Military Strategists are From Mars, Rule of Law Theorists are From Venus

• Author: Major Tonya L. Jankunis
• Pages: 06

16 MILITARY LAW REVIEW [Vol. 197

MILITARY STRATEGISTS ARE FROM MARS, RULE OF LAW THEORISTS ARE FROM VENUS:1 WHY IMPOSITION OF THE

RULE OF LAW REQUIRES A GOLDWATER-NICHOLS MODELED INTERAGENCY REFORM

MAJOR TONYA L. JANKUNIS*

I. Introduction

Military victory in Iraq and Afghanistan proved relatively easy for the United States and its coalition partners.2 This overwhelming success was due, in large part, to the top-down reorganization of the Department of Defense (DOD) put into practice by the 1986 Goldwater-Nichols Act.3

A work in progress for more than forty years, at times hotly resisted by the stakeholders even in the face of significant military debacles resulting from the disjointedness of the services,4 the Act has resulted in a meaner, leaner, much more agile and capable DOD.5 The success of the Goldwater-Nichols Act demonstrates that no matter how good an agency's intentions and subject matter expertise, sometimes it takes an act of Congress to mandate the coordination, cooperation, and leadership necessary to spur success in a changing world.6

In stark contrast to the initial overwhelming military success, post-conflict stabilization and reconstruction challenges in Iraq and Afghanistan have proven that winning the "peace" is a more elusive, ill-defined, costly, difficult, and long-term campaign.7 History dictates that the United States must win this campaign if we are to avoid repeating the past.8 If the United States is unsuccessful, failed and fragile states will endure as fertile breeding grounds for terrorist networks.9 Also,

regardless of whether a state fails or is led by a repressive regime, "human rights abuses and violence will recur and continue unchecked, posing ongoing threats not only to the residents of post-conflict societies but also to global peace and security."10 Either way, if we fail at reconstruction now, in the future we may need to re-intervene in a country with an even less receptive population.11 Finding a formula to get it right now is imperative, for the future likely holds only more of the same.12 Given this necessity13 for success in Afghanistan, Iraq, and

beyond,14 the question becomes: how has the United States fared in its nation-building15 efforts to date in post-conflict societies?

Unfortunately, the United States' stability and reconstruction track record in Afghanistan and Iraq has proven that the congressional framework established for the executive branch by the National Security Act of 1947,16 its amendments in 1949,17 and the Goldwater-Nichols Act of 198618 are insufficient to achieve our strategic objectives.19 Moreover,

an analysis of nation-building efforts prior to these two conflicts reveals an inconsistent track record where lessons learned are shortly thereafter forgotten within the executive branch until world events once again cause the cycle to repeat itself.20 Driven primarily by the recent lackluster results of U.S. operations in Iraq and Afghanistan,21 and in part by variable U.S. stabilization and reconstruction efforts over time,22 two

distinct schools of thought have emerged as to how best to ensure future successes in these complex nation-building enterprises. Notably, neither model is concerned with whether the beneficiary is viewed as the United States or the host nation.

Rule of law theorists or scholars comprise the first of these schools of thought. An examination of the theorists reveals the necessity for a uniform definition and application of the rule of law across the U.S. government if the United States is actually to achieve the rule of law in failed or fragile states. The second school of thought, consisting of

military strategists, highlights the failures of the national security apparatus in achieving highly integrated, coordinated, and successful interagency effort in today's complex contingency operations leading to the conclusion that the instruments of national power must be overhauled. I propose that the United States' successful implementation of the rule of law in failed or fragile states requires the merger of these two schools of thought. To accomplish this merger, I first draw on the rule of law theorists to propose that the United States universally adopt the United Nations' (U.N.) definition of the rule of law in all its operations. Second, to create an organizational entity capable of adopting and "synergistically"23 applying this definition in an operational setting, I draw on the military strategists' suggested overhaul of the national security apparatus and propose a revision of that apparatus tailored to accomplish the rule of law objective.

Part II of this article analyzes the various definitions and descriptions of the rule of law, including those espoused by U.S. government agencies, to conclude that the rule of law must be seen as a process. The formal and substantive components of the rule of law must be co-equally pursued from the inception of the intervention onward, with the ultimate goal of a host nation population "buy in" that results in the accomplishment of pre-defined ends.24 Further, to solve the "problem of knowledge"25 with the definition and implementation of rule of law, there must be a single, harmonious definition of the means and goals of any U.S. sponsored rule of law program.

As part of this analysis, Part II introduces the first of the two schools of thought-rule of law theorists. I label the first school of thought as theorists because they tend to focus on how to describe or define the rule of law, how those definitions or descriptions can be realized within a society, and the potential impact particular descriptions or definitions have on the sustainability of the rule of law in a given society.26

Unfortunately, none of the theorists translate their respective definitions and descriptions into concrete courses of action that actually achieve rule of law on the ground.27 At best, subscribers suggest that greater U.S. and international interagency coordination is needed to achieve a society "culturally committed"28 to the rule of law.29

Part II concludes by attempting to solve the "problem of knowledge" for U.S. government agencies. I propose in this section that the United States adopt the U.N. definition of the rule of law across all government agencies as a baseline that is synergistically tailored and applied to

various failed and fragile states.30 Substantively robust, this definition is capable of producing a "cultural commitment"31 by the host-nation if properly pursued from the planning stages of an intervention onward. As importantly, the substantive elements of this definition are critical to any U.S. definition of the rule of law because without them, there can be rules and institutions that create the illusion of the rule of law, but that nonetheless produce regimes inconsistent with U.S. national policy objectives.32 Additionally, because this definition has much in common with the various descriptions and definitions offered by a number of U.S. agencies, a shift to its uniform application should not be institutionally overwhelming.33

Part III discusses in detail the inadequacies of the current national security framework to achieve a robust and substantive definition of the rule of law that is uniformly defined and synergistically applied across agencies. By comparison to the deficiencies within the U.S. Government and the DOD that necessitated the National Security Act of 1947, its amendments in 1949, and the Goldwater-Nichols National Defense Reorganization Act of 1986, I argue that National Security Presidential Directive (NSPD) 4434 and the establishment of the Office of the Coordinator for Reconstruction and Stabilization35 are inadequate to

produce lasting changes.36 The only viable means of achieving the successful implementation of the rule of law in failed or fragile states is a robust coordinated interagency planning and implementation process. It is a full spectrum process that brings the weight of each agency's critical expertise at critical stages of the intervention and the establishment of the rule of law process. Part III concludes that because the existing national security apparatus is incapable of producing this highly coordinated robust effort, the national security apparatus must be fundamentally overhauled if the United States is to successfully meet the challenges of today and tomorrow.

To support my argument, I rely on and indirectly introduce the second of the two schools of thought, which I label military strategists. The military strategists acknowledge the national security objective, the complexities of the situation in Iraq, Afghanistan, and the broader global community, and the inadequacy of organization of the U.S. national security apparatus to address the problems associated with post-conflict stabilization and reconstruction operations due to a lack of unified interagency planning and action.37 After providing some examples of how a lack of interagency coordination adversely impacts operations on the ground, these strategists tend immediately to delve into a proposed reorganization of the national security apparatus.38 At best, military strategists dissect the problem while only assuming input from a nonDOD agency would favorably impact a situation. They fail to delve extensively into the breadth, type, or depth of expertise possessed by these other agencies and how a coordinated application and synchronization of efforts might shape future outcomes. For example, within the broader context of stability and reconstruction operations, these strategists do not consider in detail how input from rule of law theorists can and should influence the shape of the new organizations they propose.39

Part IV formally introduces the military strategists. Drawing on the discussion of the problems with the existing national security apparatus

as described in Part III, Part IV sets forth the various military strategist proposed revisions to...