After the fall of the Soviet Union, the United States embarked on a mission to assist the former Soviet Union and Warsaw Pact countries to establish democracies. The US saw as a key factor in establishing democracies that the emerging nations go through a period of transitional justice. One of the keys to transitional justice was to encourage these new nations and their governments to adhere to the rule of law. The Department of State spends billions of dollars on programs and training to encourage the rule of law, and many embassies have personnel assigned as Rule of Law Coordinators. Government officials from the former Soviet Union and Warsaw Pact countries were provided training in the many facets relating to the rule of law. Simply put, rule of law is the principle that governmental authority is legitimately exercised only in accordance with established, documented (in writing) laws that are transparent and enforced equitably, so that no one is above the law. Therefore, those who make the laws, and those that enforce the laws, are themselves bound to adhere to them.

For the countries that were undergoing a major transition from a totalitarian regime to democracy, this assistance with transitional justice was an initial test for the establishment of real democracy and the rule of law. Teaching, and establishing, the rule of law in a society that has little, or no history of it, is a major challenge. The most difficult challenge is changing the attitudes of government officials and the general public so that a political culture is created in which nobody is above the law.

United States foreign policy mandated an emphasis on the rule of law, and Secretary of State Condoleezza Rice, in remarks to the American Bar Association’s Rule of Law Symposium, said,

Where the rule of law is undermined by government corruption, we are offering incentives for honest and transparent behavior. Anti-corruption is one of the key standards of our Millennium Challenge Account initiative, an initiative that rewards good governance and the fight against corruption. And in just the past year, the Millennium Challenge Corporation has signed new development compacts with five countries that are worth hundreds of billions of dollars to those countries, each of which involves significant political and legal reforms.

America strives to realize our calling as a nation of laws, not of men, a nation that holds all governments and citizens, especially our own, to principles that transcend mere brute force or will to power.

America is a country of laws. We will always be a country of laws. And we will remain an international leader because we will be committed, not simply to our strength but to our love of liberty, our support for democracy and most of all, our devotion to the rule of law.

The USAID, at their website says this:

The term “rule of law” embodies the basic principles of equal treatment of all people before the law, fairness, and both constitutional and actual guarantees of basic human rights. A predictable legal system with fair, transparent, and effective judicial institutions is essential to the protection of citizens against the arbitrary use of state authority and lawless acts of both organizations and individuals.

In the past I was personally involved in training in the former Soviet Union relative to the rule of law and other associated law enforcement topics. During the training I would advise the participants that Albert Venn Dicey, a British constitutional expert, once wrote:

… every official, from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen. The reports abound with cases in which officials have been brought before the courts, and made, in their personal capacity, liable to punishment, or to the payment of damages, for acts done in their official character but in excess of their lawful authority. ÄAppointed government officials and politicians, alikeÅ … and all subordinates, though carrying out the commands of their official superiors, are as responsible for any act which the law does not authorise as is any private and unofficial person.

I would always like to discuss a real case of how the rule of law works in the US. For example, I could use the case of a US Congressman under investigation for bribery, who was caught on videotape accepting $100,000 in $100 bills from an FBI informant, and whose conversations about alleged illegal activity were recorded, and two search warrants executed to recover cash hidden in a refrigerator, and to seize incriminating documents being held in his congressional office.

I would point to the fact that one branch of government (the executive branch) went to a second branch of government (the judiciary) and presented information to establish probable cause and then, after receiving authorization, conducted consensual intercepts of conversations and executed search warrants on a member of the third branch of government (the legislature). I would point out how the FBI, in its almost 100 page affidavit for the search warrant of the congressional office clearly established probable cause, established that they exhausted every effort to get the documents from the Congressman, established why they believed there were incriminating documents in his congressional office, and then wrote eight pages of procedures that they would use to ???????filter??????? and ???????minimize any potentially politically sensitive items,??????? and to ensure that no documents were seized that may ???????fall within the purview of the speech or debate privilege of the US Constitution, Article I, section 6, clause 1, or any other privilege.??????? I would point to this as a perfect example of the rule of law, and to the tenet that no one is above the law.

When I finished, I know that one or more of the participants of the training would raise their hands to ask questions. The questions would go something like this: But, isn????????t your legislative branch of the government going to hold hearings about the abuse of their offices? Aren????????t the Congressman saying that they are above the law? Didn????????t I read that the US Congress is going to pass legislation to restrict law enforcement from executing search warrants on members of Congress. Didn????????t you tell us that the rule of law means that those who make the laws, and those that enforce the laws, are also bound to adhere to them? I heard one of your Congressman on televison say that the FBI ignored the wishes of ???????our police,??????? does your legislative branch have their own police that protects them when they violate the law?

I would have to answer, yes, Representative F. James Sensenbrenner Jr., Republican of Wisconsin, called the search “profoundly disturbing.” He also said that he planned a legislative response to the search, and his bill would be patterned on a law limiting searches of news media offices. Yes, House Speaker Dennis Hastert and House Minority Leader Nancy Pelosi together criticized the FBI’s search of the office of a Congressman who is under investigation in connection with the alleged acceptance of bribes. Yes, House majority leader John Boehner of Ohio told reporters yesterday that Congress will somehow speak to ééthis issue of the Justice Department’s invasion of the legislative branch. In what form, I don’t know.” Yes, I would say, one Congressman from California, being interviewed on FOX News, called the Capitol Police, ???????our Police.??????? Yes, the Capitol Police did protect a Congressman when he was driving, obviously impaired, and yes, they did try to prevent the FBI from executing the search warrant.

At this point I would tell the participants we are going to take a break before they could ask more questions, and then I would retreat to the men????????s room wondering why we spend billions of dollars trying to convince other governments of the importance of the rule of law, when our own politicians have not grasped the concept. I would think back to 1994 when the Republicans in Congress issued the Contract with America which said, “FIRST, require all laws that apply to the rest of the country also apply equally to the Congress.”

I would return to the training knowing that the approval rating for Congress hovers at 21%, close to an all-time low, and that nearly 50% of all Americans believe that mostly everyone in Congress is corrupt????????at least the public gets it so maybe there is hope. Instead of passing legislation to restrict the rule of law, maybe Congress could pass a law to divert some of the funds being used to train foreign officials, and setup a training program on the rule of law for the US Congress.