Government corruption and weak rule of law could undermine success of the U.S. strategy in Afghanistan, a risk both President Obama and Joint Chiefs of Staff Chairman Mike Mullen underscored during their visits there this week.
The pressure from the administration comes about 50 days after beginning its last major offensive in Marjah, where the U.S. and allies are trying to build a new local government answerable to Afghan President Hamid Karzai. It also comes roughly two months ahead of its next offensive in Kandahar, where Karzai's half-brother, Ahmed Wali Karzai, heads the provincial council and reportedly is linked to the illicit opium trade. A senior U.S. military official warned that he could become a target if found assisting insurgents, according to Reuters.
"We will be unable to succeed in Kandahar if we cannot eliminate a vast majority of corruption there and set up a legitimate governance structure," Mullen told reporters Tuesday.
Kandahar is the second-largest city in Afghanistan and the Taliban's spiritual birthplace.
The U.S. strategy calls for a credible Afghan government that has the support of Afghans and is capable of administering the country after U.S. and NATO forces begin leaving July 2011. Yet an ABC/ARD/BBC poll conducted in December 2009 shows that 95 percent of Afghans surveyed said official corruption is a problem in their area, and 83 percent call it a problem in the national government in Kabul.
In 2009, Afghanistan ranked as second-most-corrupt country in the world, after Somalia, according to Transparency International's 2009 corruption perception index.
The U.S. and allied countries are working with Afghan leaders on programs designed to create and train Afghan bureaucrats, judges and lawyers on governance, justice and the rule of law. One such initiative is the Public-Private Partnership for Justice Reform in Afghanistan (PPP), run by the State Department and American legal professionals, which brings Afghans to American universities to study law and attend training programs.
However, former Ambassador Peter Galbraith, who stepped down last fall as U.N. deputy special representative to Afghanistan after alleging widespread election fraud in the Afghan national election, was not hopeful for the programs' success.
At a recent lecture hosted by the Marine Corps University's Middle East Studies program, he pointed out at least three challenges to efforts to strengthen the rule of law in Afghanistan.
First, he said, training Afghans on the rule of law doesn't necessarily mean it will improve governance in Afghanistan.
"We may get trained Afghan lawyers, but we may not get justice in Afghanistan because we really haven't looked at the root cause of the problem," he said.
The root cause of the problem, he said, is that local power brokers abuse their positions and operate with impunity -- a condition these programs can't change by themselves.
Second, he said, just because there are trained officials in office doesn't mean those power brokers still aren't running things.
"Getting people out of office and getting them out of power are two different matters and we, in a very linear way, have focused very much on getting them out of office," he said. "And we haven't broken the power that they have. And I'm not sure that I see any real way to do it."
Third, he cited weak enforcement mechanisms to uphold the rule of law -- namely, the lack of a competent police force.
For instance, he said, "In Kandahar, a village -- a local power broker comes, he takes away the orchard from the village. The village goes to court and gets a judgment restoring the orchard. That would be a remarkable achievement. It wouldn't really get that far, but [if] they do and then it's not enforced, they still can't get their orchard back. And in that sense, then, they lose faith in the government.
"We are very far from being able to have an Afghan police that can operate like a police force and, in fact, I don't think we can achieve that at all," he added.
Legal Experts Say Afghanistan Improving Rule of Law
Kerry Healey, former Massachusetts lieutenant governor and executive committee member of the PPP, strongly disagreed with Galbraith's assessment.
Although Galbraith draws a correct picture of the current state, there's no reason to believe it is a static situation that cannot be changed, Healey said.
Healey traveled to Afghanistan in 2008 on a State Department-sponsored assessment mission to determine what was already being done vis-a-vis rule of law by various U.S., Afghan and NATO agencies and NGOs, and what more needed to be done.
Programs like PPP, she said, are building a nascent community of Afghan lawyers who recognize the potential of the rule of law to transform their nation. Already, she said, Afghanistan has moved from a system of extreme suppression to one where there is an infrastructure of rights and presumption of rights.
She said Afghans who participate in the program are uniformly optimistic about the future in Afghanistan.
"That optimism is never voiced by Americans who view Afghanistan from the outside," she said. "They understand the potential of rights, of having rights."
In fact, Healey said, one of the participants in PPP's defense lawyer training in Boston and Washington, D.C. last month was the founder of the first all-female law firm in Kabul, Parwin Hamkar.
Healey said there is only about 850 defense lawyers in all of Afghanistan for 30 million people. But she said the number is growing, and with it there is a growing sense of professionalism and consistency of training.
"Once that small group of educated lawyers in Afghanistan exist, then bringing the ethos of rule of law into Afghanistan becomes much more possible," she said.
Healey said she's worked with the Afghan supreme court, minister of justice and the attorney general to allow their lawyers to participate in training programs.
"They have been extremely cooperative with us to this point," she said. "I have no concerns about that. The lawyers who have worked with us are extremely aware and blunt with us about all the things" Galbraith mentioned.
Healey said it could take as long as 10 to 20 years to create a functioning court and justice system in Afghanistan. But despite the lack of institutional infrastructure, she said Afghans say to her, "Please give us a small period. Don't give up on us yet."
Hiram Chodosh, dean of the University of Utah's SJ Quinney College of Law and another PPP executive committee member, said he generally agreed with Galbraith's assessments, but disagreed with his pessimism.
"I think that not only in Afghanistan but in the history of rural reform, that European and American reformers have vastly underestimated the challenges of changing institutional and individual behavior," Chodosh said. "To think that it can be done by remote control is Pollyanna-ish."
But, he said, to leave with complete pessimism is to throw up one's hands.
"I agree with the critique, but might depart with the ambassador on where we should be going," he said.
Chodosh said it is important to ask, "How can we learn from prior mistakes or weaknesses in our effectiveness?"
However, he added, resistance to training Afghans at sub-national levels of government is a mistake.
"You want to target people who have prior experience," he said, not just law graduates who are "very smart but aren't familiar with those processes and the problem sets they have to deal with that has so many challenges, including illiteracy."
"The folks working have to be clever enough to work with a legal process that is not necessarily based on written text," he said.
Galbraith admitted there was some progress in Afghanistan, particularly on providing health services and on women's rights. But as far whether he thought Karzai would tackle official corruption, he clearly pulled no punches.
"It is as Johnson said of second marriages: the triumph of hope over experience," Galbraith said. "But in this case, it goes beyond that."