security and law enforcement. The motivation behind this change was in part ideological, but in larger part it reflected a major reduction in available financial resources.

During the Obama Administration, some 85 countries received rule of law assistance. Total annual funding dropped from $1.417 billion in 2010 to $781 million in 2014 to $683 million in 2015.10 Presidential initiatives took much of USAID’s budget. President Obama continued George W. Bush’s President’s Emergency Plan for HIV/AIDS Relief and began his own initiatives: the Feed the Future program, which sought to increase global agricultural production, and the Global Development Lab, which encouraged the use of science, technology, and innovation to promote development. In the field, larger USAID missions used discretionary funds to continue traditional rule of law programming. Smaller missions were forced to choose between rule of law programs, which tended to be expensive, and numerous smaller projects in other areas. The drop in funds limited staffing, often to a single program officer responsible for managing all of USAID’s accounts.11

As a result of the bureaucratic reorganization and reduction in funding, USAID effectively ceded responsibility for rule of law programming to the Department of State.12 This led to the use of rule of law programing as a national security tool rather than a development tool. U.S. assistance that militarized police and border guards improved the ability of partner country security forces to conduct counternarcotics and counterterrorism operations. For example, the U.S. Central American Regional Security Initiative provided $642 million in weapons, equipment, and training to regional security forces to fight drug and arms trafficking, gangs, and organized crime.13 Most of this assistance, however, failed to address the underlying fragility of rule of law at the community level, where gangs and traffickers thrived, or the culture of impunity that pervaded security and justice institutions. At the same time, the State Department’s Bureau of Counterterrorism and Countering Violent Extremism emerged as an important provider of rule of law assistance. The Bureau hired its first rule of law advisor and began providing hundreds of millions of dollars in assistance to train rapid reaction police units, foreign prosecutors to try terrorists’ cases, and prison staff to prevent radicalization and to rehabilitate terrorist prisoners.14 The Obama Administration placed an interagency rule of law coordinator at the State Department. This experiment failed because the coordinator was given limited authority, no project funding, and no staff, and had little ability to influence rule of law policy and programs. An earlier effort by the Bill Clinton administration to create a rule of law coordinator had failed for the same reasons.15

U.S. programs continued to follow a state-centric, top-down, and technocratic approach aimed at transplanting U.S.-style institutions into recipient states. The Justice and Security Assistance section of the 2018 interagency Framework for Maximizing the Effectiveness of USG Efforts to Stabilize Conflict Affected Areas noted that U.S. “justice sector programming in conflict-affected areas often focused heavily on promoting formal criminal justice institutions based on Western domestic experiences.”16 This reiterated earlier criticism voiced by Carnegie Fellow Rachel Kleinfeld that the United States advocated top-down reform of foreign government judicial institutions. U.S. programs trained lawyers and jurists in technical skills and improving court administration. Programs for judges covered plea bargaining, alternative sentencing, and international crimes such as money laundering. Kleinfeld pointed out that this approach to legal reform resulted in institutional modeling where local laws and judicial institutions were modified to more closely resemble those of the United States.17

Challenges for U.S. Rule of Law Assistance

These shortcomings are reflected in all U.S. rule of law assistance programs. However, they have been particularly harmful in programs in corrupt authoritarian states, primarily in Central and Eastern Europe, where populist authoritarian regimes have emerged and the United States is engaged because of political, geostrategic, and humanitarian considerations. This has also been true in two other categories of states where democracy and the rule of law are under attack: states in the northern tier of Central America that are victims of extreme levels of criminal violence and the source of migrant flows toward our southern border, and states in Central Asia, North Africa, and the Sahel where Islamist terrorist are attempting to impose extreme versions of shariah law and U.S. military forces are training local security forces.

Viktor Orbán, the Prime Minister of Hungary, during a European parliament debate in 2012 on the political situation in Hungary. Passions ran high in the chamber as several political group leaders raised concerns not only over specific legal and constitutional provisions in Hungary, but also what they saw as a wider undermining of democratic values in that country. (© European Union 2012 EP/Pietro Naj-Olear)
Viktor Orbán, the Prime Minister of Hungary, during a European parliament debate in 2012 on the political situation in Hungary. Passions ran high in the chamber as several political group leaders raised concerns not only over specific legal and constitutional provisions in Hungary, but also what they saw as a wider undermining of democratic values in that country. (© European Union 2012 EP/Pietro Naj-Olear)
Viktor Orbán, the Prime Minister of Hungary, during a European parliament debate in 2012 on the political situation in Hungary. Passions ran high in the chamber as several political group leaders raised concerns not only over specific legal and constitutional provisions in Hungary, but also what they saw as a wider undermining of democratic values in that country. (© European Union 2012 EP/Pietro Naj-Olear)
Viktor Orbán, the Prime Minister of Hungary, during a European parliament debate in 2012 on the political situation in Hungary. Passions ran high in the chamber as several political group leaders raised concerns not only over specific legal and constitutional provisions in Hungary, but also what they saw as a wider undermining of democratic values in that country. (© European Union 2012 EP/Pietro Naj-Olear)
Viktor Orbán, the Prime Minister of Hungary, during a European parliament debate in 2012 on the political situation in Hungary. Passions ran high in the chamber as several political group leaders raised concerns not only over specific legal and constitutional provisions in Hungary, but also what they saw as a wider undermining of democratic values in that country. (© European Union 2012 EP/Pietro Naj-Olear)
Photo By: Pietro Naj-Oleari
VIRIN: 120118-O-KG403-2013

Corrupt Authoritarian States

In corrupt authoritarian states in Central and Eastern Europe, new populist rulers have used xenophobic rhetoric and crony capitalism to seize power. They have also been indifferent to the need for checks on the power of the majority, particularly legal constraints that are central to the rule of law. These regimes have morphed into organized criminal enterprises that have seized control of banking, natural resources, and other economic assets and have systematically stolen public funds on a vast scale. Misappropriation of government revenues and exploitation of national resources retard economic growth, allow infrastructure to crumble, and weaken national power and resolve. They also spawn popular opposition as citizens come to view the government as a criminal racket rather than a legitimate provider of goods and services.19

These regimes divide the population between those who benefit from the government’s patronage system and those appalled by the spectacle of political elites flaunting their ill-gotten gains. They suppress civil society groups and the media, politicize the police, and co-opt judiciaries by providing access to illicit revenues in return for regime loyalty. These regimes intimidate parliaments and create bureaucracies based on patronage rather than merit.20 They hobble state institutions and politicize their security services. They also consciously enable violent groups in order to protect their privileges and maintain control. Providing immunity to perpetrators creates conditions where societies develop a culture of violence that is impossible to control.21

On September 13, 2018, the European Parliament initiated disciplinary proceedings against Hungary for undermining the EU’s rules on democracy, civil rights, and corruption.22 Hungary’s prime minister Victor Orbán describes Hungary as an “illiberal democracy,” citing authoritarian regimes in Russia and Turkey as models. His right-wing Fidesz Party controls all branches of government, including the judiciary. The party has amended the constitution to have judges appointed by a single person; experienced judges have been replaced with apparatchiks. Special courts overseen by the justice minister now hear cases concerning the government, taxation, and elections.23 An historically independent media was silenced by heavy fines on outlets deemed biased against the government. Orban’s program of authoritarian capitalism has directed lucrative contracts to his cronies.24 In December 2018, parliament adopted what protesters called a “slave labor law” that compelled workers to perform 400 hours of overtime without compensation. The action sparked massive, sustained street protests that also demanded restoration of an independent judiciary and media.25

Some experts argue that liberal democracy is resilient and will ultimately survive populism. Once in power, however, autocratic regimes can alter democratic institutions to the point where they may never fully recover. Biased and corrupt judiciaries and security services, weakened parliamentary oversight, and flawed election processes may prove impossible to fully reform. Populists may discredit the media through outright attacks, the introduction of false news, and the spreading of conspiracy theories to the point where information sources are no longer trusted by voters. They can also erode faith in democracy as a political system so that citizens lose confidence and more readily accept authoritarian rule. Even if these regimes are ousted, they may retain substantial blocks of support, narrowing the options for reformers by threatening to return to power.26

In corrupt authoritarian regimes, U.S. rule of law assistance programs have been an early victim. In Azerbaijan, President IIham Aliyev has held power since 2003 when he succeeded his father, Heydar Aliyev, a former Soviet KGB officer. In interviews, opposition figures and political activists agreed that the absence of the rule of law was directly linked to the demise of Azerbaijani democracy. Aliyev nominates judges to the constitutional court, the supreme court, and the economic court. Verdicts are dictated by the president, and there is no judicial independence. Judges often apologize for their decisions, explaining that orders came from higher authorities.27 The government has disbarred human rights lawyers, jailed journalists, and closed independent media outlets. Amnesty International has documented 158 political prisoners.28 USAID rule of law assistance programs were withdrawn; the National Democratic Institute and the International Republican Institute left the country because of government restrictions on working with opposition political parties.29 Numerous civil society leaders said the international community had failed Azerbaijan. They believed the Council of Europe would demand that Baku meet the council’s democratic standards, but the rule of law deteriorated further. Most believed the United States and Europe ignored Azerbaijan’s human rights violations because of the country’s oil reserves, strategic location between Iran and Russia, and iron-fisted control of its Shiite population.30

Central America

The northern tier states of Central America—Guatemala, El Salvador, and Honduras—occupy a strategic geographical space between North and South America. They form a physical funnel on the Central American isthmus for illicit drugs, migrants, and contraband to flow through Mexico to the United States. A reverse flow of weapons, stolen cars, laundered cash, and deported migrants, some with criminal records, travels south. The movement of goods in both directions takes advantage of porous land borders, clandestine airstrips, unpatrolled rivers, and open sea lanes. This intense level of illegal activity generates billions of dollars in unlawful revenue and extreme violence that have overwhelmed law enforcement, created a climate of impunity, and undermined democratic institutions.

The rule of law in Central America historically has been weak due to the absolutism of Spanish colonial rule and the caudillo tradition—the man on horseback as authoritarian ruler. While Central American countries established constitutional democracies based on the U.S. model after their independence from Spain, frequent constitutional change—including extra-constitutional seizures of power—has weakened democratic institutions and interfered with the development of the rule of law. The tradition has produced highly centralized systems of government that are corrupt, nontransparent, and unable to provide basic services to the population. Legislatures are weak and dysfunctional, judiciaries are corrupt and incompetent, and security forces are exploitative and abusive.

During the past three decades, the United States has attempted to improve the rule of law in Central America and to stanch the northward movement of people and goods, with little success. U.S. policy has focused mostly on stopping narcotics smuggling and has only tangentially dealt with the underlying problems: weak government institutions, pervasive official corruption, and low levels of national investment in health, education, and welfare. While the totality of U.S. Government programs appears impressive, the programs have had little impact on the prevailing rule of law climate; the whole is less than the sum of its parts. One reason is the absence of a strategic plan for implementing U.S. rule of law assistance for the region. Lack of a regional approach allows problems to bleed from one country to another. Without a holistic interagency and regional approach, the transformation of rule of law institutions is unlikely. Contractors implement all USAID and most of the State Department’s Bureau of International Narcotics and Law Enforcement Affairs (State/INL) programming. A major USAID evaluation published in late 2017 concluded that programming is producing limited results and that several programs are having no impact at all.31

Despite the generally grim conditions, reformers—political leaders, businessmen, NGOs, and civil society representatives—still exist in all three countries but are not sufficiently organized or funded to mount a sustained challenge to the corrupt system. U.S. rule of law assistance does support these reform elements with financial and material resources, but reformers say that U.S. programs are neither sufficiently comprehensive nor durable enough to overcome corruption and strengthen institutions. In some cases, U.S. assistance has perpetuated the status quo by allowing corrupt regimes to use foreign assistance to avoid a total collapse while diverting national resources to corrupt purposes. NGOs and academic experts stress that U.S. rule of law programs are neither strategically focused nor significant enough to reverse the decline in democratic government and the rule of law; there are problems with both coherence and magnitude.32

South Asia, North Africa, and the Sahel

In an arc from Pakistan to Mauritania, popular aspirations for democracy generated by the Arab Spring disrupted dictatorships, but autocrats clung to power, and civil wars have destroyed Iraq, Syria, Libya, and Yemen. Initial hopes have been replaced by the popular recognition that regional governments are not coping with crime and terrorist violence. This growing awareness is based on revelations of government corruption and the use of terrorist threats to justify crackdowns on political opponents; the inability of security forces to prevent Islamist terrorist groups from seizing territory and striking high-profile targets; and the success of terrorists’ appeals to radicalized youth to join their cause.33 The most extreme example has been the Islamic State, which established its despotic rule in Syria, Iraq, and Libya before being driven out by local militias backed by U.S. Special Forces and coalition air support.34

Islamist terrorists—jihadis—reject the nation-state, democracy, and Western conceptions of the rule of law as creations of man and not god. They condemn all legislative law from constitutions to enabling regulations that are made by people in favor of Koranic law, which was divinely inspired and perfect by definition. They also reject the benefits that modern societies see in the legislative process: open debate, presentation of differing policy prescriptions, adjudication by independent jurists, and unbiased enforcement of law by fair-minded governments. Democracy is rejected on similar grounds. It is a manmade system of government and, therefore, unacceptable to those who follow god’s will as they understand it. They also reject the institution of the sovereign, secular state and all its related institutions and processes in favor of a ruthless struggle to reestablish a theologically based caliphate that will control the Sunni Islam world. This rejection of the sovereign state extends to the modern international state system, international law, humanitarian law, and the Geneva Conventions.35 The impact of Islamist terrorism and the inadequacy of U.S. rule of law assistance are evident in states as varied as Pakistan, Tunisia, and Mali in which U.S. assistance has been significant but largely ineffective.

Since September 11, 2001, Pakistan has been a frontline state in the U.S. global war on terror, a sanctuary for al-Qaeda and Afghan Taliban leaders, and the site of a growing domestic insurgency. At the same time, Pakistan has served as a major transit and processing center for opium and heroin from Afghanistan. In fiscal year (FY) 2016, Pakistan received $255 million in U.S. foreign military financing to support military counterterrorism operations in areas bordering on Afghanistan.36 In addition to military aid, Pakistan’s police and civilian security forces received substantial U.S. security assistance funded by State/INL. Programs implemented through the U.S. Justice Department’s International Criminal Investigative Training and Assistance Program (ICITAP) included training on investigations, forensics, modern police practices, and improving police-community relations.37 ICITAP created model police stations in metropolitan areas and built demonstration public reception centers at police stations in Islamabad.38 State/INL’s broad counternarcotics assistance portfolio included programs to support law enforcement, crop control, and demand reduction.39 In FY 2015, USAID had a robust, $72.9 million Democracy and Governance program in Pakistan aimed at strengthening government institutions and civil society and protecting individual rights. The rule of law portion of the budget, however, was only $300,000, which was devoted to public awareness campaigns, judicial training, and assisting civil society.40

In Pakistan, interviews with a cross-section of police officers, judicial officials, and civil society representatives showed that Pakistanis view U.S. rule of law assistance programs as well intentioned but generally irrelevant. U.S. pilot programs that create model police stations, introduce computers, or deliver forensic training are helpful but reach limited numbers and are not sustained by Pakistani government investment. Interviewees viewed U.S. programs that violate Pakistani cultural norms as counterproductive. They noted that the United States fails to identify, or simply ignores, the structural problems that are the source of police and judicial corruption and malpractice in Pakistan. Informed observers argued that the United States should cease trying to make Pakistani rule of law institutions resemble their American counterparts. Instead, the United States should use its political and diplomatic leverage to promote programs that influence the political dynamics and power relationships that prevent reform.41

In North Africa and the Sahel’s vast ungoverned spaces, terrorist groups have joined with organized criminal networks to turn historic caravan routes into trafficking corridors for narcotics, weapons, and migrants.42 Smuggling networks have seized on regional instability, grinding poverty, and the lack of opportunity to become deeply entrenched in local economies, making them difficult to dislodge. Impaired by growing instability, regional states are increasingly unable to deliver basic government services. Autocratic rule and endemic corruption have left government institutions bereft of legitimacy as alienated citizens are frustrated by declines in healthcare, educational opportunities, and living standards.43

In December 2017, the United Nations (UN) Secretary General reported that the security situation in Mali had worsened and that terrorist attacks against UN and Malian security forces had increased. Terrorist groups had improved their capacity and expanded their areas of operations.44 Mali became the deadliest UN mission in history with the deaths of 190 peacekeepers.45 International concern increasingly focused on the central portion of the country. Since 2016, more than 12,000 people have been displaced, 287 civilians killed, and 685 schools closed. The involvement of Islamist extremist groups in intracommunity conflicts between Fulani herders and Dogon farmers contributed to rising instability. State agents such as local administrators and judges have withdrawn. Radical armed groups have asserted control over increasingly large areas, enforcing extremist religious dogma, threatening civilians with violence if they cooperate with Malian authorities, and engaging in violent reprisals when faced with resistance.46

There is much that a U.S.-led coalition of the United Nations and donor governments could do to assist the Malian government in reversing the expansion of terrorist groups across northern and central Mali.47 Firmly establishing and fortifying the rule of law in the region would be an important step toward this goal. Diplomatic pressure would be necessary to prevent Malian authorities from employing their traditional strategy of organizing pro-government tribal factions and pitting them against anti-government ethnic rivals. International support would be essential for outreach to regional elites and for organizing conferences on the region’s future. Technical assistance with organizing a new territorial police force would be required, along with training and equipment. U.S. funding, training, and political support would be required to energize traditional justice mechanisms and begin to return the formal justice system to the region.

This would require refocusing the current Bamako-centric, U.S. rule of law assistance program that is engaged in a number of initiatives without focusing on issues that are critical for Mali’s national survival. Current U.S. programs in Mali include a project to help the Mali police develop a personnel resources management manual; a project to set standards for hiring legal professionals and improving the justice ministry’s capacity to manage the court system; a project to organize a Malian national security council and an interagency crisis management capability; pilot police-community dialogues, a program to identify the training needs of judges and court personnel; and a program to train prison staff and prevent prison escapes.48

A New Approach to U.S. Rule of Law Assistance

Given the growing threat to democratic governments, a new strategically focused approach to U.S. rule of law assistance is required. This approach would acknowledge that corrupt authoritarianism, international organized crime, and Islamist terrorism share common characteristics and often cooperate to subvert governments and gain political power. They convert governing institutions into Mafia-like structures to divert public resources to benefit the ruling elite. They exploit illicit revenue streams from trafficking in narcotics, weapons, and migrants, the sale of artifacts, and the expropriation of national resources for their own purposes. They mask their activities with nationalist, populist, or religious rhetoric to recruit supporters and dissuade opponents. They transform the judicial system—police, courts, and prisons—into instruments of repression that protect and ensure continued control by the ruling elite. Rule of law should be elevated to a strategic objective in a new national security strategy; that would encourage development of coherent policy guidance for such assistance worldwide.

Under this approach, establishing the rule of law would be viewed as a political process supporting both national security and development objectives. It would involve a normative system of accepted principles and institutions under which the exercise of power is regulated and constrained and conflicts are resolved by nonviolent means.49 It would focus on governance and the use of political and diplomatic power to reform and empower judicial sector institutions. It would enhance traditional justice mechanisms in areas where they are the primary instruments for peaceful dispute resolution. It would establish political and programmatic priorities and marshal resources to achieve defined goals. Implementing this new approach would involve:

  • A high-level rule of law assistance coordinating mechanism. Implementing this approach would require a National Security Presidential Memorandum that would establish a National Security Council (NSC)–directed, interagency, rule of law assistance policy process. The process would be led by an NSC-chaired policy coordinating committee (PCC) responsible for policy formulation, program and project selection, and funding allocation. The PCC would emphasize the essentially civilian nature of rule of law institutions but recognize the importance of Defense Department and U.S. military involvement, especially in areas such as border control and coordination of cross-border security initiatives. The PCC would develop results-based systems to evaluate rule of law programs. It would formulate a strategy for engaging with Congress and soliciting its support for this initiative.
  • A strategic policy, doctrine, and plan for U.S. rule of law assistance. Following the precepts of the presidential directive, the PCC would prepare a U.S. rule of law assistance policy, doctrine, and strategy with defined goals and objectives. The new policy would recognize the political nature of development assistance and utilize U.S. political and diplomatic leverage to advance the rule of law. It would focus on institutional development and capacity building of supervising institutions and carry this focus over into training and equipping of police, judicial, and corrections personnel. It would empower traditional justice systems in countries where they are relied upon for nonviolent dispute resolution. The new policy would seek to build on locally inspired, whole-of-society solutions that reflect popular support.
  • Recruitment of a cadre of experienced rule of law professionals to supervise and implement U.S. assistance programs. Implementing the new approach would require recruiting a cadre of senior government personnel with an understanding of the political, economic, and social dynamics in target countries and of how legal, law enforcement, and corrections expertise can be translated into successful rule of law programs. This would ensure that programs are conceived and managed in the context of U.S. national security interests. It would also reduce dependence upon NGOs and commercial contractors for program implementation and evaluation.

This new approach would be undertaken with a sense of urgency. As national security experts Anthony Blinken and Robert Kagan have noted, we:

face an increasingly dangerous world that looks more like the 1930s with populists, nationalists and demagogues on the rise, autocratic powers growing in strength; Europe mired in division and self-doubt and democracy under siege and vulnerable to foreign manipulation.50

In crisis states, democratic activists and rule of law advocates are facing challenges. These dedicated people still look to the United States for inspiration, leadership, and intelligent, practical, and sustained support. We fail them at our own peril.

Promoting the rule of law abroad is in the best interest of the United States. Historically, our democratic values have been the key to building America’s geopolitical power. The global system of democratic alliances and institutions based upon the rule of law has improved material conditions and brought peace and prosperity abroad. Given the current challenges from authoritarianism, international organized crime, and Islamist terrorism, it is ever more urgent that we utilize the power of core American values to promote U.S. national security interests. Going forward, the United States should treat support for the rule of law as a strategic priority that is integrated with our other national security goals. By doing so, we will provide a compelling alternative to models offered by our competitors and secure the benefits for ourselves and others.51 PRISM

Notes

1 Editorial Staff, “The Authority of Democracy,” Washington Post, April 18, 2018, <www.washingtonpost.com/opinions/leaders-worldwide-are-falling-for-a-deadly-illusion/2018/04/18/9b598bca-4328-11e8-8569-26fda6b404c7_story.html?utm_term=.44d81dd46eee>.

2 “Rule of Law and Democracy: Addressing the Gap Between Policies and Practices,” UN Chronicle 49, no. 4 (December 2012), <unchronicle.un.org/article/rule-law-and-democracy-addressing-gap-between-policies-and-practices>.

3 “Impact of the Rule of Law: Rule of Law and Democracy,” Rule of Law Alliance, <rolalliance.org/rol-alliance-impact/rule-of-law-democracy/>.

4 “What is the Rule of Law? Four Universal Principles,” World Justice Project, <worldjusticeproject.org/about-us/overview/what-rule-law>.

5 Editorial Board, “Democracy Threatens to Backslide in Romania,” Washington Post, December 29, 2017, <www.washingtonpost.com/opinions/global-opinions/democracy-threatens-to-backslide-in-romania/2017/12/29/71dc4308-eb37-11e7-9f92-10a2203f6c8d_story.html?utm_term=.2a3a2a7668bb>; Kit Gillet, “Romania Braces for President’s Decision on Bills Seen as Weakening Judiciary,” New York Times, December 30, 2017, <www.nytimes.com/2017/12/30/world/europe/romania-corruption-iohannis.html>.

6 Gregg Witte, “Judges Boycotting Poland’s Supreme Courts Posts,” Washington Post, August 21, 2018, <www.washingtonpost.com/world/europe/polands-judges-boycott-supreme-court-posts-accusing-the-government-of-a-takeover-bid/2018/08/17/8a9a5590-943a-11e8-818b-e9b7348cd87d_story.html?utm_term=.78ec214c3fad>.

7 Jeff Ernest and Elisabeth Malkin, “Amid Protests, Honduran President is Sworn in for 2nd Term,” New York Times, January 27, 2018, <www.nytimes.com/2018/01/27/world/americas/honduras-president-inauguration-protests-juan-orlando-hernandez.html>.

8 Interviews were conducted in 2017–2018 in Washington in person and by phone with serving officials who are directly engaged in administering rule of law assistance programs. These officials were unwilling to be identified by name and exact title citing uncertainty about the administration’s attitude toward foreign assistance in general.

9 U.S. Agency for International Development, “Democracy, Human Rights and Governance Strategy,” <www.usaid.gov/democracy-human-rights-and-governance-strategy>.

10 Karen Hall, “Mitigating Administrative Barriers to Successful International Rule of Law Reform,” William and Mary Policy Review 9, no. 2 (2018), <static1.squarespace.com/static/59c0077a9f745650903ac158/t/5ca41d11eb3931713a4e4419/1554259218897/Hall+Mitigating+Barriers+.pdf>.

11 Authors’ interview with advisors and staff members of the USAID Bureau of Democracy, Human Rights and Governance, U.S. Agency for International Development, Washington, DC, February 1, 2017.

12 Authors’ interview with a senior advisor, Office of the Coordinator for Countering Violent Extremism, USAID, July 6, 2017.

13 U.S. Department of State, “Central American Regional Security Initiative,” https://www.warresisters.org/central-american-regional-security-initiative <https://www.warresisters.org/central-american-regional-security-initiative>.

14 Authors’ telephone interview with State Department Counter Terrorism Bureau officer, Washington, DC, February 2, 2107.

15 Authors’ telephone interview with a former State Department International Narcotics and Law Enforcement Bureau Rule of Law Advisor, Washington, DC, March 6, 2018.

16 U.S. Department of State, “State-USAID-DOD Stabilization Assistance Review,” June 19, 2018, 14, <www.state.gov/r/pa/prs/ps/2018/06/283334.htm>.

17 Rachel Kleinfeld, Advancing the Rule of Law: Next Generation Reform (Washington, DC: Carnegie Endowment for International Peace, 2012), 35–46; Paul Bisca and Gary Milante, “Effective, Legitimate, Secure: Insights for Defense Institution Building,” PRISM, November 20, 2017, <cco.ndu.edu/Publications/Publication-View/Article/1375931/13-insights-from-the-development-sector/>.

18 Ivan Krastev, “Eastern Europe’s Illiberal Revolution: The Long Road to Democratic Decline,” Foreign Affairs 97, no. 3 (May/June 2018): 56, <www.foreignaffairs.com/articles/hungary/2018-04-16/eastern-europes-illiberal-revolution>.

19 Natalie Duffy and Nate Sibley, “Five Myths about Kleptocracy,” Washington Post, January 5, 2017, <www.washingtonpost.com/opinions/five-myths-about-kleptocracy/2017/01/04/42b30d72-c78f-11e6-8bee-54e800ef2a63_story.html?utm_term=.f958144d98df>; Carl Gershman, “Unholy Alliance: Kleptocractic Authoritarians and their Western Enablers,” World Affairs Online, July 2016, <www.worldaffairsjournal.org/article/unholy-alliance-kleptocratic-authoritarians-and-their-western-enablers>.

20 Gershamn, “Unholy Alliance.”

21 Rachel Kleinfeld, A Savage Order: How the World’s Deadliest Countries Can Forge a Path to Security (New York: Pantheon Books, 2018), 24–25.

22 Radio Free Europe/Radio Liberty, “European Parliament Votes to Discipline Hungary Over Democratic Values, Rule of Law,” September 13, 2018, <www.rferl.org/a/european-parliament-votes-to-discipline-hungary-over-democratic-values-rule-of-law/29486119.html>.

23 Krisztina Than, “Hungary to Set Up Courts Overseen Directly by Government,” U.S. News and World Report, December 12, 2018, <www.usnews.com/news/world/articles/2018-12-12/hungary-passes-law-to-set-up-new-courts-overseen-by-justice-minister>.

24 “Hungary’s Illiberal Democracy,” The Week, April 22, 2018, <theweek.com/articles/768453/hungarys-illiberal-democracy>.

25 Marc Santora and Benjamin Novak, “Protesting ‘Slave Law,’ Thousands Take to Streets in Hungary,” New York Times, January 5, 2019, <www.nytimes.com/2019/01/05/world/europe/hungary-protests-slave-law.html>.

26 Joshua Kurlanzick, “Unfixable? Several Nations Have Tried to Restore Democracy after Populist Strongmen. It Was Never the Same,” Washington Post, November 8, 2018, <www.washingtonpost.com/news/posteverything/wp/2018/11/16/feature/unfixable-several-nations-have-tried-to-restore-democracy-after-populist-strongmen-it-was-never-the-same/?utm_term=.b1c8b0a18a23>.

27 Authors’ interview with Isa Gambar, chairman, Center for National Strategic Thought, Baku, Azerbaijan, July 4, 2017.

28 Cheryl Reed, “Out of Jail, Journalist Battles Azerbaijan’s Rights Abuses,” Washington Post, September 2, 2018, <www.washingtonpost.com/world/europe/she-was-jailed-she-was-harassed-but-this-journalist-in-azerbaijan-finds-new-ways-to-battle-alleged-rights-abuses/2018/09/01/b16e547a-aaf4-11e8-b1da-ff7faa680710_story.html?utm_term=.f1bd1e888bc9>.

29 Authors’ interview with Arif Hajili, chairman, Musavat Party, Baku, Azerbaijan, July 4, 2017.

30 Authors’ interview with Jamil Hasanli, chairman, National Council of Democratic Forces, Baku, Azerbaijan, July 4, 2017.

31 USAID, “What Works in Reducing Community Violence: A Meta-Review and Field Study for the Northern Triangle,” Washington, DC, February 2016, <www.usaid.gov/sites/default/files/USAID-2016-What-Works-in-Reducing-Community-Violence-Final-Report.pdf>.

32 Authors’ interviews in Honduras, El Salvador, and Guatemala, May 22–June 1, 2017.

33 Yezid Sayigh, “Dilemmas of Reform: Policing in Arab Transitions,” Carnegie Middle East Center, March 31, 2016, 1–4, <carnegie-mec.org/2016/03/30/dilemmas-of-reform-policing-in-arab-transitions/iw6o>.

34 Kevin Casey and Stacey Pollard, “ISIS Moves Very Deliberately in Gaining from the Chaos in Libya,” Daily Star, April 7, 2015, <www.dailystar.com.lb/Opinion/Commentary/2015/Apr-07/293506-isis-moves-very-deliberately-in-gaining-from-the-chaos-in-libya.ashx>; Eric Schmitt, “Warnings of a Powder Keg in Libya as ISIS Regroups,” New York Times, March 21, 2017, <www.nytimes.com/2017/03/21/world/africa/libya-isis.html?smprod=nytcore-ipad&smid=nytcore-ipad-share>.

35 Rich Roland, Democracy in Crisis: Why, Where, How to Respond (Boulder, CO: Lynne Rienner, 2017), 125–26.

36 U.S. Department of State, Office of the Special Representative for Afghanistan and Pakistan, Fact Sheet, “U.S. Relations with Pakistan,” January 24, 2017, <www.state.gov/r/pa/ei/bgn/3453.htm>.

37 U.S. Department of Justice, “About ICITAP Asia and Pacific,” February 2, 2017, <www.justice.gov/criminal-icitap/asia-and-pacific>.

38 Briefing received during the authors’ visits to these facilities in 2016.

39 U.S. Department of State, “INL Pakistan Counternarcotics Program,” <www.state.gov/j/inl/narc/c48593.htm>.

40 USAID Dollars to Results, “Democracy and Governance in Pakistan, FY 2015,” <results.usaid.gov/pakistan/democracy-and-governance#fy2015>.

41 Manzar Zaidi, “Assessing Conditions for U.S. Rule of Law Interventions: Main Findings,” unpublished study, July 2017. Report contains the results of interviews conducted in Urdu with security officers, civil society, and media representatives concerning the impact of U.S. rule of law programs in major cities and rural areas in Pakistan’s four provinces.

42 Querine Hanlon and Matthew Herbert, “Border Security Challenges in the Grand Maghreb,” PeaceWorks no. 109 (2016): 6–7.

43 United Nations Secretariat, “Report of the Secretary-General on the Situation in the Sahel Region,” UN doc. S/2013/354, June 14, 2013, <unowas.unmissions.org/sites/default/files/s_2013_354_sahel_strategy_en.pdf>.

44 United Nations Security Council, “Report of the Secretary General on the Situation in Mali,” UN doc. S/2017/1105, December 26, 2017, <reliefweb.int/report/mali/report-secretary-general-situation-mali-s20171105>.

45 Lee Berthiaume, “Canadians Pressed into Service after Deadly Attack on UN Base in Mali,” Canadian Broadcasting Company, January 22, 2019, <www.cbc.ca/news/politics/canadians-mali-action-attack-1.4988318>.

46 Boubacar Sangaré, “Settling Local Disputes Is Key to Peace in Central Mali,” Institute for Security Studies, November 12, 2018, <issafrica.org/iss-today/settling-local-disputes-is-key-to-peace-in-central-mali>.

47 International Crisis Group, “Central Mali: An Uprising in the Making?” Africa Report no 238, July 6, 2016, <www.crisisgroup.org/africa/west-africa/mali/central-mali-uprising-making>.

48 Authors’ telephone interview with a program officer of the Security Governance Initiative, February 15, 2017; authors’ telephone interview with program officer, Bureau of International Narcotics and Law Enforcement Affairs, March 15, 2017.

49 Pilar Domingo, “Rule of Law, Politics and Development: The Politics of Rule of Law Reform,” Overseas Development Institute, London, March 2016, 4–5, <www.odi.org/sites/odi.org.uk/files/resource-documents/10420.pdf>.

50 Anthony Blinken and Robert Kagan, “A Better Approach to America First,” Washington Post, January 2, 2019, <www.washingtonpost.com/opinions/america-first-is-only-making-the-world-worse-heres-a-better-approach/2019/01/01/1272367c-079f-11e9-88e3-989a3e456820_story.html?noredirect=on&utm_term=.c68cbd1247fc>.

51 Kelly Magsamen et al., “Securing a Democratic World: The Case for a Democratic Values-Based U.S. Foreign Policy,” Center for American Progress, September 5, 2018, <www.americanprogress.org/issues/security/reports/2018/09/05/457451/securing-democratic-world/>.