Bangladesh rapid action battalion: Satisfying the requirements of the leahy amendment with a rule of law approach

Author:Michael J. O'Connor
Position:Judge Advocate, U.S. Army
Pages:182-230
 
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182 MILITARY LAW REVIEW [Vol. 215
BANGLADESH RAPID ACTION BATTALION:
SATISFYING THE REQUIREMENTS OF THE LEAHY
AMENDMENT WITH A RULE OF LAW APPROACH
MAJOR MICHAEL J. O’CONNOR
Our words must be judged by our deeds; and in striving for
a lofty ideal we must use practical methods; and if we cannot
attain all at one leap, we must advance towards it step by
step, reasonably content so long as we do actually make
some progress in the right direction.1
I. Introduction
Security forces throughout the world are confronting asymmetrical
threats unlike any in modern history.2 Terrorist organizations are using
Judge Advocate, U.S. Army. Presently assigned as Deputy Chief, International and
Operational Law, U.S. Army-Europe, Wiesbaden, Germany. LL.M., The Judge Advocate
General’s School, U.S Army, Charlottesville, Virginia; J.D., 2002, Suffolk University
Law School, Boston, Massachusetts; B.A., 1999, University of Massachusetts, at Boston.
Previous assignments include Brigade Judge Advocate, 3d Stryker Brigade Combat
Team, Joint Base Lewis-McChord, Washington, 2011–2013; Brigade Judge
Advocate/Combined Task Force Judge Advocate, 3d Stryker Brigade Combat Team and
Combined Task Force–Arrowhead, Kandahar Province, Afghanistan, 2011–2012; Deputy
Staff Judge Advocate, Special Operations Command, Pacific, Camp H.M. Smith, Hawaii,
2008–2010; Battalion Judge Advocate, 2d Battalion, 5th Special Forces Group
(Airborne), Fort Campbell, Kentucky, 2006–2008; Task Force Judge Advocate, Special
Operations Task Force–Central, Baghdad, Iraq, 2007–2008; Command Judge Advocate,
2d Combat Aviation Brigade, Camp Humphreys, South Korea, 2005–2006; Intelligence
Attorney, Joint Interrogation and Debriefing Center, Multi-National Forces–Iraq, Abu
Ghraib, Iraq, 2004–2005; Office of the Staff Judge Advocate, Fort Bliss, Texas, 2003–
2005 (Acting Chief, Administrative Law, 2004; Labor Attorney, 2004; Chief, Claims,
2003–2004). Member of the Bars of Massachusetts, the Court of Appeals for the Armed
Forces, and the Supreme Court of the United States. This article was submitted in partial
completion of the Master of Laws requirements of the 59th Judge Advocate Officer
Graduate Course.
1 Theodore Roosevelt, Nobel Lecture, Nobel Peace Prize of 1906 (May 5, 1910),
available at http://nobelprize.org/nobel_prizes/peace/laureates/1906/roosevelt–lecture.
html (last visited Aug. 18, 2013).
2 See BRUCE VAUGHN ET AL., CONG. RESEARCH SERV., RL 34194, TERRORISM IN
SOUTHEAST ASIA (Oct. 16, 2009) (detailing the spread of terrorist organizations, such as
Jemaah Islamiyah, Lashkar–e–Taiba and al Qaeda in Pakistan, Indonesia, and other
Southeast Asian nations); BRUCE VAUGHN, CONG. RESEARCH SERV., RS 22591, ISLAMIST
EXTREMISM IN BANGLADESH 10 (Jan. 31, 2007). See also Symposium, Dealing with
Today’s Asymmetric Threat to U.S. and Global Security: The Need for an Integrated
National Asymmetrical Threat Strategy, SOURCE 2 (May 2008), stating,
2013] BANGLADESH RAPID ACTION BATTALION 183
technology, international financial and criminal networks, and the
Internet to decentralize their command and control structure, increase
their mobility, obscure their intentions, and increase their lethality.3
These organizations are constantly evolving their tactics, techniques and
procedures, while seeking out safe havens in developing nations and
border regions.4 Foreign security forces need to develop their
capabilities to address these threats.
In developing nations, such as Bangladesh, Indonesia, and Malaysia,
security forces are struggling to meet their internal security needs while
also attempting to counter these terrorist groups.5 Some of these nations
have experienced recent political upheaval, such as coups, military
instability, and religious division.6 Typically, these security forces are
inexperienced, underfunded, and undertrained compared to the threats
that they face.7 Without adequate training, these security forces will be
unable to maintain advantages against constantly evolving terrorist
organizations.
This terrorist threat, grown on a foundation of instability and
religious extremism, has capably and creatively leveraged
technology, strategic communications, and divergent Western
policies and priorities to enhance both its credibility and efficacy. As
a result, the U.S. must rethink the policies, structures, and processes
that have guided its national security strategy for the past 60 years.
3 See, e.g., UNITED STATES ARMY TRAINING AND DOCTRINE COMMAND, MILITARY GUIDE
TO TERRORISM IN THE TWENTY–FIRST CENTURY, G2 HANDBOOK (2007) (detailing the
evolving threat of terrorism); The Use of the Internet by Islamic Extremists, Testimony
before the House Permanent Select Committee on Intelligence, 109th Cong. (2006)
(statement of Bruce Hoffman), available at http://www.rand.org/pubs/testimonies/2006/
RAND_CT262–1.pdf (last visited Feb. 10, 2011) (detailing use of technology by terrorist
groups); and DR. MARTIN J. CETRON & OWEN DAVIES, 55 TRENDS NOW SHAPING THE
FUTURE OF TERRORISM 39–42 (Feb. 2008), available at http://www.carlisle.armyh.mil/
proteus/docs/55–terror.pdf (last visited Feb. 1, 2011) (detailing evolving threat and trends
in terror).
4 See OFFICE OF THE COORDINATOR FOR COUNTER–TERRORISM, U.S. DEPT OF STATE,
COUNTRY REPORTS ON TERRORISM, 2009, at 208–12 (Aug. 2010) [hereinafter COUNTRY
REPORTS], available at http://www.state.gov/documents/organization/141114.pdf (last
visited Aug. 22, 2013) (providing annual congressional report on terrorism).
5 Id. at 212–14 (describing efforts to counter terrorist organizations). See also Taj
Hashmi, Bangladesh: The Next Taliban State?, SIMON FRASER UNIV. (Vancouver, Can.
(Feb. 9, 2005), available at http://www.muktomona.com/Articles/taj_hashmi/ (last visited
Aug. 18, 2013); and VAUGHN ET AL., supra note 2 at 6.
6 See infra Parts II and III (discussing the challenges of security forces in South America,
Asia and Africa).
7 See infra Part IV (describing deficiencies of Bangladesh security forces).
184 MILITARY LAW REVIEW [Vol. 215
In Bangladesh, for example, a caretaker government was instituted in
2006 to stabilize the government, deal with corruption, run the general
election, and provide internal security.8 In response to political
instability and increasing criminality, the government granted a
paramilitary security force, the Rapid Action Battalion (RAB) (barely
three years old), extensive powers to curtail criminal and terrorist
activities.9 This unit provided much-needed law enforcement and
security as the nation stabilized, but, due to poor training and tactics,
received numerous complaints of excessive use of force, misconduct, and
human rights violations.10
Current U.S. law, known as the Leahy Amendment, prohibits U.S.
forces from training a nation’s security forces that have a history of
human rights violations and have failed to take appropriate corrective
actions to address these violations.11 Problematically, these nations
frequently experience significant internal and transnational threats, while
attempting to implement democratic and legal reforms to improve their
limited abilities to adequately address past violations. As a result, these
nations cannot overcome the requirements of the Leahy Amendment,
which has impeded the ability of U.S. forces to conduct military and
security force training for host nation security forces, such as the RAB,
without undergoing significant Rule of Law efforts.
8 RAPID ACTION BATTALION, http://www.rab.gov.bd/about_us.php?page=2 [hereinafter
RAPID ACTION BATTALION] (last visited Aug. 23, 2013); see also Abu Sufian, RAB Comes
into Being in a Month, NEWS FROM BANGLADESH, Feb. 19, 2004, available at
http://www.bangladesh–web.com/ (last visited Aug. 18, 2013). JOYEETA
BHATTACHARJEE, A YEAR OF CARETAKER GOVERNMENT IN BANGLADESH (2008). The
Bangladesh Constitution institutes a caretaker government, designed to maintain basic
public services and law enforcement, during a time of transition to a democratic
government, or when the Parliament is desolved. Id.
9 HUM. RTS. SCHOOL, LESSON 1: BANGLADESHS STATE OF EMERGENCY AND RELATED
LEGISLATION (Feb. 2008), available at http://www.hrschool.org/doc/mainfile.php/
lesson52/193/ (last visited Aug. 18, 2013); see also Sufian, supra note 8.
10 See generally HUM. RTS. WATCH, JUDGE, JURY AND EXECUTIONER: TORTURE AND
EXTRAJUDICIAL KILLINGS BY BANGLADESHS ELITE SECURITY FORCE (Dec. 2006)
[hereinafter JUDGE]; Shamim Ashraf, Extra–judicial Killings Call for Unbiased Probe,
DAILY STAR, May 21, 2005, http://www.thedailystar.net/2005/05/21/d5052101033.htm
(last visited Feb. 1, 2011).
11 The Department of Defense and Full-Year Continuing Appropriations Act of 2011, §
524, states “None of the funds made available by this Act may be used to support any
training program involving a unit of the security forces of a foreign country if the
Secretary of Defense has credible evidence from the Secretary of State that a member of
such unit has committed a gross violation of human rights, unless all necessary corrective
steps have been taken.” Pub. L. No. 112–10, § 8058(c), 125 Stat. 38 (2011).

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