International Law and Immigration

Ca. Int'l Law Journal VOL. 23, NO. 2, WINTER 2015

California Lawyers—Improving the Rule of Law in Afghanistan

By Thomas J. Umberg and Fatima Murchal*

In 2009, the newly appointed commander of the International Security Assistance Force ("ISAF") in Afghanistan, U.S. Army General Stanley McCrystal, analyzed what threats existed in Afghanistan that would affect the United States and our national security interests. Afghanistan had been the safe harbor where Al Qaeda planned, recruited, trained, financed and ultimately launched attacks on the U.S. Embassies in Tanzania and Kenya in 1998, the USS Cole in 2000, and the United States itself on 9/11. General McCrystal’s analysis concluded that there were two basic threats that were degrading the people’s security and providing an environment that was generating recruits for insurgent groups: 1) the kinetic threat posed to the physical security of the Afghan population by the insurgent groups— Al Qaeda and the Taliban; and 2) the longer term threat of inadequate governance, corrupt officials, and the lack of economic opportunity, particularly for young people. Of these two, General McCrystal viewed the latter as the more pernicious of the threats and most important to address in preventing Afghanistan from returning to an incubator for terrorism.1

Governance and corruption challenges are not unique to Afghanistan, but Transparency International historically has rated Afghanistan in the bottom three of the 175 countries assessed in its Corruption Perceptions Index. Afghanistan’s low ranking "is likely a sign of widespread bribery, lack of punishment for corruption and public institutions that don’t respond to citizens’ needs."2 Even before General McCrystal identified these same deficiencies, the U.S. State Department recognized the establishment of the rule of law in Afghanistan as integral to U.S. security interests and sought the assistance of the private Bar to support its rule of law effort. In 2007, private-sector lawyers, along with judges and law firms— most notably lead by Californians Robert O’Brien of Arent Fox and U.S. District Court Judge David O. Carter—began to play a role in assisting the U.S. State Department in their mission to improve the rule of law in Afghanistan. With the support of then Secretary of State Condoleezza Rice, the Public Private Partnership for Justice Reform in Afghanistan was formed and is now known as the Partnership for Justice Reform in Afghanistan ("PJRA").

The PJRA’s original projects focused on training Afghan judges, defense lawyers, and prosecutors in two-to-three week training sessions conducted in the U.S. Soon after its formation, the PJRA leadership recognized the need for a more substantial investment in people and projects that would produce longer term returns. To achieve long term educational objectives, more deeply instill the tools and values to withstand the pressures to succumb to corruption, and to grow a network of mutually supporting lawyers determined to improve the rule of law within Afghanistan, the PJRA established one-year scholarships for Afghan lawyers to earn LL.M. degrees in U.S. law schools. In addition, the PJRA founded The Rule of Law and Human Rights Center at the University of Herat in eastern Afghanistan.

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