On February 25 and 26, the Center on Democracy, Development, and the Rule of Law at Stanford University, in partnership with the Canadian Department of Foreign Affairs and International Trade, hosted a symposium titled, "Addressing the Accountability Gap in Statebuilding: The Case of Afghanistan." This event brought together leading experts, government officials, diplomats, practitioners, and academics to examine the problems of accountability, corruption, and election fraud that have risen in the wake of international statebuilding efforts in Afghanistan.

This unique forum allowed participants-both Afghan actors and members of the international community- who are heavily involved in building the institutions of the Afghan state, to participate in an honest exchange with their peers to surface challenges and generate recommendations to improve the practice of statebuilding moving forward. 

Panels were designed around the following questions: how to establish accountability in statebuilding, address electoral fraud evidenced in 2009 and 2010, manage powerbrokers who monopolize informal governance networks, coordinate anti-corruption efforts, and develop a political strategy for Afghanistan's future. What surfaced throughout these presentations and discussion was the issue of the "double compact" in Afghanistan-the failure of Afghans to self-govern and the failure of the international community to construct the institutions of a functioning state.

Participants proposed a new framework for governance that adopts a more participatory approach with the international community, Afghan government, and the public as equal partners in statebuilding endeavors. While challenges emerged there were also a number of key recommendations and strategies proposed  that can be pioneered by this influential group of policymakers and practitioners to ease the transition of responsibility to the Afghan government in 2014.  

The keynote address was delivered by former Afghan Minster of Finance and 2009 presidential candidate Dr. Ashraf Ghani, to an audience of more than 100 students and members of the local community. Dr. Ghani provided an honest and pragmatic account of the parallel and conflicting systems driven by the international community, which have given rise to systemic failure and corruption in Afghanistan.

"We are dealing with a crooked playing field," Dr. Ghani said recognizing that both the Afghan and international community were jointly responsible for this outcome. "When the field itself is crooked the nature of reform and change that we must initiate are very different. "

Dr. Ghani spent considerable time discussing the outsourcing of development to Washington-based firms that manage million dollar contracts and outsource technical work to foreign technocrats. This in Dr. Ghani's opinion does little to strengthen the internal capacities of the state, provide training opportunities to Afghans or allocate resources effectively to the general public.

Dr. Ghani stressed the importance of speaking honestly about these dysfunctions in the development system, "We need to start talking truth to each other if we are going to deal with this phenomenon. This double failure now is the genesis of the present."

Dr. Ghani channeled the sentiments of the Afghan public into the room by emphasizing the uncertainty that defines their lives. "Today it is the sense of injustice that drives conflict," Dr. Ghani said. "The level of conflict is driven by injustice. What Afghans yearn for is normalcy-the sense that the lives of our children and grandchildren will be better and what my generation endured will not be repeated."

The level of conflict is driven by injustice. What Afghans yearn for is normalcy-the sense that the lives of our children and grandchildren will be better and what my generation endured will  not be repeated.                    -Dr. Ashraf Ghani 

 Looking forward, Dr. Ghani advised that accountability mechanisms and feedback loops must be implemented to ensure that the necessary auditing and accounting mechanisms are in place to control corruption and ensure transparency. In addition, he called for one coherent system of rules that must be developed and agreed upon to govern development and prevent parallel systems from circumventing these rules. Finally, he advised adopting national programs that model the success of the National Solidarity Program, which reduced child mortality rates by 16%.

Dr. Ghani commented on the unique position that Afghanistan occupies at the crossroads of Asia, in the middle of "four huge hubs of change," China, India, Russia, and the Gulf. "A new regional era has to be created, if France and Germany could overcome hundreds of years of conflict we must create another sense of opportunity."

Dr. Ghani concluded by placing the hope and responsibility for Afghanistan's future in the hands of its younger generation, "We must talk about the generation compact in Afghanistan, our sons and daughters-both literal and figurative-are the source of growth and the source of dynamism...The women of Afghanistan, the youth of Afghanistan, and the poor of Afghanistan are the three numerical majorities that have been reduced to political and economic minority. Without investing in women, investing in youth and tackling the challenge of poverty, we are not going to have stability."

At the end of the two day symposium, participants collectively called for a comprehensive political strategy to facilitate the peaceful and legal transfer of power in 2014, which marks the end of President Karzai's term in office. With this important milestone in the near future, the international community remains committed to working with their Afghan counterparts to introduce political reform measures that will strengthen accountability mechanisms between the Afghan state and society. 

As Dr. Ghani eloquently stated at the end of his presentation, "We have to have an agenda of the future, we must engage in writing the history of the future."

One critical element of the laws of war is a concept known as "belligerent privilege," which stipulates that combatants may legally kill other combatants but may not target civilians. What, then, does a soldier do about the fact that in modern warfare it can be extraordinarily difficult to tell the difference?

Terrorists often choose to move undetected through the ranks of civilian populations. They hide in plain sight by wearing civilian clothes rather than uniforms or distinctive emblems. "They may be farmers by day and fighters by night," said David Luban, a Georgetown professor of law and philosophy, at an event that was part of the Ethics and War series. What's more, civilians may offer food and shelter to enemy soldiers - do they in the process become combatants? And what, finally, should the soldier do about civilians who are being used as a shield to protect combatants?

These are tricky questions. Luban said the phrasing of the Geneva Convention leaves open the possibility that soldiers may legally target civilians in a conflict zone. Article 48 says the military must discriminate between civilians and combatants at all times. Yet Article 51 notes that civilians shall only enjoy full protection in times of conflict "unless and for such times as they take a direct part in hostilities."

Efforts to clarify these issues have proved to be "highly dangerous," said Luban. In 2009, the Obama administration made a change in the Military Commissions Act to label anyone who materially supports hostilities against the U.S. as an "unprivileged enemy belligerent." As a result, civilians who tacitly support an enemy regime or terrorist organization may be lawfully targeted. Unfortunately, the amendment drew no distinction between those who did so voluntarily and those who did so involuntarily. It other words, a civilian actively helping a terrorist might be construed to be a combatant. But less clear, said Luban, is how the U.S. government would consider an Afghan woman who under duress shelters members of the Taliban.

The lack of consensus, he said, has led to widespread confusion within the military. One soldier told Luban that he didn't "think anyone has worked out what to do when civilians take on certain risks by assisting the enemy," or what to do when "soldiers and civilians are indistinguishable."

It is equally difficult to know how far the military is obligated to go to protect innocent civilians. It is often left to the discretion of an individual solider or unit to make that call, and often in a split second. Luban cited one well-known example in which one British soldier, Frank Richards, was ordered to throw bombs into cellars to target German soldiers during the First World War. When Richards chose to issue a warning cry to alert civilians in hiding, he lost a key advantage over his enemy.

The attitude toward civilians is very different today, Luban said. The unspoken sentiment among soldiers is that "we'll not lose another life for these people." But they are wrong to think this way. Luban cited recent studies that indicate it is in the best interests of soldiers to protect the innocent. Brigades that actively try to prevent civilian casualties tend to take the fewest casualties in their own ranks. "If you're careless in protecting civilians," he argued, "you're careless in everything."

The key, Luban said, is establishing clear boundaries. Wars are inevitable, and no matter how compelling the moral arguments, he argued, "the states that ratify treaties like the Geneva Convention will never accept rules that ruin their own military effectiveness." However, the issues surrounding civilians in war zones must be addressed to ensure that soldiers are not left with a dangerous incoherence. Ultimately, he said, "we need analytic clarity."

Armed only with law textbooks, six Stanford law students and faculty advisor and senior research scholar Erik Jensen landed in Kabul, Afghanistan on Feb. 6 on a mission that would last six days.

The group made up Stanford's Afghanistan Legal Education Project (ALEP), a student-led law school project funded by the U.S. State Department that creates textbooks on Afghanistan's legal system specifically for the instruction of Afghani students.

Stanford students in the Afghanistan Legal Education Project (ALEP) meet with Supreme Court Chief Justice Abdul Salam Azimi during their six-day visit to Kabul. (Courtesy of Daniel Lewis)

Working with the American University of Afghanistan (AUAF), the project is creating a new generation of lawyers to shape Afghanistan's future.

Since it was founded in 2007 by Stanford law alums Alexander Benard J.D. '08 and Eli Sugarman J.D. '09, the project has published four textbooks. These include an introductory text to the laws of Afghanistan and textbooks on commercial, criminal and international law. Students are currently writing a textbook on constitutional law.

"The whole project is indigenously oriented," Jensen said. "The textbooks are written in response to needs and demands of Afghan students, and we try to contextualize our work as much as we can to the politics, economics and social order in Afghanistan."

The purpose of the recent trip to Kabul was to explore the future and progress of the project. Students attended classes that are currently taught using ALEP textbooks, got feedback from Afghani students and professors and interacted with administrators at the AUAF to see where the project is headed.

"Sitting in on the classes and meeting with the students was for us a priority, because that's the best way we can get feedback on our books and make the project better," said Daniel Lewis LAW '12 and ALEP co-executive director.

After meeting with the president of AUAF, the group agreed that the ultimate goal for the project is to build a complete law school curriculum.

"The time frame is uncertain, but we're expanding really quickly," Lewis said.

In addition to rolling out the new textbook, ALEP plans to introduce new classes in the fall on Islamic law and the informal justice system in Afghanistan, taught by a collaborating Afghan professor and an affiliated postdoctoral fellow. Workshops on practical skills such as negotiation and writing are also on the horizon, as well as translations of the books into Dari and Pashto.

The group met other notable Afghan and American officials, including the dean at the Kabul University School of Law, university professors from the most populated provinces and Ambassador Hans Klemm, coordinating director of rule of law and law enforcement at the Embassy of the United States in Kabul.

"All the high officials we met with were extraordinarily supportive of the project," Jensen said.

"We'd gone over there expecting it wouldn't really be easy getting our books out there [past AUAF], or that there would be some hostility," Lewis said. "But that really wasn't the case. The feedback was that they were excited to have another resource that was new and updated."

Other universities are not the only other audiences attracted to the project's textbooks, which are available publicly, and for free, online.

"Over the past year or so, people have been downloading them [the books] and using them, some of which we know about and some of which we don't," said Rose Ehler LAW ‘12, another ALEP co-executive director.

The U.S. military has also used the textbooks to familiarize officers with Afghani law. According to Jensen, retired Gen. Stanley McChrystal was "very familiar" with the textbooks.

The Afghan Ministry of Justice, leading judges and legal academics have also expressed interest in the project, according to Lewis.

"It was fascinating to be [in Kabul] as Stanford law students talking to these really important people in Afghanistan...in a knowledgeable way," Lewis said.

But strengthening the AUAF law school and spreading legal education are only the beginning of ALEP's goals.

"The development of the rule of law is historical process. It takes time; there are fits and starts," Jenson said.

"The problem is when you are at Afghanistan's level of development, it will go through years and years of fits and starts...and as society goes through these episodes, it will need a new cadre of leaders to lead to positive episodes," he added.

ALEP seeks to contribute to the formation of these future leaders, not only in the legal profession but also in the country as a whole. By using analytical methods to teach students critical thinking, they hope to bridge the gap between American style legal education and the Afghan reality.

"They [the Afghan students] will see opportunities that we can't see from Stanford, but they can see on the ground in Afghanistan," Jensen said, describing the project as one that is about imagining alternatives so as to prevent oppression.

The law students' person-to-person contact with the Afghani students made it clear that this project extends far beyond what can be seen on paper.

"The passion that we all saw in the students in Afghanistan just increased our passion for the project at Stanford...the heart and soul of the Stanford group is derived from the heart and soul of the Afghan students."

"Everybody on the trip came away saying, ‘Wow, we're actually doing something that's useful here,'" Lewis said.

The trip left the group optimistic about the project's future.

"Student demand is high; we've been successful at retaining some of the best faculty, and we hope that that the [AUAF] law school becomes a center of educational excellence," Jensen said.

Despite the fact that ALEP is no longer the "sole source" of Afghan law textbooks, Jensen is confident about the books' prospects.

"I look forward to the marketplace of competition...I think our books will show themselves to be the best."

Sherman’s introduction to the psyche of the soldier was personal: Her father, a World War II veteran, carried his dog tags on his keychain with him for 65 years before passing away just over a year ago. Sherman perceived her father’s choice to carry his dog tags not as one of honor, but instead as an obligation he felt to carry the moral load of his war. “He was a medic; he never fired an arm. But he carried the war, and what he saw in the war, with him.” 

To understand the moral psyche of the soldier, Sherman studies three forms of guilt: accident guilt, “luck” guilt and collateral-damage guilt. Accident guilt occurs when soldiers blame themselves for an accident that occurred under their watch. Sherman told the story of Capt. John Prior, who came to speak to her after the gun on a Bradley Fighting Vehicle accidentally fired, blowing off the face of a private under Prior’s watch. “It was as if an ice-cream scoop scooped out his face in front of me,” Prior told Sherman. “It was one of the few times in my life I’ve really cried.” Objectively, Sherman explained, one would not place blame on Prior because he was simply part of a causal chain and not the culpable link. But this fails to explain the despair, the self-indictment and the empathy that still invade Prior’s mind. “I’m the one who placed the vehicles. I’m the one who set the security. And as with most accidents, I’m not in jail right now,” he told Sherman. “Probably not a day goes by that I don’t think about it, even fleetingly.” In the case of Prior, Sherman says a deep moral accountability is at the heart of the soldier’s guilt, similar to the philosopher Nietzsche’s concept of “bad conscience.”

Luck guilt occurs when soldiers feel that by remaining alive following a catastrophic event of war, they betray those who gave their lives to battle, or feel, if they are not on the field of battle, that they are not sharing the burden shouldered by their comrades. Sherman told of when she visited the United States Naval Academy at Annapolis and spoke to marines who felt that they did not deserve to be surrounded by green scenery while their brothers fought in the deserts of Iraq and Afghanistan. The same was the case at the Army’s Walter Reed Medical Center, Sherman said. Even a student of Sherman’s at Georgetown spoke to her of the “dereliction of duty” he felt when insurgents in the Iraqi city of Tal Afar attacked a unit he formerly led, killing his friend. Sherman’s student yearned to have shielded his unit, even from thousands of miles away, and only after waging a moral battle within himself did he come to the reasonable conclusion that he could not, in fact, re-assimilate at home while also still protecting his friends on the war front.

Collateral-damage guilt affects soldiers whose actions result in the death of civilians. Sherman told the story of Col. Bob Durkin, who led a battalion in Baghdad during Operation Iraqi Freedom 2. Durkin told Sherman that his unit was “emotionally devastated” when children were killed in attacks on vehicle checkpoints. Soldiers would often go out of their way to order a medical evacuation for children, even when their own lives were still at risk. One might speculate that these soldiers rationally feel guilty, but Sherman believes that a deeper, moral intuition is at play: The soldiers internalize that they are not fighters at checkpoints; they are police, social developers – and healers. Their job is to remove children from the chaos that war has become, not watch as they are killed by a bomb meant for the soldiers.

Studying soldier guilt is especially pertinent to the current war in Afghanistan because the U.S. strategy there is grounded in population-centric, counterinsurgency warfare. Such operations require soldiers to restrain themselves from all-out battle and instead win the hearts and minds of the population they aim to protect from insurgent forces. Sherman argues that soldiers should be better trained and prepared to exercise restraint, thereby reducing the moral burden they carry in and after war. At the same time, she acknowledges the difficulty: When a soldier returns from war, the uniform does not come off so easily. As Will Quinn, a student of Sherman’s who once interrogated prisoners at Abu Ghraib, told her: “War takes place in a different time and space. But I know I’m the same person who was doing those things, and that’s what tears at your soul.”

The Drell Lecture series is an annual public event sponsored by CISAC. It is named for Sidney Drell, CISAC’s founding co-director.

Secretary of Defense Robert M. Gates’ January 6 announcement of major budget and program changes at the Pentagon was a watershed: it canceled several multi-billion dollar weapons programs, redirected $100 billion from old programs to new ones, and laid the groundwork for reducing the active-duty size of America’s ground forces after a draw-down in Afghanistan. But in light of the rumors that Gates will step down sometime this year, his remarks soon after the announcement also helped to consolidate one particular aspect of his reformist legacy: managing our nation’s vast military weapons budget.

Gates has navigated the Byzantine relationships that weave throughout the government and the private sector, including his own office, the military services, the Congress, and the defense industry. Over the last four years, he has personally assumed control of  the Pentagon’s resource allocation process. His legacy will be an instructive playbook for several reasons.

First, accountability for the development and production of major programs stops with the Secretary; delegation does not means abdication. Gates has earned similar plaudits elsewhere: he took personal responsibility for the earliest and most public crisis of his first year, the unacceptable conditions at Walter Reed. As steward of the nation’s defense budget, he has been equally unflagging. When he lost faith in the Joint Strike Fighter’s program management, he dismissed the officer in charge and replaced him with a hard-charging 3-star general to signal the seriousness of attention with which weapons costs and performance must be treated. This, in stark contrast to business-as-usual at the Pentagon, where civilian subordinates negotiate with the military services, with the Secretary investing personal resources in only a handful of the most publicly-contentious programs.

Second, timing matters, and Gates uses timing for a crucial purpose: to promote transparency and a public dialogue about his decisions. He puts distance between his Pentagon announcements and the annual roll-out of the President’s budget request.  Although his changes will be reflected in the President’s budget, these pre-announcements allow him and the military to initiate a conversation about military spending early, and before the President’s name is affixed to it. His adroit sensitivity to timing does the nation a real service, allowing us to focus on and debate how we equip our armed forces independent of the vast competing priorities on the political agenda. 

These two lessons have led to a critical third: the importance of a constructive and open relationship with Congress. Congress has not and will not go along with every Gates proposal. But Gates realized early on that working with Congress on the often vexing troubles associated with our nation’s military-industrial complex carries far more advantages than drawbacks. His ability to generate consensus on controversial program decisions, such as halting production of the F-22 and canceling the development of the Expeditionary Fighting Vehicle, were against-the-odds triumphs over pork-barrel politics. 

Every Secretary of Defense faces a similar budgetary conundrum as Secretary Gates currently does—the need to control defense spending while maintaining a first-rate and adaptable force—but the record of cutting unnecessary programs is mixed at best. Though Dick Cheney won praise for canceling the Navy’s egregiously over-cost A-12 stealth aircraft, his attempt to terminate the Marine Corps’s V-22 Osprey stalled in Congress. Even the A-12 kill was a pyrrhic victory, as his decision sparked such intense litigation that the legal dispute over the aircraft’s cancelation persists to this day, 20 years later. Indeed, the Supreme Court heard one aspect of the case this week. 

Donald Rumsfeld took full advantage of rising defense budgets to direct investments in the critical areas of space, missile defense, ISR, but transformation in theory became addition in practice. The defense budget needn’t have been cut as the wars in Iraq and Afghanistan raged, but the Pentagon was too slow to adapt to actual war-fighting needs. Rumsfeld successfully canceled the Army’s overweight artillery system known as Crusader, but his relationship with Congress, even Republicans, was often strained, and his personal oversight of hundreds of billions of dollars in over-cost and under-performing weapons was episodic at best. 

All the technology and weapons programs in the world will not win a war: only an expertly trained military with top leadership can do that. But Secretary Gates will leave a legacy of vigilance over our nation’s weapons of war. His successor would do well to emulate it.

On January 18, the Honorable Bob Rae, Liberal Member of Parliament for Toronto Centre and the foreign affairs critic for the Liberal Party of Canada was the featured speaker at a special CDDRL seminar. Rae addressed the Stanford community on the topic of his latest book Exporting Democracy, published in November 2010 by McClelland & Stewart. CDDRL Deputy Director, Kathryn Stoner, welcomed Rae to Stanford and Ben Rowswell, Visiting Scholar and Canadian "diplomat in residence," introduced the distinguished Rae stressing the timeliness of this topic.

This occasion marked the debut of Rae's book to a US audience and drew a sizable crowd interested in learning more about the MP's views on the role of Western powers in statebuilding and democracy promotion efforts abroad. Based on his personal experience engaging in diplomatic missions in Iraq, Afghanistan, Sri Lanka, and across the Middle East, Rae was confronted with the limits of power and democratic ideals in foreign lands.

 His discussion focused on the theoretical and practical analysis of the role of democracy in statebuilding that is the foundation of his argument in Exporting Democracy. Drawing  on the writing of 18th century philosophers, Thomas Paine and Edmund Burke, Rae examined the tensions between natural law and justice versus customs and tradition that continue to dominate the debate in modern day statecraft.

 Rae's experience observing democracy promotion abroad allowed him to recognize the importance of upholding democratic values, while also respecting the idea that democracy cannot be viewed as the "gold standard" for all. "From a Western perspective the debate suffers from the notion that the idea of democracy has emerged as perfectly natural and an automatic assumption of our daily lives. In reality it has generally been accompanied by periods of great conflict and can take hundreds of years to bear fruit as evidenced by the American and Canadian experience."

Rae emphasized that the best way Western countries can promote democracy is by helping other countries develop their own solutions to their own problems. 

Rae's sensitivity to the consequences of Western interventions, his belief in the principles of human rights, and his testimony to the importance of humility and pragmatism in our efforts of statebuilding abroad, offered the Stanford community a new perspective on the effectiveness of the global democracy movement.