364 Ko Judicial Legitimacy Impacts

Legitimacy Impacts William Huang

DDI ‘08 Kernoff/OlNEY

Judicial Legitimacy Impacts Judicial Legitimacy Impacts........................................................................................................................................................................1 Terrorism......................................................................................................................................................................................................2 DemoPromo.................................................................................................................................................................................................3 DemoPromo.................................................................................................................................................................................................5 Russian Democracy.....................................................................................................................................................................................6 Russia Models US........................................................................................................................................................................................7 Russian Economy.........................................................................................................................................................................................8 Russian Accidental Launch..........................................................................................................................................................................9 Democracy.................................................................................................................................................................................................10 Economy....................................................................................................................................................................................................11 Turns Case..................................................................................................................................................................................................12

-1-

Legitimacy Impacts William Huang

DDI ‘08 Kernoff/OlNEY

Terrorism Judicial legitimacy key to stop terrorism Jeremy Shapiro, Associate Director and Research Associate, Brookings Institute, March 2003, “French Lessons: The Importance of the Judicial System in Fighting Terrorism http://www.brookings.edu/fp/cusf/analysis/shapiro20030325.htm The unique nature of terrorism means that maintaining the appearance of justice and democratic legitimacy will be much more important than in past wars. The terrorist threat is in a perpetual state of mutation and adaptation in response to government efforts to oppose it. The war on terrorism more closely resembles the war on drugs than World War II; it is unlikely to have any discernable endpoint, only irregular periods of calm. The French experience shows that ad-hoc anti-terrorist measures that have little basis in societal values and shallow support in public opinion may wither away during the periods of calm. In the U.S., there is an enormous reservoir of legitimacy, established by over 200 years of history and tradition, in the judiciary. That reservoir represents an important asset that the U.S. government can profit from to maintain long-term vigilance in this type of war. Despite the unusual opportunity for innovation afforded by the crisis of September 11, the U.S. government has not tried to reform American judicial institutions to enable them to meet the threat of terrorism. To prevent the next wave of attacks, however far off they might be, and to avoid re-inventing a slightly different wheel each time will require giving life to institutions that can persist and evolve, even in times of low terrorist activity. Given the numerous differences between the two countries, the U.S. cannot and should not simply import the French system, but it can learn from their mistakes. Their experience suggests a few possible reforms: • A specialized U.S. Attorney tasked solely with terrorism cases and entirely responsible for prosecuting such cases in the U.S. • Direct and formal links between that U.S. Attorney’s office and the various intelligence agencies, allowing prosecutors to task the intelligences agencies during judicial investigations • Special procedures for selecting and protecting juries in terrorism cases and special rules of evidence that allow for increased protection of classified information in terrorist cases Creating a normal, civilian judicial process that can prosecute terrorists and yet retain legitimacy is not merely morally satisfying. It may also help to prevent terrorist attacks in the long run. Not incidentally, it would demonstrate to the world a continuing faith in the ability of democratic societies to manage the threat of terrorism without sacrificing the very values they so desperately desire to protect. Terrorism extinctions everyone. Mohamed Sid-Ahmed, Egyptian Political Analyst, Al-Ahram Newspaper, 8/26/2004, http://weekly.ahram.org.eg/2004/705/op5.htm What would be the consequences of a nuclear attack by terrorists? Even if it fails, it would further exacerbate the negative features of the new and frightening world in which we are now living. Societies would close in on themselves, police measures would be stepped up at the expense of human rights, tensions between civilizations and religions would rise and ethnic conflicts would proliferate. It would also speed up the arms race and develop the awareness that a different type of world order is imperative if humankind is to survive. But the still more critical scenario is if the attack succeeds. This could lead to a third world war, from which no one will emerge victorious. Unlike a conventional war which ends when one side triumphs over another, this war will be without winners and losers. When nuclear pollution infects the whole planet, we will all be losers.

-2-

Legitimacy Impacts William Huang

DDI ‘08 Kernoff/OlNEY

DemoPromo Lack of legitimacy prevents effective US democracy promotion – it’s impossible to promote values that are constantly fluctuating. Charles Krauthamer, Noted Essayist - writes for Foreign Affairs, The Washington Post, 7/4/03 http://www.sodomylaws.org/lawrence/lweditorials075.htm I once worked in government. On my first day, I raised my right hand and swore to uphold the Constitution. I thought I knew what that meant. Recently we have gone to war in Afghanistan, Iraq and a few other places, at least in part to advance democracy and promote our kind of constitutionalism. A foreigner might then ask: What exactly is your Constitution? Now we know the answer. The Constitution is whatever Justice Sandra Day O’Connor says it is. On any given Monday. That modifier is crucial, because she does change her mind, and when she does, so does the Constitution. Seventeen years ago, she ruled anti-sodomy laws constitutional. Now she thinks otherwise. Conservatives are distressed and liberals ecstatic about the outcome of recent decisions of this allegedly conservative court. In a few short years, it has enshrined in stone (1) abortion on demand, (2) racial preferences and (3) gay rights—the liberal trifecta, just about their entire social agenda, save shutting down the Fox News Channel. My concern about the court is less the outcome of these cases than the court’s arbitrariness and imperiousness. In 1992, I voted (in a Maryland referendum) to maintain legalized abortion, and yet I believe that Roe v. Wade was an appalling act of judicial usurpation that deserves repeal. And had I been a Texas legislator, I, like Justice Clarence Thomas, would have voted to repeal the sodomy law, but it was not the court’s place to do the people’s work when it struck down all such laws under an infinitely expansive notion of “privacy.”

Whenever one argues for this kind of judicial minimalism, however, the other side immediately unfurls the bloody flag of segregation. For the past half-century proponents of judicial activism have borrowed the prestige the court gained by being activist on civil rights and used it to justify judicial legislation in every other field of endeavor. On a recent edition of “Inside Washington,” for example, my friend and fellow panelist Colby King of The Post characterized my opposition to the sodomy decision as “right out of the Southern Manifesto.” It was a bit of a stretch (delivered with a bit of a smile). Invoking segregation is a clever tactic and a staple of judicial activism, but it fails because segregation was unique. The argument against judicial activism is that it impedes, overrides and destroys normal democratic practice. But in the segregated South there was

no normal democratic practice. Blacks were disenfranchised. They could not undo the injustice by legislative means because they had been deprived of those means. It was a Catch-22. That’s why the court had to intervene. That’s why the court was right to intervene. It did not mint new rights; it extended to African Americans the normal rights of democratic participation. The proof of this uniqueness of civil rights is the fact that once these disabilities were removed and blacks could fully participate democratically, even such archsegregationists as Strom Thurmond magically discovered—without any further court prompting—the brotherhood of man and the constituent needs of African Americans. This restoration of fundamental democratic practice simply does not apply to the cases in question today: abortion, affirmative action and gay rights. No one here is barred from participating in the political process. No one is systematically harassed or threatened. No one suffers cross burnings, beatings or worse for agitating on behalf of this or that cause. At one level, judicial activism is repugnant for reasons of simple democratic self-respect. Who do these robed eminencies think they are,

reading into “penumbras, formed by emanations” of the Constitution to create new norms and strike down others with the arbitrariness of Iran’s Council of Guardians? This is a democracy, after all. An even more important reason, however, is social peace. When you short-circuit the democratic process, you deprive a decision of legitimacy and prevent the stable social settlement of an issue. The genius of a pluralistic Madisonian democracy is that it allows the clash of factions in the legislature, working out messy settlements that, amended over time, allow for compromise and give even the losers a sense of having played the game and of having another chance next time around. All of this is lost when an issue is foreclosed by judicial fiat. Which is why I am pleased that the court did not abolish affirmative action by fiat, even though I would like to see it abolished tomorrow by legislation or referendum. Not just because this is a matter for the people to decide but because abolishing it by judicial decree would create a crisis of legitimacy and keep the issue aflame forever. Or until Justice O’Connor changes her mind again.

Democracy promotion is inevitable – lack of legitimacy in it causes global wars, while legitimate promotion solves all conflicts including a global nuclear war. Diamond, senior fellow at the Hoover Institute and coeditor of the Journal of Democracy, 05 [Larry. “Between Democracy and Stability” http://www.hooverdigest.org /051/diamond.html] Caporal How do we balance two conflicting imperatives for U.S. foreign policy: preserving the short-term stability of Arab regimes that have been friendly—or at least not explicitly and intractably hostile—to the United States and promoting a deeper, more organic stability in the region through democratic reform? Democracy Deficit The problem is stark. The Arab world is the only major region that does not have a single democracy. If we look at the Middle East in general, only Israel and Turkey are democracies. Of the 16 Arab states, only Lebanon has ever been a democracy, and only a few could be described today as even semi-democratic. Whereas the rest of the world has been moving toward democracy and greater freedom over the past three remarkable decades, the Arab world has remained politically stagnant. In fact, the Arab region is

-3-

Legitimacy Impacts William Huang DDI ‘08 Kernoff/OlNEY the only part of the world where the average Freedom House rating of political rights and civil liberties is worse today than it was in 1974. There is a serious problem with the nature of governance in the Middle East. The source of the problem, however, is not Islam as such. Forty-three nations in the world clearly have a Muslim majority. The 27 of these outside the Arab world have an average freedom score that is almost an entire

-4-

Legitimacy Impacts William Huang

DDI ‘08 Kernoff/OlNEY

DemoPromo point better, on the 7-point Freedom House scale, than the Arab states. Seven of those 27 Muslim nations are democracies; several other nations, such as Indonesia and Mali, are developing democracy; and democracy is visibly deepening in Turkey under a government led by a party that could be called in its orientation Islamicdemocratic.

The growing body of evidence shows that Muslims desire democracy pretty much to the same degree that people of other faiths do, particularly when we control for education and income. That is clearly the case in Africa and Central Asia. Even in the Arab world, evidence shows that people in the region value democracy and that there is not much of a relationship between religious attachment and support for democracy. These popular orientations among Muslims in the world correspond with the thinking of increasingly outspoken moderate Muslim intellectuals, who are making the case either for a liberal interpretation of Islam or for a broader liberal view that de-emphasizes the literal meaning of sacred Islamic texts while stressing the larger compatibility between the overall moral teachings of Islam and the nature of democracy as a system of government (based on such principles as accountability, freedom of expression, and the rule of law). Islam is undergoing a kind of reformation, with growing momentum among Muslim religious thinkers for a separation of mosque and state. Significantly, Arab intellectuals and civil society activists are themselves challenging the democracy and freedom deficit that pervades the Arab world. Demographic Time Bomb A growing number of Arab scholars, journalists, civic activists, and even some government officials, as well as numerous foreign observers of the region, are becoming convinced that the center cannot hold without democratizing political reform. The old cyclical games of tactical liberalization—opening today and repressing tomorrow—have run their course. Burgeoning populations—whose demographic profiles are tilted dramatically toward the young—are deeply frustrated by the pervasive economic stagnation, abuse of power, and social injustice. They are also better informed—or at least more independently informed—about what is happening in the world than they used to be, and they are better able to organize outside government control. And they are not going to sit back and take it any more: that is one message of 9/11. To the extent that Arab regimes do not reform politically and economically, they will erupt in one form or another over the coming years. What Thomas Friedman calls the “global supply chain” of suicide bombers is one form of eruption. The wave of venomous anti-Americanism is another. The rising tide of terrorist attacks inside Saudi Arabia is another. Sclerotic regimes that cannot generate jobs and hope at a faster rate than the population is growing cannot persist indefinitely. And the market-oriented economic reforms necessary to unleash economic growth are unlikely to occur without democratic change because, unless governments have much greater political legitimacy, they will not have the nerve, or the autonomy from the decades-long accumulation of vested interests, to take bold and difficult steps. There is a demographic time bomb ticking in the Middle East, and it is going to sweep away a lot of Western-leaning regimes sooner or later unless true reform begins soon. Promoting Democracy Of course, “later” could be a long time coming. Knowing that—knowing how efficient, cunning, and ruthless the state security apparatus is in many of these countries; knowing the opportunism and insecurity of middle-class opposition groups that do not want to rock the boat; understanding that change always carries short-term risks—American policymakers have tended to opt for the devil they know and leave the longer-term future to the next administration. That is why President Bush’s speech on November 6, 2003, to the National Endowment for Democracy, and his subsequent statements calling for a fundamental reorientation of American policy in the Middle East, was so visionary and courageous. Conceptually, the call for a broad shift in policy toward promoting democracy in the Middle East is bold and long overdue. Normatively and conceptually, we are at a historic juncture, where moral imperatives—to support human rights and promote peaceful democratic change—and security imperatives converge as never before. After 9/11, the political transformation of Middle Eastern regimes toward greater freedom, responsiveness, transparency, accountability, and participation—and therefore a real capacity to achieve broad-based human development—has become not just a moral imperative but a necessary foundation for the security of Western democracies as well. Creating a new climate in the region that is much less conducive to hatred and terrorism requires a sweeping improvement in the character and quality of governance. The question is, How do we do promote these changes in such a way that the search for an Arab Kerensky does not yield an Islamist Lenin instead? The tone and style of our approach are absolutely vital. Today in the Arab world, the United States is virtually radioactive; Arab democrats who come too close to it risk being contaminated and burned. The people of the Arab world profoundly suspect our motives. They think we are only in Iraq for the oil. And it is hard to dissuade them when the only building we protected as Baghdad was being systematically looted after it fell was the oil ministry. They think we seek long-term imperial domination in the region, and it is hard to dissuade them when we do not renounce any intention of seeking permanent military bases in Iraq. They think we only want democracy when it produces governments friendly to the United States. And it is hard to dissuade them when we have taken no practical steps to follow up on President Bush’s bold

speeches or to establish a dialogue with moderate Islamists in the region. We must promote democracy in the Middle East. Western governments need to overcome their past track records of inconsistency and double standards. The burden is on our own governments and societies to demonstrate that we are serious about promoting genuine democratic change and that we are willing to sustain a serious commitment even in the face of short-term risks and costs. Among the specific policy courses we recommend are the following: • The transatlantic democracies should do more to link their economic assistance directly to political reform and good governance, providing tangible benefits for countries that are making true progress on political and economic liberalization. • Benchmarks for actual behavior also need to be extended to other areas of cooperation, such as trade liberalization, debt relief, and symbolic honors such as high-level state visits. Middle Eastern governments that are not serious about reform should know that they will not benefit in the same way that reformers will. • The West must reexamine its relationships with the region’s security institutions. The United States and Europe should use their influence with friendly military and intelligence establishments to foster democratic change, to end repression against democratic forces, and to end the use of torture. • The Western democracies should exhibit more visible, consistent, and effective solidarity with democrats and human rights activists in the region who are under threat or in detention.

-5-

Legitimacy Impacts DDI ‘08 Kernoff/OlNEY

William Huang

Russian Democracy

Strong courts are key to Russian Democracy. Tom Bjorkman, federal executive fellow in Foreign Policy Studies at the Brookings Institution, officer in the CIA's analysis directorate, and the former research director of its Office of Russian and Eurasian Analysis, July 2001 “Russian Democracy and American Foreign Policy”, Brookings Institution http://www.brook.edu/comm/policybriefs/pb85.htm Analysts disagree on the reasons for Russia's failure to complete a transition to an effective democratic order. Some emphasize communism's grim legacy and the lack of historical experience with democratic values and behavior. Others emphasize leadership failures, especially Yeltsin's Byzantine style of rule and his failure to place a priority on building viable institutions to fill the vacuum left by the collapse of communism. But most agree on the results: Power remains concentrated in the executive branch and centered on informal networks and personal connections. Legislative and judicial institutions remain fragile. Protections for civil liberties are weak, and state harassment of independent journalists and civic activists is on the rise. Official corruption remains pervasive and movement toward a rule of law glacial. Western observers concerned about Russia's future view deeper democracy as the solution to Russia's problems. Public opinion polls show that the Russian public-and even more so Russian elites-continue to support democratic values by solid majorities. But in the current situation, most Russians identify as their first priority decisive action to halt the state's loss of capacity to provide essential services and to create a basis for sustained economic growth. The drop in living standards during the Yeltsin era, and the success of a small segment of the elite in exploiting Yeltsin-era reforms for their own benefit, have sharply reduced the influence of Russian liberals who argue that the best way to achieve these goals is to shrink the role of the state and move more boldly toward Western-style individual freedoms. Political forces centered in the federal security institutions-convinced that Russia's first priority is rebuilding the power of the state-have filled the vacuum. They give lip service to democracy but back policies that, in the pursuit of a more powerful state, allow the government a stronger role in managing political life and an ability to manipulate democratic institutions to limit political opposition. President Putin has spoken repeatedly about his commitment to democracy as the only way forward for Russia. He has rhetorically supported a free press, fewer but more potent political parties, an independent judiciary, and a vibrant civil society that can exert control over the state. At the same time, he has backed policies that increase the state's ability to restrict civil liberties and has sanctioned a government that has increasingly interfered in media and non-governmental organizations that it considers too critical of Putin's policies.

Risks and Opportunities for Democracy. For proponents of democracy in Russia, there are opportunities in the current political environment. As part of his effort to rebuild the state, President Putin and most of his administration appear committed to a package of liberal reforms that would strengthen the independence of the judicial branch-a first step toward checking executive power, improving protections of individual rights, and establishing a rule of law. Some elements of draft legislation governing political parties could work to increase the role those parties play and create a basis for the loyal but vigorous opposition that Russia still lacks. Putin's support for such structural change suggests he has put a higher priority on building effective political and economic institutions than Yeltsin. Putin's backing for such liberalizing reforms has given liberals a stronger influence on policy than their modest presence in the legislature alone would suggest. Failure of Russian Democracy causes nuclear war. Victor Irsraelyan, Soviet ambassador, diplomat, and arms control negotiator, Winter, 98' /Russia at the Crossroads: Don't Tease a Wounded Bear. Washington Quarterly/ Many would seek to revive a dictatorship and take urgent military steps to mobilize the people against the outside "enemy." Such steps would include Russia's denunciation of the commitment to no-first-use of nuclear weapons; suspension of the Strategic Arms Reduction Treaty (START) I and refusal to ratify both START II and the Chemical Weapons Convention; denunciation of the Biological Weapons Convention; and reinstatement of a full-scale armed force, including the acquisition of additional intercontinental ballistic missiles with multiple warheads, The first and by far most dangerous possibility is what I call the power scenario. Supporters of this option would, in the name of a "united and undivided Russia," radically change domestic and foreign policies.

as well as medium- and short-range missiles such as the SS-20. Some of these measures will demand substantial financing, whereas others, such as the denunciation and refusal to ratify arms control treaties, would, according to proponents, save

planners would shift Western countries from the category of strategic partners to the category of countries representing a threat to national security. This will revive the strategy of nuclear deterrence -- and indeed, realizing its unfavorable odds against the expanded NATO, Russia will place new emphasis on the first-use of nuclear weapons, a trend that is underway already. The power scenario envisages a hard-line policy toward the CIS countries, and in such money by alleviating the obligations of those agreements. In this scenario, Russia's military

circumstances the problem of the Russian diaspora in those countries would be greatly magnified. Moscow would use all the means at its disposal, including economic sanctions and political ultimatums, to ensure the rights of ethnic Russians in CIS countries as well as to have an influence on other issues. Of those means, even the use of direct military force in places like the Baltics cannot be ruled out. Some will object that this scenario is implausible because no potential dictator exists in Russia who could carry out this strategy. I am not so sure. Some Duma members -- such as Victor Antipov, Sergei Baburin, Vladimir Zhirinovsky, and Albert Makashov, who are leading politicians in ultranationalistic parties and fractions in the parliament -- are ready to follow this path to save a "united Russia." Baburin's "Anti-NATO" deputy group boasts a membership of more than 240 Duma members. One cannot help but remember that when Weimar Germany was isolated, exhausted, and humiliated as a result of World War I and the Versailles Treaty, Adolf Hitler took it upon himself to "save" his country. It took the former corporal only a few years to plunge the world into a second world war that cost humanity more than 50 million lives. I do not believe that Russia has the economic strength to implement such a scenario successfully, but then again, Germany's economic situation in the 1920s was hardly that strong either. Thus, I am afraid that

any political leader who would "dare to encroach upon Russia" would be decisively repulsed by the Russian Federation "by all measures on heaven and earth up to the use of nuclear weapons." n10 economics will not deter the power scenario's would-be authors from attempting it. Baburin, for example, warned that

-6-

Legitimacy Impacts William Huang

DDI ‘08 Kernoff/OlNEY

Russia Models US Russia uses a US model for its judiciary. James Billington, Chairman of the Board of Trustees of Open World Leadership Center, “ Statement of James H. Billington Chairman of the Board of Trustees Open World Leadership Center Before the Subcommittee on Legislative Branch Committee on Appropriations United States Senate” 4/19/05 http://appropriations.senate.gov/hearmarkups/FY06Senatetestimony.htm Open World’s specialized rule of law program is the largest U.S.-Russia judicial exchange. Working in close cooperation with federal judges associated with the International Judicial Relations Committee of the Administrative Office of the U.S. Courts, and with a network of state judges, Open World sponsors intensive, 10-day U.S. professional visits for Russian judges, judicial branch officials, prosecutors, defense attorneys, legal educators, and court staff. Since its inception in 2001, the program has enabled prominent jurists from all over Russia to observe and participate in the U.S. judicial system and to form lasting working relationships with their American judicial hosts and counterparts. Just last month, Justice Anthony M. Kennedy hosted a high-level Open World delegation at the U.S. Supreme Court for two days of intensive working sessions on U.S.-Russian judicial cooperation and the status of judicial reform in Russia. Our distinguished delegates were Russian Supreme Court Chief Justice Vyacheslav M. Lebedev, Justice Yuriy I. Sidorenko, who chairs Russia’s Council of Judges, and a top regional judge. Chief Justice William H. Rehnquist and Justices John Paul Stevens, Sandra Day O’Connor, Antonin Scalia, Ruth Bader Ginsburg, David Hackett Souter, and Stephen G. Breyer all participated in the Russians’ Supreme Court visit, as did U.S. District Judge Michael M. Mihm of Peoria, Illinois, and other prominent U.S. judges. Not only did the Russians discuss jury trials, judicial independence, and the rule of law with the highest judges in the land, they also saw the U.S. judicial system in action by observing oral argument at the Supreme Court and attending proceedings at the federal courthouse in Alexandria, Virginia. As the Lebedev delegation visit illustrates, the Open World specialized rule of law program contributes to Russia’s progress toward judicial reform by demonstrating the concepts and practices that underpin the United States’ strong, independent judiciary. By observing and discussing the workings of the U.S. legal system with their American counterparts, participants have developed a better understanding of some of the new procedures that they are being required to adopt by Russia’s judicial reform legislation, and they have demonstrated great enthusiasm for implementing many U.S. practices that are relevant to their own situations. Another important program outcome is the establishment and strengthening of a number of sister relationships between the courts of our U.S. host judges and those of their Open World participants. And American host judges have made return trips to Russia to participate in follow-up alumni work on the all-important issue of ethics. Judicial legitimacy in Russia is key to the Court’s authority and effectiveness Law and Society Review 2004 “Judicial Power in Russia: Through the Prism of Administrative Justice” http://www.findarticles.com/p/articles/mi_qa3757/is_200409/ai_n9435400 Finally, the power of judges includes "authoritativeness," in the words of Tyler and Mitchell, "the ability to secure public compliance with judicial decisions" (1994:717). Judicial authority is connected to the court's legitimacy and the reservoir of diffuse public support for courts as institutions, as well as to variations in public approval of a court's current work. New courts, and courts with recently acquired jurisdiction, often have difficulty inducing compliance. A good example is the Constitutional Court of the RF, some of whose ventures into areas of political controversy have gone unrealized, as officials in the executive and legislative branches and in the regions failed to make required changes in legislation. For a time, the Russian Constitutional Court also had trouble getting other courts to respect its rulings. At the same time, difficulties in implementing debt collection decisions of the Russian arbitrazh courts led to the establishment of a new service of bailiff-executors (Trochev 2002; Konstitutsionnyi Sud RF 2001; Solomon & Fogle-song 2000:Ch. 8; Kahn 2002).

-7-

Legitimacy Impacts William Huang

DDI ‘08 Kernoff/OlNEY

Russian Economy Strong Russian judiciary is key to it’s economy- corruption kills development and investment Ethan Burger, scholar-in-Residence, Transnational Crime & Corruption Center, School of International Service, Adjunct Associate Professor, American University, and Managing Director of International Legal Malpractice Advisors, Spring 2004 “Corruption in the Russian Arbitrazh Courts: Will There Be Significant Progress in the Near Term?” The International Lawyer, l/n For more than ten years, institutions such as the World Bank, European Bank for Reconstruction and Development, U.S. Agency for International Development, and others have invested significant resources in supporting the development of the Russian judiciary with the goal of furthering the establishment of the "rule of law" (as opposed to Russian President Vladimir Putin's "Dictatorship of Law") n1 in the country. n2 Sufficient time has passed to allow observers to take stock of these efforts. This article focuses on judicial corruption n3 in the Russian Arbitrazh [Commercial] Courts, n4 the fair operation of which influences Russia's economic development and its attractiveness to investors. n5 Despite the recognition of the problem of judicial corruption by foreign and domestic specialists, as well as commitments announced by Russian officials to address it, much remains to be done. n6 Russian economic collapse causes nuclear war Steven David, Prof Political Science @ Johns Hopkins, Jan/Feb 1999, Foreign affairs, p.lexis) If internal war does strike Russia, economic deterioration will be a prime cause. From 1989 to the present, the GDP has fallen by 50 percent. In a society where, ten years ago, unemployment scarcely existed, it reached 9.5 percent in 1997 with many economists declaring the true figure to be much higher. ( continues…) Should Russia succumb to internal war, the consequences for the United States and Europe will be severe. A major power like Russia -- even though in decline -- does not suffer civil war quietly or alone. An embattled Russian Federation might provoke opportunistic attacks from enemies such as China. Massive flows of refugees would pour into central and western Europe. Armed struggles in Russia could easily spill into its neighbors. Damage from the fighting, particularly attacks on nuclear plants, would poison the environment of much of Europe and Asia. Within Russia, the consequences would be even worse. Just as the sheer brutality of the last Russian civil war laid the basis for the privations of Soviet communism, a second civil war might produce another horrific regime. Most alarming is the real possibility that the violent disintegration of Russia could lead to loss of control over its nuclear arsenal. No nuclear state has ever fallen victim to civil war, but even without a clear precedent the grim consequences can be foreseen. Russia retains some 20,000 nuclear weapons and the raw material for tens of thousands more, in scores of sites scattered throughout the country. So far, the government has managed to prevent the loss of any weapons or much material. If war erupts, however, Moscow's already weak grip on nuclear sites will slacken, making weapons and supplies available to a wide range of anti-American groups and states. Such dispersal of nuclear weapons represents the greatest physical threat America now faces. And it is hard to think of anything that would increase this threat more than the chaos that would follow a Russian civil war.

-8-

Legitimacy Impacts William Huang

DDI ‘08 Kernoff/OlNEY

Russian Accidental Launch An independent and legitimate Russian judiciary is crucial to prevent accidental nuclear launch. Frank Cilluffo, director of Russian Organized Crime Task Force, October 1, 1997, Capitol Hill Hearing, Federal News Service, http://www.fas.org/spp/starwars/congress/1997_h/has274010_1.htm It must be perceived as a national security priority, as we have all referenced here, but we need to truly bring to bear all of our government's multidisciplinary assets. We simply cannot afford to be asleep at the switch. The stakes are obviously too high. To put it into perspective, the stranglehold on Russian crime in Russian society is immense. Crime is truly usurping the state's authority to resolve legal disputes. Unable to depend on overburdened courts or corrupt courts, one is forced to turn to crime groups, or kryshas, rooftops, for adjudication. The criminals, on the other hand, do brutally enforce their own criminal code, settling everything from parking tickets to major business disputes. Once ingrained into the Russian ethos, this cannot be eradicated overnight. That is precisely why our report stresses the need to support a process, as opposed to individuals. An independent judiciary insulated from corruption and politics is crucial. This is not an issue of simply more laws on the books, it is an issue of professionalizing a bureaucracy and an issue of political will. The fiscal crisis in Russia, of course, is undermining urgent maintenance of nuclear command systems and is weakening security and safeguards of nuclear weapons. A former army general and current Duma member, whom you referenced earlier, General Rokhlin, recently stated that the Russian strategic nuclear forces were nearing extinction for want of funds for maintenance. Both officers and ranks are unpaid, unfed, and unhappy. In this atmosphere the prospect for a criminal diversion of nuclear materials or an unauthorized and perhaps even an accidental nuclear weapons launch is at an all-time high, in my eyes; perhaps not as apocalyptic of a threat as it used to be, but the likelihood of a nuclear event is greater today than it was during the cold war.

-9-

Legitimacy Impacts William Huang

DDI ‘08 Kernoff/OlNEY

Democracy An independent judiciary is key to global democracy. Thomas Carothers, (Director of Research at the Carnegie Endowment for International Peace), March/April, 1998, Foreign Affairs, l/n ALTHOUGH ITS wonderworking abilities have been exaggerated, the desirability of the rule of law is clear. The question is where to start. The usual way of categorizing rule-of-law reforms is by subject matter—commercial law, criminal law, administrative law, and the like. An alternate method focuses on the depth of reform, with three basic categories. Type one reform concentrates on the laws themselves: revising laws or whole codes to weed out antiquated provisions. Often the economic domain is the focus, with the drafting or redrafting of laws on bankruptcy, corporate governance, taxation, intellectual property, and financial markets. Another focus is criminal law, including expanding the protection of basic rights in criminal procedure codes, modifying criminal statutes to cover new problems such as money laundering and electronic-transfer fraud, and revising the regulation of police. Type two reform is the strengthening of law-related institutions, usually to make them more competent, efficient, and accountable. Training and salaries for judges and court staff are increased, and the dissemination of judicial decisions improved. Reform efforts target the police, prosecutors, public defenders, and prisons. Efforts to toughen ethics codes and professional standards for lawyers, revitalize legal education, broaden access to courts, and establish alternative dispute resolution mechanisms figure in many reform packages. Other common reforms include strengthening legislatures, tax administrations, and local governments. Type three reforms aim at the deeper goal of increasing government's compliance with law. A key step is achieving genuine judicial independence. Some ofthe above measures foster this goal, especially better salaries and revised selection procedures for judges. But the most crucial changes lie elsewhere. Above all, government officials must refrain from interfering with judicial decision-making and accept the judiciary as an independent authority. They must give up the habit of placing themselves above the law. Institutional reforms can help by clarifying regulations, making public service more of a meritocracy, and mandating transparency and other means of increasing accountability. The success of type three reform, however, depends less on technical or institutional measures than on enlightened leadership and sweeping changes in the values and attitudes of those in power. Although much of the impetus must come from the top, nonstate activities such as citizen-driven human rights and anticorruption campaigns can do much to help.

- 10 -

Legitimacy Impacts William Huang

DDI ‘08 Kernoff/OlNEY

Economy Global rule of law is crucial to solve economic shocks. Thomas Carothers, (Director of Research at the Carnegie Endowment for International Peace), March/April, 1998, Foreign Affairs, l/n The challenges of the second phase are felt not only in Latin America and the former communist states, but also in Asian countries that have made considerable economic progress without the benefit of a strong rule of law. As Asia's recent financial woes highlight, if countries such as Indonesia, Thailand, and Malaysia are to move beyond their impressive first generation of economic progress, they will require better bank regulation and greater government accountability. More generally, economic globalization is feeding the ruleof-law imperative by putting pressure on governments to offer the stability, transparency, and accountability that international investors demand. Shoring up the rule of law also helps temper two severe problems— corruption and crime—that are common to many transitional countries, embittering citizens and clouding reform efforts. Debate continues over whether corruption in government has actually increased in transitional societies or whether greater openness, especially in the media, has merely exposed what was already there. Skyrocketing street crime and civil violence are another unfortunate hallmark of many democratizing societies, from Russia to South Africa to Guatemala. Crime erodes public support for democracy and hurts the economy by scaring off foreign investors and interfering with the flow of ideas, goods, and people. Reform-oriented governments around the world are now adding crime and corruption reduction to their agenda for deepening reform. Rule-of-law development is an obvious place to begin.

- 11 -

Legitimacy Impacts William Huang

DDI ‘08 Kernoff/OlNEY

Turns Case Turns case – the decision won’t be obeyed or respected if it’s perceived as illegit. Bryan Camp, attorney in the Office of Chief Counsel of the Internal Revenue Service, 1997, 34 San Diego L. Rev. 1643 A fourth justification for stare decisis is that it promotes two fundamental principles of American democracy and so protects the legitimacy of the judiciary. One such fundamental principle is that no [*1670] person, and hence no judge, is above the law. To view judicial decisions as products of uncontrolled willfulness on the part of a judge would rob those decisions of whatever moral power they have to command obedience. Courts have little power to coerce obedience directly and so must rely upon the acceptance of their decisions as reasoned products of disinterested minds. A dramatic example was the State of Georgia's defiance of Worcester v. Georgia, 102 where the Supreme Court held that under treaties made by the United States with the Native American tribes, certain lands in Georgia desired by white settlers belonged to the Cherokees. The decision did nothing to help the Cherokees; they were forcibly removed anyway. President Andrew Jackson refused to help, reputedly sneering "John Marshall has made his decision, now let him enforce it." 103 The quote is apocryphal, although Jackson was in complete sympathy with the Georgians. But Jackson also recognized that federal power was too weak to support the Supreme Court's mandate. Without that support, the mandate was worthless: "The decision of the supreme court has fell [stillborn], and they find that it cannot coerce Georgia to yield to its mandate, and I believe Ridge 104 has expressed despair, and that it is better for them to treat and move. In this he is right, for if orders were issued tomorrow one regiment of militia could not be got to march to save them from destruction and this the opposition know, and if a collision was to take place between them and the Georgians, the arm of the government is not sufficiently strong to preserve them from destruction." 105 [*1671] In general, however, litigants obey court decisions. In large part they do so because such decisions are seen as the product of reasoned application of legal rules and not mere politics or personality. Thus, "stare decisis" is important not merely because individuals rely on precedent to structure their commercial activity but because fidelity to precedent is part and parcel of a conception of "the judiciary as a source of impersonal and reasoned judgments." 106 Maintaining the perception that judges reach decisions on the basis of legitimate legal principles, that judges are not above the law is, I suggest, a key reason favoring stare decisis.

- 12 -