Every year I attend a seminar presented by the 6th JAG LSO in Seattle, Washington. In years past, the Army lawyers have discussed the procedures for dealing with WMD incidents on U.S. home soil and the chain of command during national emergencies. One component of the legal instruction is pure gold. The subject matter is broadly classified as Rule of Law– a big concept for JAG Corps lawyers, as it should be for all of us.
It may not be immediately obvious but the commitment to rule of law is what stabilizes a nation. The ability to honor contracts, respect minorities and manage conflict is what makes the difference between prosperous and peaceful societies and societies that descend into chaos. It just seems like prosperity, technological achievement and military might is the source of American power.
Actually, however, it is the integrity of our legal system that promotes economic and social stability. Financial systems, and social institutions in general, including the military and the courts are only as reliable as the people that keep their promises and stand in the gap where expectations link up with the so-called “social compact“. In other words, much depends on faith and trust, a covenant between people.
Everything the US wants to accomplish in Afghanistan and Iraq is going to hinge on the nuts and bolts of judicial administration. Iraq already has lawyers, well trained and eager to do their jobs with a great deal of legal code- French Civil Law imported to Iraq via Egypt.
Civil Law (or the Code Napolean) is inquisitorial; i.e., the Anglo-Saxon adversarial system with juries and lawyers doing battle by means of cross-examination does not exist in Iraq and much of the non-Anglo-Saxon world(including most European societies). Instead there are judicial investigators that report information to other judges that listen to arguments from the prosecution and defense lawyers. Police detectives, as we know them, are not a feature within the Iraqi criminal justice system.
But it takes years to put a judicial system together in a country like Iraq that has not had a functioning judiciary. Case management, rehabilitation and probation are all concepts that are being worked out in Iraq and there are military and civilian lawyers from the U.S. and other Western countries helping the Iraqi lawyers with the process. The first priority is to create security and that is clearly what has been happening. It goes without saying, that there is still a great deal to be accomplished.
At every level of the U.S. mission in Iraq, you can find military lawyers. They are interpreting the rules of engagement, advising commanders on how to deal with claims being made by Iraqis and representing the detainees and U.S. military personnel as defense counsel. There are JAG prosecutors and JAG Corps judges that deal with our own forces under the Uniform Code of Military Justice (UCMJ via court martials and other procedures). They also represent detainees held in Guantanamo.
DRILLING FOR JUSTICE
Our government tracks 1100-1200 terror organizations that have lethal capability. By 2030 2.5 billion people will live in poverty. Our military deploys 651 JAG officers in 19 countries. JAG officers are lawyers that function in many ways, including missions to develop “Rule of Law”. In places like Iraq, Kosovo and the Congo, where institutions have broken down, success depends on courts, police and prisons working in ways that common citizens support. Failure to accomplish this ensures a failed state in which terrorism can thrive.
The subject of Rule of Law is a major component at most JAG seminars; this year, a general finally defined it. “We know it when we see it.” Since this is the same way that one U.S. Supreme Court justice defined pornography, there is precedent for such a definition.
JAG officers are admonished to “drill down” past the institutions and the written legal codes. The U.S. government spends a great deal of the taxpayers’ money training foreign judges, making deals with elite foreign constituencies- and failing to facilitate cultural change. The question is how to enfranchise women’s groups and encourage other minorities to demand justice without trying to remake foreign legal systems into the image of our own proud adversarial system.
In many countries, judges investigate facts with almost no involvement from juries, prosecutors and defense attorneys. Drilling down through complex bureaucracy, however, gives access to justice in places like Sierra Leone where they were recently cutting off children’s arms in order to control the lucrative market for “blood diamonds”?
The general exhorted his lawyer-soldiers to reach solid foundations. But can the Corps bypass mere “surface reform” and create groups of women, youth, and other minorities that demand justice in an environment that is rooted in oppression- oppression against those minorities to be empowered by Rule of Law? Especially in places like the Congo where women and babies have been systematically broken by sexual assault and intentional infliction of AIDS by marauding armies.
Perhaps, we have “drilled down” to cultural bedrock already in Iraq. Saddam Hussein previously had introduced secular-pluralism. Brutality is very successful in by-passing institutions that are hostile toward diversity; the Soviets proved that. But will such “drilling down” succeed in lesser-developed countries lacking the education and modern veneer that existed in Iraq when our forces arrived?
Progress made in Iraq started when the U.S. started arming and paying Sunnis to exercise their God-given, inalienable right to keep and bear arms against Al Qaeda and stop attacking us. Similar progress is beginning to occur in Afghanistan. What if the next time the Friends of the Taliban try to throw acid in a young girl’s face her teachers come out and shoot her assailants?
Do you think the new administration could buy guns for American citizens to “drill down” and stop violent criminals, terrorists and psychopaths at the schools when they attack here in King County? That would be real change! America’s gun culture would have come in real handy in Mumbai!
See JAG Warriors.
“Arms discourage and keep the invader and plunderer in awe, and preserve order in the world as well as property. . . Horrid mischief would ensue were the law-abiding deprived of the use of them.” — Thomas Paine, Thoughts On Defensive War, 1775