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DEPARTMENT OF JUSTICE JOURNAL OF FEDERAL LAW AND PRACTICE Volume 67 November 2019 Number 4 Acting Director Corey F. Ellis Editor-in-Chief Christian A. Fisanick Managing Editor Sarah B. Nielsen Associate Editors Gurbani Saini Philip Schneider Law Clerks Joshua Garlick Emily Lary Mary Harriet Moore Niki Patel United States The Department of Justice Journal of Department of Justice Federal Law and Practice is published by Executive Office for the Executive Office for United States United States Attorneys Attorneys Washington, DC 20530 Office of Legal Education Contributors’ opinions and 1620 Pendleton Street statements should not be Columbia, SC 29201 considered an endorsement by Cite as: EOUSA for any policy, 67 DOJ J. FED. L. & PRAC., no. 4, 2019. program, or service. Internet Address: The Department of Justice Journal https://www.justice.gov/usao/resources/ of Federal Law and Practice is journal-of-federal-law-and-practice published pursuant to 28 C.F.R. § 0.22(b). Page Intentionally Left Blank Rule of Law In This Issue Introduction ........................................................................................ 1 By Deputy Attorney General Jeffrey A. Rosen OPDAT Advancing the Department Mission and Rule of Law Across the Globe ................................................................................. 3 By Catherine Newcombe and Jill Westmoreland Rose Rule of Law in Time of War: The Trial of Saddam Hussein ..... 19 By David M. DeVillers Uncivil Disobedience: A Selfish Threat to the Rule of Law ..... 47 By John W. Huber and David Backman Homicide on the High Seas and Navigable Waters: The Seaman’s Manslaughter Statute, 18 U.S.C. § 1115 .............. 55 By Gretchen C.F. Shappert Human Trafficking Enforcement and the Rule of Law ............ 93 By Hilary Axam and Soumya Silver The Meaning, Measuring, and Mattering of the Rule of Law............................................................................................... 103 By Elizabeth Anderson and Ted Piccone A Brief History on the Formation of Government Ethics and its Importance to the Rule of Law ..................................... 125 By Krystal Walker and Rebecca Mayer The Role of Internal Oversight in Preserving the Rule of Law............................................................................................... 139 By Office of Professional Responsibility Rule of Law In This Issue You’re Not in Kansas Anymore: On the Ground with OPDAT .................................................................................... 149 By Beth Sreenan Living Outside the Rule of Law: The Data on Department of Justice Human Trafficking Prosecutions and Where We Go From Here ........................................................................... 169 By Elliott B. Daniels The Rule of Law Collaborative: A Center of Practical, Interdisciplinary Research, and Engagement on Pressing Rule of Law Issues Around the World ...................... 191 By Joel H. Samuels Rule of Law and Human Rights in Military Stability Operations: Clarifying the Military’s Role in Rule of Law Development .......................................................................... 211 By Ronald T.P. Alcala Rule of Law Development and the Need for a Whole of Government Team ..................................................................... 229 By Major General (Retired) Patrick J. Reinert Legitimacy and Rule of Law: A Military Practitioner’s Point of View ................................................................................... 245 By Lieutenant Colonel Nathan J. Bankson National Security Data Access and Global Legitimacy .......... 257 By Dylan Cors Understanding Misunderstanding: Lessons Learned from the Negotiation and Implementation of the Security Agreement Between the United States and Iraq ..................... 287 By Brigadier General Susan Escallier Rule of Law In This Issue Francis Fukuyama and the Rule of Law: A Book Review of Political Order and Political Decay by Francis Fukuyama ....................................................................................... 319 By Tate Chambers Note from the Editor-in-Chief ..................................................... 331 By Chris Fisanick Introduction Jeffrey A. Rosen Deputy Attorney General of the United States There are few concepts more fundamental to our system of government than the rule of law. The safety, security, and prosperity we enjoy are rooted in the principle that we are all accountable under a set of clearly established laws that apply equally to everyone. In the late seventeenth century, political philosopher John Locke advocated for a rule-of-law system in which government was “directed to no other end but the peace, safety, and public good of the people” and citizens were governed by “established standing laws, promulgated and known to the people, and not by extemporary decrees.”1 The founders enshrined this principle in our constitutional system by creating “a government of laws, not of men.”2 This commitment to the rule of law formed the foundation that has enabled our society to thrive. In the United States, our rule-of-law system includes checks and balances to ensure that no one part of government becomes too powerful. It provides for due process and equality before the law. It promotes peace by providing a predictable mechanism for resolving disputes. And it affords us a sense of security by setting expectations for behavior, supplying a system to adjudicate violations, and establishing penalties to punish those who break the law. As President Dwight D. Eisenhower aptly put it, “The clearest way to show what the rule of law means to us in everyday life is to recall what has happened when there is no rule of law.”3 At the Department of Justice (Department), promoting and protecting the rule of law is at the heart of our mission. As employees of the Department, we are called upon “[t]o enforce the law and defend the interests of the United States according to the law; to ensure public safety against threats foreign and domestic; to provide federal leadership in preventing and controlling crime; to seek just 1 JOHN LOCKE, TWO TREATISES ON CIVIL GOVERNMENT 258–59 (1689). 2 MASS. CONST. pt. 1, art. XXX (1780); John Adams, Essay 7, in Novanglus; Or, a History of the Dispute with America from Its Origin, In 1754, to the Present Time (1775). 3 Dwight D. Eisenhower, President of the United States, United States Law Day Address (May 1, 1958). November 2019 DOJ Journal of Federal Law and Practice 1 punishment for those guilty of unlawful behavior; and to ensure fair and impartial administration of justice for all Americans.”4 This directive places us on the front lines of the effort to promote and preserve the rule of law. Given its centrality to our work, I am delighted that this issue of the Department of Justice Journal of Federal Law and Practice centers on the rule of law. This diverse set of articles explores different aspects of the rule of law and highlights ways in which Department employees work to promote the rule of law both domestically and abroad. For example, in Uncivil Disobedience: A Selfish Threat to the Rule of Law, United States Attorney John W. Huber and Criminal Chief David Backman from the District of Utah describe efforts the Department is taking to combat the emerging threat posed by the normalization of criminal behavior. In Rule of Law in Time of War: The Trial of Saddam Hussein, United States Attorney David M. DeVillers from the Southern District of Ohio tells the compelling story of his work promoting the rule of law in Iraq through the Regime Crimes Liaison Office following the fall of Saddam Hussein. And in A Brief History on the Formation of Government Ethics and its Importance to the Rule of Law, Krystal Walker and Rebecca Mayer from the General Counsel’s Office of the Executive Office for United States Attorneys discuss how important it is that those of us in government adhere to the highest ethical standards. I want to thank all of the authors who contributed articles to this volume, as well as the editors who compiled it. At the Department of Justice, we have been entrusted with the awesome responsibility of enforcing the law. I am grateful for the work the Department’s more than 110,000 employees do every day to carry out that critical mission and to uphold the rule of law. 4 About DOJ, DEP’T OF JUSTICE, https://www.justice.gov/about (last visited Nov. 19, 2019). 2 DOJ Journal of Federal Law and Practice November 2019 OPDAT: Advancing the Department Mission and Rule of Law Across the Globe Catherine Newcombe Security Sector Assistance Coordinator and Regional Director Office of Overseas Prosecutorial Development, Assistance, and Training (OPDAT) Criminal Division Jill Westmoreland Rose Counsel for Global Counterterrorism Office of Overseas Prosecutorial Development, Assistance, and Training (OPDAT) Having been an OPDAT Resident Legal Advisor, not only am I a better, more knowledgeable and well-rounded prosecutor, but I have gained a worldwide network of law enforcement contacts that I draw upon to this day. Simply put, the OPDAT experience for an AUSA is an invaluable asset to any and every U.S. Attorney’s Office. U.S. Attorney Peter Strasser (E.D. La.) U.S. prosecutors deployed overseas by the Criminal Division’s Office of Overseas Prosecutorial Development, Assistance, and Training (OPDAT) provide invaluable assistance to partner countries in identifying, disrupting, and dismantling criminal activities that threaten U.S. interests at home and abroad.
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