In the United States and in the developed world generally, we take the rule of law to be the foundation of our societies. The alternatives are usually thought to be gang/mob rule, anarchy, and a return to pre-civilized days (as in The Road Warrior).

Personally, I think there’s a lot of truth to this, especially if you want a functioning modern economy (It’s well beyond my competence to discuss alternatives, such as tribal societies).

An Army captain and professor at West Point, Christopher M. Ford, published an important paper on this subject in the Jan/Feb 08 Military Review, which I commend to all visitors to this blog. While acknowledging that soldiers are not police, and especially not local police, CAPT Ford calls on commanders to ensure that their troops act in ways that support the rule of law:

The Army is not a police force, does not train all of its Soldiers in law enforcement techniques, and does not expect them to understand the intricacies of local criminal laws; nevertheless, commanders can adjust unit and resource priorities when there is a clear connection between acts of lawlessness and security.

Hard to argue with that, particularly when addressing the looting incidents that first showed the Iraqis and the world that we had lost control. But then he runs into the problems that all foreign occupying armies confront and that is that we can only take an American-centric approach to the rule of law. Suppose, he posits, you have a contract to give out to build a health clinic, and one of the bidders is “a powerful local sheik who has made it known that he will support the coalition and encourage his people to do the same if he gets the contract.” What do you do?

Regardless of the merits of the bid, awarding the contract to the sheik leaves the population with the impression that what transpired was business as usual. We may build the clinic, but we may also degrade respect for the rule of law.

Or we can not give it to the sheik, not get the clinic built, and wonder why tips on IEDs have suddenly dried up. While we proclaim the sanctity of the (US) Federal Acquisition Regulation, did we notice the loss of face and influence we inflicted on a potential ally? Did we notice that it may be customary in that part of the world for established local leaders (“sheiks”) to distribute wealth, including contracts, in accordance with local traditions? For that matter, what in the world are US Army troops doing awarding contracts anyway?

But there is an even more powerful point that CAPT Ford eloquently makes. Expediency may have unexpected but entirely predictable consequences:

We can find an analogous example in the practice of arming various groups and deputizing them to act as pseudo law-enforcement officers operating checkpoints, providing intelligence, and capturing insurgents.

Sort of sounds a like the “surge,” doesn’t it? But it doesn’t take an expert in Islamic law to predict unintended consequences. These guys, after all, are not doing these things because they suddenly like Americans:

This practice simultaneously undermines Iraqi security forces and encourages vigilante justice. While some units have had success with the practice in Al Anbar province, the long-term effects of such gray-market security are unclear. One day we will have to un-deputize these officers and persuade them to abide by the system we previously encouraged them to undermine. Doing so may prove difficult.

One might expect. Kudos to Military Review for publishing this important piece!