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The Rule of Law in the Context of US Military Operations

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The Rule of Law in the Context of US Military Operations: An Insider’s View from JTF/CJIATF 435 in Afghanistan 2010-2011

Thomas L. English

Dedication

I dedicate this article to the memory of CPT Laura Eberts US Army 1979 -2011 whose tireless work and absolute dedication to the mission of the Rule of Law[i] (ROL) made invaluable contributions to the security and stabilization of Afghanistan.  CPT Eberts’ duty in Afghanistan was to assist Afghan prosecutors in starting their own criminal justice system.  Tragically, she passed away within weeks of leaving Afghanistan while on her honeymoon.    There is no one who worked harder or dedicated themselves more to Justice in Afghanistan than Laura Eberts.

Introduction

Virtually my entire adult life, over forty years, has been dedicated to the enforcement of law in many different contexts.  I base this article on my personal observations and perceptions from participation in the leadership of the Legal Operations Directorate for CJIATF (Combined Joint Interagency Task Force) 435 from September 2010 to May 2011.   “CJIATF” has special meaning and significance.  In military parlance, Task Forces are typically “joint” if they include various branches of the armed forces.  In Afghanistan, the U.S. Government utilized the combination of joint military (Navy, Army, Air Force and Marine) with civilian agencies (Department of State (DOS), Department of Justice (DOJ), Department of Agriculture, etc.).  The use of the CJIATF evidences the desired direction for ROL in Afghanistan and potentially for future operations conducted by the United States. 

I choose the title for this article based on the speech I utilized to motivate my team which is an excerpt from Theodore Roosevelt that I feel fits the bill: “It is not the critic who counts; not the man who points out how the strong man stumbles, or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood; who strives valiantly; who errs, who comes short again and again, because there is no effort without error and shortcoming…”[ii]  This article illuminates ROL from a practitioner’s perspective as it chronicles my experiences from years in law enforcement, legal, judicial in both civilian and military contexts.  During my tenure in Afghanistan, my job was to support combat operations within a ROL framework.  Everything I had encountered in my career influenced my ability to do my job in Afghanistan at a time when our Country needed me to step-up to the plate.

I have worked as a police officer, investigator, prosecutor, criminal defense attorney, judge and senior military leader.  My domestic work was at the local, state and federal levels.  I have worked on international ROL projects in the Balkans, East Timor, Indonesia and Afghanistan.   

In 1999, I deployed to Bosnia as part of Operation Joint Forge serving with the First Cavalry Division as Chief of Foreign Claims.    In 2000, in my role as a federal prosecutor for the U.S. Department of Justice, I was sent to East Timor as part of a team addressing investigation and prosecution of the massacres that occurred in 1999. I worked directly for the U.S. Ambassador in Jakarta, Indonesia who had responsibility for East Timor.  I also worked with Indonesian police officers, investigators and prosecutors to improve their application of due process.  This assignment was the result of a mission from the DOJ program under the Office of Prosecutorial Development Assistance and Training (known as OPDAT) that assists, through the State Department, other countries with development of investigative, prosecutorial, and judicial skills. Working with the State Department gave me insight into the difference between diplomatic operations and military or law enforcement operations.

In 2013, I was invited to and attended the World Justice Forum IV (Forum) at The Hague.  This forum is sponsored by The World Justice Project which is a nonprofit organization sponsored by many globally affluent individuals and businesses.  This conference was attended by all manner of professionals from around the globe.     The ROL is a critically important element for any institution and particularly the military to get right.  With it, we get greater security and safety.  Without it, we compromise that very safety and security and lose credibility throughout the world.  The World Justice Project defines the “Rule of Law” as a system with four universal principles: “1. Individuals and private entities are accountable under the law. 2. The laws are clear, publicized, stable, and just; are applied evenly; and protect fundamental rights, including the security of persons and property. 3. The process by which the laws are enacted, administered, and enforced is accessible, fair, and 4. Justice is delivered timely by competent, ethical, and independent representatives and neutrals who serve.”[iii]    These principles are a good guide for the different facets of ROL as applied in a military context. 

My Concept of ROL in the Stages of Society

I discovered that I was confused about the concept of the ROL: i.e. what it is and what it is not.   I was still confused about the true meaning of the ROL.  At the Forum, I was not the only one confused about ROL.  As United States Supreme Court Justice Anthony Kennedy stated at the Forum, it is not “ruled by law” but rather “living under the rule of law.”  A Catholic Bishop from South Africa stated that the ROL must include the concept of the whole of humanity and the consideration of all human beings.  It became apparent to me that the ROL cannot begin until there is security and security cannot be sustained without the ROL.  From this, I came up with a concept to help me illustrate this in the terms of the stages of a society, which I describe as:  normalcy, destabilization, chaos, security, stabilization and return to normalcy. 

In my experiences around the world, I have appreciated countries in each stage of society.  Indonesia is an example of normalcy.  That country has issues, as most do, however institutions both private and public function.  Businesses are open, traffic flows and citizens have a sense of security.   Destabilization begins with a breakdown of government services and the collapse of business and civilian institutions.  I believe this is the stage in which I observed East Timor.  In 1999, massacres occurred throughout this tiny island nation.  Government buildings had been burned and the public rightfully feared for their safety.  Afghanistan has gone from chaos to security and is working toward stabilization.  One only needs to recall images coming from Afghanistan just after the attacks against the U.S. in September 2011. I recall the main soccer stadium in Kabul where women were publically executed.  This was chaos.  I stood in that very stadium, which later served as a helicopter-landing zone for the International Security Forces.  Grass had returned and it was relatively safe.  During my tenure in Afghanistan, security was the primary issue and military ROL missions were necessary.  Of course, the State Department and nongovernmental organizations were on the ground but the lack of security prevented most from functioning effectively.  

There is great competition for the application of the ROL and turf wars between entities, both governmental and nongovernmental, waste precious dollars and resources.  The world needs all involved in the development of the ROL to understand and appreciate where they fit and to respect where others likewise fit.  Military leaders should understand that their role, in the development of the ROL, must be limited except as it affects the ability to regain security and position for potential stability. This application has two components: internal (the application of law within the structure of the military force) and external (applying the ROL to others within the context of military operations.

Internal ROL Within Military Organizations

We rarely think of the internal application of ROL, but can we truly be purveyors of the ROL in an external basis if our own house is not in order?  I was struck by strong viewpoints from participants in the Forum that the military must keep or make order in its own house before even considering being a player in the ROL game.   We must be mindful that the military is not inherently the best choice for running a civilian government.  Thus, it follows that the military is not the best choice to stand-up or run another country’s government.  This very issue caused tremendous friction in ROL missions in Afghanistan during my tenure.  Military leaders, while very proficient in military operations and decision making, are ill prepared to make decisions on most civilian issues. 

At the World Justice Forum, the US African Command (AFRICOM) legal engagements office presented their concept of the ROL in the military.   The AFRICOM approach uses pillars to illustrate the development of security assistance for military forces in developing nations.[iv]  The five AFRICOM pillars are:  1.) Military is Subordinate to Civilian Authority 2.) Military has Appropriate Military Justice System 3.) Military Adheres to International Humanitarian Law 4.) Military & Security Forces Observe, Respect and Protect Human Rights 5.) Preventing Military Corruption.   Confusion over the role of the military in ROL contributes to a misunderstanding of what AFRICOM is attempting to accomplish with its program.  This is not in any way an attempt to invade the purview of civilian actors in the development of the ROL in foreign countries, except under the narrow context of military to military development.  This is a wholly appropriate approach to ROL and within the purview of a combatant command.

During my deployment to Bosnia in 1999, I investigated and paid claims filed against the U.S.  Many people are surprised that the U.S. military pays out U.S. taxpayer funds for property it damages while overseas.  We did not call this a ROL mission but, as explained to many people, it was important to show that the U.S. honored its legal obligations.  Taking responsibility for our actions enforced the concept that we followed the ROL and, hopefully, villagers respected us and would be inclined to assist or cooperate with our forces.   This is very important in the age of roadside bombs.  I would much rather have good relations and the hope that villagers would warn our troops if they knew a roadside bomb was nearby. 

In Indonesia, my team taught classes to local prosecutors and investigators. These classes involved basic techniques that were consistent with international due process.  We broke the class into groups and asked each group to solve a problem using the techniques we had just taught, the students worked diligently as they appeared excited to receive this training.  Some of the students resented our efforts feeling we were interfering in their application of the ROL under their own terms. We learned that our perceptions of ROL are not universally accepted and that we must be sensitive to perceptions of our country as we reach out to provide ROL instructions.

In East Timor, I was asked to evaluate the potential for a witness security program.  My expertise in this arose from having many individuals approved for witness security protection.[v] My analysis of the massacres in East Timor and those who were suspected of committing them led me to conclude that a witness security program would not work nor would it be necessary.  This conclusion was based on my assessment of Timorese society and the need to respect what worked for these people as opposed to creating programs that make us feel as if we had made a contribution.  Sometimes, the best ROL approach is to do nothing and let a society work out their own issues.  This is good internal ROL as we avoid the need to make ourselves look better to justify ROL programs that are not necessary. 

External ROL in Military Operations

First we must understand what I mean by external rule of law.  I started with the concept that the military applies ROL in two phases of society: normalcy and security.  In normalcy, we strive to place our house and those other militaries with whom we work in good order.  We do this to best prepare for the eventuality that we will be called upon to effect security from chaos.  The effectuation of security must be done with the mindset that what is done in each phase of society impacts the next phase.  If we do not prepare for eventual chaos while in normalcy we will not be effective in establishing security.  Conversely, what we do in the security phase will effect stabilization and eventual return to normalcy.  

We should see that external ROL is a necessary component of the security phase and involves prevention of degradation of ROL institutions and the development of ROL sufficient to permit transition to stabilization.  With this said, there are never clear-cut lines between these phases.  The security phase can last far longer than anticipated, such as our recent experiences in Iraq and Afghanistan.  This extended period necessitates more external ROL activities to establish and maintain stability through the next phase.  Bosnia is a good example.  Originally, the U.S. approach was to be limited to a matter of months; however, when I was there more than a year after this anticipated deadline civilian agencies struggled to establish stability operations.  In this scenario, the military must continue ROL activities until the civilian agencies and nongovernmental organizations (NGO) are established.

CJIATF 435: External ROL in Afghanistan

The actual application of the principles of ROL in a combat contingency operation involves extremely diverse players both governmental and nongovernmental.  The governmental players within the US government include both civilian and military.   I don’t think Coalition forces destroyed infrastructure or chased civil servants off in Afghanistan as is argued occurred in Iraq.  The real issue was did Afghanistan, as a society, have ROL structures prior to our invasion in 2001?  I do not want to jump into the history of this troubled region so suffice it to say, that Afghans have limited experience in running their own country absent of outside influences.  In working shoulder to shoulder[vi] I was repeatedly told by Afghans that they had been promised many things by many different occupiers so they preferred to just do nothing and await the next chapter in the story of their country.  Second, I believe that coalition forces in Afghanistan maintained internal ROL. Of course there were exceptions to this as has been the case throughout the history of war.

The task force mission was to provide “Justice for Afghanistan.”  Of course in my concept of ROL, this primarily involves external ROL.  In my lane, the task force generally had two prongs: support ongoing combat operations through detention operations with evidence gathering and to teach our Afghan partners good practices that were both sustainable and irreversible.  General (GEN) David Petraeus, as Commander of all forces in Afghanistan, instructed us that our efforts must be both sustainable and irreversible.  I took this to mean that we should not implement any ROL projects that our Afghan partners would not keep once we left.  Additionally, everything we accomplished must be accepted by our Afghan partners as legitimate so when we departed they could accept what we had helped them accomplish.  In managing our detention population, I believe that we followed internal ROL.  I base this on a perception of whether, as a country, we followed our own concepts of due process and those of the international community.  We also had to be aware that how we conducted ourselves in the ROL had a great impact on how our coalition partners viewed continuing their support.

Legal Operations Directorate

In September 2010, VADM Harward selected me to take charge of the Legal Operations Directorate (“LOD”) one of seven directorates under CJIATF 435. LOD was located at the detention center in Parwan (DFIP).  Our mission was to oversee the administrative legal and criminal processing of all detainees at the DFIP.  This involved Detainee Review Boards (DRB) and Afghan civilian prosecutions.  At that time, LOD was staffed with U.S. military personnel and a few Afghan partners mainly investigators and prosecutors. 

In the fall of 2010, a unique situation arose from the surge of troops and application of our counter insurgency operations (COIN).  This led to a need to manage an increasing detainee population under infrastructure and fiscal constraints.  In the late fall of 2010, detainee population rose at the fastest rate ever.  At the same time, we encountered  fiscal limitations on spending for U.S. detention operations.  Transfers to Guantanamo stopped and we needed to address domestic and international concerns over detention of individuals relating to the war on terror.  This was all occurring when at the same time, we needed to fashion remedies taking in consideration the sovereign needs of Afghanistan.  This required a balanced approach with a strong leaning toward transition into stability and civilian control of ROL.  As to the former, we worked with the Government of the Islamic Republic of Afghanistan (GIRoA)[vii] authorities and, to the latter, the U.S. State Department. 

The ever increasing population of detainees required processing under administrative policy for detention and transition to GIRoA custody.  Administrative processing occurred under the policy requiring a Detainee Review Board (DRB).  I will not go into detail on the DRB process as others have written excellent articles in great detail.[viii] However, I will generally discuss the DRB as it affects my view of the ROL.  Transition to GIRoA custody occurred under Afghan prosecutions that occurred when a DRB voted to refer the case for Afghan prosecutions.  It could be argued that the DRB process involved internal ROL even though it was in the military operation context.  The argument would be that the DRB process was conducted solely under U.S. detention policies.  The fact that the U.S. military recognized and followed that policy is indicative of good internal ROL practices.  At times, various entities desired to weaken our application of detention policy; however, we were able to maintain our integrity despite these attacks.

Detainee Review Boards

The detainee review boards (DRB) were conducted generally under the same process that administrative hearings are conducted for U.S. military personnel and were conducted consistent with due process requirements. Board members were usually selected from military units operating in Afghanistan.  U.S. detention policy set-forth the factors to be addressed in these proceedings: identification of the detainee, whether the detainee was involved in terrorism or hostile acts against coalition forces.  If the detainee did not meet the detention criteria then the board was required to recommend release.  If found to be involved in terrorism or hostile acts and found to be a continuing danger, the board then voted as to a disposition, which could include continued detention (this would require a new board every 6 months) or referral the GIRoA for prosecution under Afghan law.    DRB processing involved investigations by U.S. military law enforcement personnel.  These investigations required the transition of battle field intelligence into usable law enforcement information.  Once the investigation was completed it was passed to a military lawyer who acted as a recorder and a non-lawyer military officer who was assigned to represent the detainee.

Evidence was presented by military lawyers assigned as Recorders.  Recorders act much like a prosecutor but in the context of a military administrative proceeding they are to present all evidence for and against detention.  Detainees were represented by military officers who were not lawyers.  It was critical in my view that the representatives had access to lawyers for assistance.  Eventually, I even assigned my first deputy a very talented Navy Lieutenant Commander as the senior attorney advisor for these representatives.  Likewise the representatives needed equal access to the investigations.  The detainee representatives worked diligently to ensure that the DRB process was fair.  I balanced resources so that representatives had sufficient support to do their jobs.  This was a difficult job for young military officers but each officer did their duty as required.  They deserve the highest praise for representing our Country on the forefront of the ROL.  While many human rights groups appreciated the due process accorded some readily criticized the representatives, these attacks were done without adequate research into what they actually did or how they performed their assigned duties.  This is greatly troubling when access to what we did was readily granted.  On a daily basis we facilitated the transportation of dozens of Afghan witnesses from far and at times remote villages.  These Afghan citizens testified for and against detainees.  We placed the same value of getting a witness regardless of which side needed them.  I had to work on cultural differences between the Afghan witnesses and my own personnel to ensure all were welcome.

I personally briefed all incoming board members as their obligation to be fair and impartial.  I would use GEN Petraeus’ slide “anaconda strategy” to illustrate where the board members fit in as part of the overall Afghanistan strategy.  In essence, this meant that they must insure accuracy in detentions so that non-involved Afghans were released to their families thus preserving our reputation for following the ROL.  Conversely, they must insure that dangerous individuals continued in detention or were prosecuted under Afghan law.  I would never allow a board member to sit on a DRB if they were not capable of being unbiased. 

The constant battle between detention and release of detainees took considerable management.  The critics were abundant.  On one hand, I would have battlefield representatives constantly stating that we were releasing dangerous individuals without consideration of battle field conditions and too much emphasis on due process.  On the other hand, I would have Human Rights organizations constantly stating that we were not releasing enough people and that all we did was detain all without any concept of fairness.  I believe the answer was in transparency so that all could observe what we did on a daily basis.  I would have battlefield personnel and human rights personnel watching DRBs in the same room.  In addition, I started a program to get Recorders out into the battle space so that could meet the warfighters face to face.  These meetings greatly facilitated communication diffusing misunderstanding about the DRB process.  Investigators would also go on these missions making the effort to teach soldiers how to collect evidence.  Likewise, I enhanced a unit supporting the representatives to better facilitate attendance of Afghan witnesses.

My view was that many warfighters were confused over the U.S. detention policy for the War on Terror.  The detention criteria, best described in the Bovarnick article, put in place as the U.S. made an early decision to not apply the Geneva Convention to person captured in this war.  Typically, the Geneva Convention categorizes detainees as either combatants or noncombatants and if found to be a combatant there are generally detained prisoners of war (POW) until the cessation of hostilities.  Many times, senior military leaders told me that policy was not law and need not be followed, a concept for which I vehemently disagreed.  I attribute this to the inability of their respective legal advisors to provide legal advice whether the commander wanted to hear it or not.  Unfortunately, some legal advisors merely advocated commander’s opinions irrespective of the law or policy.

Afghan Prosecutions

Afghan prosecutions involved external ROL in direct support of military operations.  Again, this was viewed with great suspicion by both the battle space commanders and human rights groups.  The former did not trust the Afghan system to get it right and the latter felt the Afghan system would not provide adequate due process.  As I described, there was a pressing need to prosecute detainees to convert to Afghan prisoners.  The prevailing thought was that if we could get the Afghan authorities to prosecute detainees they would have a legitimate reason to keep them detained.  In other words, to avoid mass releases of detainees as occurred in Iraq.  Ultimately, there still were mass release of Afghan detainees, but it is untold how many releases were prevented by prosecutions under Afghan law. 

Prior to arriving in Afghanistan my team and I were fortunate to have been paid a visit by a JAG officer who was assigned to the Asymmetrical Warfare Group[ix] (AWG).  This JAG Officer spent considerable time with us describing his team’s efforts at starting Afghan prosecutions.  He described scouring the countryside looking for an Afghan prosecutor that would face considerable odds and actually start charging people with violations of Afghan law[x].   Through his actions AWG was successful in identifying an Afghan prosecutor from the Afghan National Directorate of Security[xi] (NDS).  Once they had a willing Afghan prosecutor, they sought out a prosecutable case[xii].

This case was brought to the Legal Operations Directorate (LOD) of then JTF 435 located in the detention center in Parwan Afghanistan.  From this point, LOD undertook helping the Afghan team develop investigative and prosecutorial practices that could result in convictions.  This is where CPT Laura Eberts, to whom this article is dedicated, excelled and gave everything she had to get her Afghan partners ready for the first trials.  This first case was critical to developing Afghan prosecutions throughout Afghanistan.  This case was successfully prosecuted leading to some of the first convictions under Afghan law under Afghan legal proceedings. Starting Afghan prosecutions served to teach ROL principles to our Afghan partners and in fact aided in supporting combat operations.  

In December 2010 and January 2011, the prosecutions program gave the CIAJTF 435 Commander options in how to manage the detainee population.  Recall that at this time the population was growing every day while fiscal constraints limited our ability to build more detention space. The troop surge was bringing in more and more detainees and detention space was limited.  At the same time, the U.S. had received fiscal authority to build a new Afghan housing unit at the DFIP.  Initially this housing unit was restricted to Afghan prisoners.  These prisoners came from either existing Afghan prisons or DFIP detainees who had been convicted through our prosecutions program.  In managing detainee population, the CIAJTF 435 Commander had the ability to decide at what stage a detainee could be deemed to be an Afghan prisoner and thus transferred to the Afghan housing unit.  This remained steady at conviction being the point that the detainee would be transferred.  The other comparative points were DRB recommendation for prosecution, Afghan indictment, or after exhausting Afghan appeals process (Court of Appeals and Supreme Court).

The first case was convened in a DRB hearing room.  The Afghan prosecutors, judges and defense attorneys used office space in the DFIP.  They ate food at the DFIP dining facility, enjoyed US Armed Forces television, and surfed the internet on US provided computers.  In the fall of 2010, there was the start of the Justice Center at Parwan (JCIP).[xiii]  The JCIP was within the broad area of the DFIP but outside of the detention center itself.  It sat immediately adjacent to the perimeter fence within a stone’s throw of an Afghan village.  The start of the JCIP consisted of one partially complete building and the foundation for another.  There was no furniture, electricity, water or sewer.  The JCIP was central in an ongoing dispute between the military and the State Department.  At that time, the military was the driving force for the construction and the State Department was to provide funding through the Bureau of International Narcotics and Law Enforcement Affairs (INL).     This was a classic conflict between U.S. agencies both vying to provide ROL. 

My background prepared me well to step into this fray.  I understood both the civilian and the military perspective and need to achieve results quickly as they affected the battle space and ongoing military operations.  As a civilian law enforcement official I had insight into the difficulties that investigators and prosecutors face.  As a lawyer and judge, I appreciated the nuances of a legal system and the need for and application of rules and procedures. 

Initially, I felt we did not have a grasp on the inventory of cases at the DFIP which had grown from early 2010 in the hundreds to late 2010 to early 2011 in the thousands. I ordered an inventory of the cases based on the type of crime, i.e. weapon possession, attacks on our forces, bombs or drugs etc.  We were able to sort through these cases accurately identifying the type of case and the status of evidence.  However, there were hundreds of cases that lacked any readily identifiable evidence, aside from classified intelligence.  While the battle field units were working diligently to declassify information that was a huge gap that needed to be filled.    A team of talented investigators, civilian and military, worked diligently to find evidence to in these cases to support civilian prosecutions.  In one case, a coalition country refused to provide evidence helping to prosecute a detainee who was thought responsible for the beheading of several of their soldiers.  The explanation we received was that they did not want their citizens to know about this brutal massacre.  We did the best we could with what we had considering political realities and combat issues. 

Within weeks we were able to start moving our Afghan partners out to the JCIP.  The prosecutions team was able to get the JCIP up and running.  This was no small feat when you are facing difficult challenges in a war zone.  We also encountered times when our Afghan partners could not make it to work for various reasons so I developed a rapid response team to bring them into the JCIP.  This ensured that scheduled trials would be heard.  It was a constant battle to keep our Afghan partners working and a myriad of problems arose from daily searches at the entry point to the need for gasoline. 

In the course of these prosecutions, we were able to provide hands on training in many areas of forensics.  The first area was finger prints for identification.  When fingerprint evidence was first introduced in an Afghan trial, the defendant while holding up his hands and wiggling his fingers gleefully stated that the government’s evidence must fail as the fingerprints identified on the roadside bomb could not be his as he still had them on his fingers.    We also trained our partners on explosives and blast analysis.  We were able to bring them an MRAP that had been utterly destroyed by a roadside bomb.  Finally, we also started venturing into biometric evidence including DNA.  However, this step was questionable given our directive that all we accomplished must be stainable and DNA was difficult to understand.

Once we were able to get the DRBs to recommend Afghan prosecution and get cases into the hands of our Afghan partners the rate of prosecution began to climb.  The State Department had come on board with funding and personnel.  It was a very important part of my job to ensure that the State Department leadership was satisfied that the military was not forcing the creation of the JCIP in its own concept, but rather, the military was accepting that the State Department would take over the JCIP for the future.  This is an important concept regarding the societal stages for ROL in the military.  My guidance and best judgment was that the military interest was to facilitate battlefield operations by handling detainees.  At the same time, we had to be mindful that our operations would impact the eventual turnover to the State Department.[xiv]  As such, I constantly sought out input from and concurrence with our State Department partners whom I greatly respected.

As the prosecutions program grew, I had to request additional Afghan personnel.  In short order, we were able to keep our first panel of three judges working full time.[xv] We added a panel of appellate judges and juvenile judges.[xvi] In my travels to meet with the regional Chief Judge, in the city of Charikar, I would negotiate more Afghan personnel to keep our prosecutions growing.  I made this venture several times, and each time it proved very humbling.  First, seeing Afghan city and village life was a far different view than that from our fairly secure base.  Second, the hospitality of the Afghans was incredible.  Every meeting would start with snacks, purchased by the Chief Judge at great personal expense, and only after would business be discussed.  I felt it was important to show the Chief Judge that I would come to him on his turf to discuss his justice system.

I believed that we must give our Afghan partners the best training and guidance but at the same time recognize that it is their system.  In this regard, I greatly diminished the presence of U.S. military personnel at Afghan trials.  I felt that we needed to accept the results as legitimate whether we liked the outcome or not.  For most senior military leaders, this was a bitter pill to swallow as they thought these prosecutions should mirror western models.  This was interesting to me, as the State Department was strongly advocating that acceptance of the results was paramount to success of the program.  Additionally, there were discussions that if the military did not accept the trial results that this could result in pulling support for the prosecutions programs.

A good example of this arose in sentencing issues.  Sentencing became an issue for several reasons: local government and society views on criminality and justice and military views on just sentencing.  Afghanistan did not share the same value of human life or imprisonment as the military leaders.  My experience arises also from missions to other counties in what I would describe as stabilization missions in support of international organizations and the State Department.   I attempted to work the JCIP operations in line with OPDAT missions with some limited success.  In fact, OPDAT provided two DOJ prosecutors to work at the JCIP.  Again, the friction between military and civilian interests and philosophies interfered with desired goals for this our mission.

An example of this was a prosecution of a detainee who had placed a roadside bomb.  When the bomb exploded it killed a young Afghan girl.  The detainee was found guilty and sentenced to around ten years.  This sentence was one of the highest imposed by the Afghan judges.  In a western view, a ten year sentence for the murder of a child would be life.  This sentence angered our military leaders who felt justice was not served.  However, in Afghanistan the value of a human life is not as high.  In explaining this to me, the Afghan judges argued that whether one lived or died was up to God.[xvii] Thus, the fact that a young child died was not tragic and did not in and of itself require a life sentence.  It was my professional view that the judges were following Afghan law as interpreted by Afghan societal views and that we must accept their judgment.

The friction between military and civilian interests arises from crossing the lines of ROL.  The military interest is in affecting security.  The civilian interest is in building capacity for stability and the return to normalcy.   Again, military leaders are not the best choice for running society as their skill set is in affecting security.  The State Department has the role of capacity building and helping societies developing a better and more resilient government.   As for the military interests, we were able to process hundreds of cases through the Afghan prosecutions.  These detainees could legitimately be considered Afghan prisoners and their care custody and control rightfully belonged with GoIRA.  Our ability to get these cases through the Afghan court system, gave the State Department a good starting point to further develop that capacity leading Afghanistan down the road of self-sufficiency. 

Conclusion

To be true practitioners in the ROL military leaders must understand and embrace the true nature of ROL in both internal and external contexts.  If we lack credibility in our internal ROL issues we will never obtain the support we need from other government agencies or international players.  When military leaders purvey ROL projects as a part of contingency operations we must be sensitive to all the underlying factors that influence ROL in specific locations around the world.  Aside from international law, there is no one size fits all.  If sustainability and irreversibility are to remain a part of ROL in military operations we cannot impose views only consistent with a U.S. view point.  We also must avoid competing ROL efforts by recognizing the appropriate time and place for these operations.  No one is served when turf battles erupt.  It is on each one of us who work in the area to avoid them. 

There are many lessons to be learned through my experiences in Afghanistan.  First, I believe we must keep expectations at a reasonable pace.  We cannot expect other societies to readily embrace changes we advocate.  The military needs to purvey ROL at all stages of any operation while providing security and maintaining a platform for other entities to affect their programs to build capacity.   I believe the U.S. military is very capable of following this model.  Yet, at times I saw ROL sidelined in the name of security.  I believe this was short sided, and actually compromised the safety of our troops.  Even when it is hardest, seeing our troops die and bleed on the battlefield, the military must at all times follow the ROL.  This is how we best protect those precious lives and make a lasting effect around the globe.

I have the utmost respect for the U.S.  State Department and its ability to bring very talented people to terrible situations.  These people are often overlooked but deserve great praise for the work they perform.  They too are capable of following this model.  The U.S. State Department can better understand the complexities of warfare and the military’s need to be decisive and forward leaning.  Sometimes military operations are not the best platforms to share capacity building but communication and empathy can go a long way to overcome misunderstandings.  I always said, “Flexibility is the key to mission success.”

The warriors on the field of battle need us to get this right.  If we don’t, we risk disillusion among the local populace further endangering our troops.  If we do, the local populace will start to identify with our efforts on their behalf resulting in better cooperation with our efforts.  Since my son deployed as an infantryman, and my son in law deployed as a signalman both in Iraq, thus the safety of our troops is paramount in my mind.  Those of us involved in the periphery of the fight owe it to these brave men and women to do our best.  We also owe the societies in which we operate in that we believe in and follow the Rule of Law.   Our reputation as a global leader is at stake and as I learned at The Hague many people are watching us, thus our ROL house must be in order.

End Notes

[i] The “Rule of Law” is a term that escapes a precise definition, but is the subject of discussions at all levels of society.

[ii] The title, a man in the arena, is an excerpt from the speech (Roosevelt 1910) by Theodore Roosevelt "Citizenship in a Republic" delivered at the Sorbonne, in Paris, France on 23 April 1910.

[iii] (Agrast, et al. 2013)

[iv] James Dapper, Benes Aldana and Jeremy Greenwood, Moving From the Rule of Personality to the Rule of Law, The Public Lawyer Summer 2013 (Dapper, Aldan and Greenwood 2013)

[v] Many times this is referred to as “Witness Protection” but the U.S. DOJ program is actually the Witness Security Program or “WITSEC.”

[vi] Training Afghans 'Shohna ba Shohna,' was an actual term used to describe our combined efforts at getting Afghans to step up and run their own government.  Available at http://www.army.mil/article/50718/training-afghans-shohna-ba-shohna-shoulder-to-shoulder/

[vii] “GIRoA” was the general term used for the central government in Kabul.

[viii] For a detailed real world description of DRB operations see John J. Wojcik, Detention Operations in Afghanistan, The Thomas M. Cooley Journal of Practical and Clinical Law, Vol. 14 issue1. 2011; for an academic description see also: Jeff Bovarnick, Detainee Review Boards in Afghanistan: From Strategic Liability to Legitimacy, 2010 Army Law. 9, 15, available at http://www.loc.gov/ rr/frd/Military_Law/pdf/06-2010.pdf.

[ix] The Asymmetric Warfare Group is a United States Army Special Mission Unit created during the War on Terrorism to mitigate various threats with regard to asymmetric warfare, available at http://en.wikipedia.org/wiki/ Asymmetric_Warfare_Group

[x] The prosecutor was found sleeping on the floor of his office in a remote village having no support or resources to do his job.

[xi] The NDS is an agency that resembles both the Central Intelligence Agency (CIA) for intelligence collection and the Federal Bureau of Investigation (FBI) for investigation of domestic crimes. Interestingly, the NDS has its own prosecutors in addition to prosecutors who also work for the Afghan Attorney General.

[xii] I do not discuss the particulars of this case as others are better suited for that; rather, I use the existence of an actual case that started Afghan prosecutions.

[xiii] BG Mark Martins drove very hard to get funding for the construction of the JCIP; I followed up on his start of this project.

[xiv] In fact the very essence of CJIATF 435 was to coordinate our activities with the State Department and other civilian agencies as part of our own task force.

[xv] In the Afghan system trials are held before a panel of three judges.

[xvi] During my tenure, an alarming rate of juveniles involved in violent acts.  These juveniles were becoming very violent raising the need to prosecute them under Afghan law.

[xvii] The Islamic term is “Insha'Allah.”

 

About the Author(s)

Colonel Thomas L. English (Ret.) was the State Judge Advocate for the Michigan Army National Guard; he served in Afghanistan from March 2010 to May 2011. COL English retired from the Army after more than thirty years of service.

Comments

The question is -- or should be -- not rule of law or no but, rather, (1) whose rule of law and (2) to what end.

Our present running effort -- to impose our cultural norms on others -- causes us to try to implant Anglo-Saxon legal precedents, procedures and processes abroad.

Herein, many/most tribal and other societies already having highly functional customary law institutions and processes (e.g., a tribal chief applying a customary law handed down by oral tradition).

But these different versions of the "rule of law" cannot be allowed in those states and societies which the West wishes to transform more along modern western political, economic and social lines; this, so as to achieve greater access to and greater utilization of their human and other resources.

Thus, it is not that the subject states and societies are not (1) effectively ordered, organized and oriented in some manner and (2) do not have functioning "rule of law" institutions and processes in place.

Rather, it is that these various "outlying" states and societies:

a. Are not ordered, organized and oriented as we desire/require and

b. Do not have "rule of law" institutions and processes in place that best service the wants, needs and desires of the more-modern/more-western states and their societies.

So while "their" rule of law systems may, indeed, be what these folks want, are used to and what works best for them, these legal systems (etc.) do not work for us and, thus, we have determined to replace their legal processes and systems (and, indeed, their complete political, economic and social structures) with institutions, systems and processes that we are more familiar with and which work best for us.

This, in effect, being the way that the imposition of western "rule of law" (etc.) should be viewed in the context of present US political and military operations?