Good afternoon. I am grateful to the Center for Strategic and International Studies for hosting this discussion about the rule of law.
A prosperous and safe society needs to vest people with the power to govern – the ability to set enforceable rules, punish violations, and act on behalf of the people. The question is how the governing power shall be exercised. One of our nation’s founders, John Adams, advocated “a government of laws, not of men.” The goal is for the people who exercise government power to act in accordance with neutral principles and fair processes, while respecting individual rights.
The idea dates at least to the fourth century BC, when Greek philosopher Aristotle wrote, “It is more proper that law should govern than any one of the citizens.”
Last year, President Donald Trump issued a proclamation explaining that “we govern ourselves in accordance with the rule of law rather [than] … the whims of an elite few or the dictates of collective will. Through law, we have ensured liberty.”
As the President recognized, law provides the framework for freedom. At its best, law reflects moral choices; principled decisions that promote society’s best interests and protect citizens’ fundamental rights.
John MacArthur Maguire described law as a system of “wise restraints that make men free.” The restraints preserve liberty because they are prescribed in advance, and they apply to everyone, without regard to rank or status.
The rule of law is indispensable to a thriving and vibrant society. It protects people from arbitrary government action. It allows businesses to enter into contracts. It gives innovators protection for their discoveries. It keeps people safe from dangerous criminals. And it allows us to resolve differences peacefully through reason and logic.
Justice Anthony Kennedy explained it this way: in a rule of law system, when you apply to a government clerk for a permit and you satisfy the criteria, you are not asking for a favor. You have a right to the permit, and the clerk has a duty to give it to you. In many countries, that concept of government officials legally required to serve the people does not exist.
A society can easily achieve the appearance of the rule of law without accomplishing it in fact. In Shakespeare’s play Henry the Fourth, a prince brags about his connections to the devil. He proudly claims: “I can summon spirits from the vasty deep.” His skeptical friend mockingly replies, “Why, so can I…. But [the question is,] will they come when you … call for them?”
An agreed-upon set of rules is necessary for a system that operates under the rule of law, but it is not a sufficient condition. The rule of law is not just about written precepts. It depends on the vigilance and character of individual men and women who faithfully implement it. The enforcement mechanism is crucial, as James Madison recognized in Federalist 51, because “you must first enable the government to control the governed; and in the next place oblige it to control itself.”
The founders of our nation well understood the challenge. First, they fought a war on their own soil to break free from rule by a foreign monarch. Then they operated for a decade under the Articles of Confederation, with a weak central government that proved incapable of meeting its obligations.
So, in 1787, the Constitutional Convention met in Philadelphia to establish foundational rules for a new central government.
The founders agreed on a written Constitution establishing a system that divides the government’s power among the legislative, executive, and judicial branches. The system protects against the concentration of power by allowing each branch to check and balance the others.
When Benjamin Franklin was walking home from the Convention, a woman named Elizabeth Powel asked him what type of government the Founders created. Franklin replied with these words: “A republic, … if you can keep it.”
Some people think that politicians are responsible for keeping the republic. But Franklin spoke to an ordinary citizen – a woman who did not even have the right to vote. The lesson is that a constitutional republic’s success depends on people conscientiously applying the rules.
One indicator that we are faithfully enforcing the law is when we accept that it requires an outcome we dislike. We respect the result because it is the result of a fair process – an objective analysis of the facts and a rational application of the predetermined rules.
An independent judiciary is a central pillar of our system. Our federal judges, by design, do not defer to popular will. They do not run for election. They do not answer to the executive branch. Nor are they beholden to the legislature. Their duty is to say what the law is, independently and impartially. They take an oath to “administer justice without respect to persons,” and to “impartially ... perform” their duties.
The judicial branch is independent because we accept its final rulings, even when we disagree with them. The judiciary serves as a check on the other branches, not a subordinate.
American institutions and the people who compose them sometimes fall short of our ideals. No system is infallible. But at its core, our society fundamentally respects the rule of law, by which we mean a system that is just and protective of human freedoms.
Not all nations share that concept. As we seek to build bridges with foreign adversaries, it is important for us to understand the different visions that underlay their legal systems.
In China, for example, the Supreme Court urged government officials to actively resist “Western-style” “judicial independence,” deriding it as “erroneous” and “mistaken.” The Chinese Communist Party sits above the government. In January, a party directive instructed the country’s courts to protect the Party’s “political security.” Instead of maintaining independence from the executive branch, the Chinese judiciary’s duty is to further Communist Party goals. The party controls the appointment of all judges and even dictates some of their rulings.
Daily practice in the courts is also a study in contrasts. In our courts, the presumption of innocence is perhaps the most important safeguard of individual liberty. When our government makes an allegation of wrongdoing, we need to prove it. We must present evidence that satisfies the rules governing admissibility. We need to call witnesses who remain credible when subjected to vigorous cross-examination. The defendant gets an opportunity to present his own evidence and witnesses. And the presumption of innocence is overcome only if we prove our case to the unanimous satisfaction of the judge and a jury of 12 random citizens. If even one juror is unconvinced, the defendant prevails. Government officials may sincerely believe that a defendant is guilty, but their belief is irrelevant. Investigators and prosecutors do not get to decree which facts are true.
In contrast, the Chinese system effectively presumes guilt when a defendant stands charged with a crime. Moreover, the presumption is all but irrebuttable. Chinese judges receive the government’s evidence before trial, without any opportunity for comment or cross-examination by the defense. Live testimony is offered only rarely. There is little to no opportunity to impeach witnesses. Prosecutors rarely lose a case.
There are substantial differences in our criminal arrest and detention practices, too. In the United States, a criminal defendant arrested by the police without a warrant has the right to appear before a neutral judge within 48 hours. If the police satisfy the judge through a sworn allegation of guilt and obtain a warrant before making an arrest, the defendant still has the right to review by a judge without “unnecessary delay.” A criminal defendant may be detained in the United States only with a judicial finding that there is probable cause to believe that he committed a crime. In addition, federal law still requires release before trial unless the judge finds clear and convincing evidence that the defendant would pose a risk of flight or a danger to the community.
In China, forms of extrajudicial pretrial detention are enshrined in law. Last September, the former President of INTERPOL, Meng Hongwei, was forcibly detained by his own government, without explanation. Meng has been reportedly detained under a new form of custody called liuzhi or “retention in custody.” Under liuzhi, a suspect is held incommunicado at an undisclosed location and denied access to legal counsel and family for as long as six months without charges.
In Xinjiang province, Chinese law allows the extrajudicial mass detention of citizens who are ethnic Uighurs, a minority population native to the province. Today, more than one million Uighurs and other minorities reportedly are detained in internment camps. They are forced to renounce their culture and religion, and they face political “reeducation.” The province’s law authorizes the arrest of anyone for violations that include expressing an allegiance to Uighur culture and reading prohibited religious books. Many people have been arrested and detained for long periods of time, without charge, trial, or due process.
Citizens of countries that operate in that way are subject to “rule through law.” The law does not charge anyone with serving as an independent guarantor of liberties or a check on political influence, as in the American system. Instead, the law is an instrument of state power, a mechanism for rulers to maintain control and quash dissent. In the absence of a culture that respects the rule of law, written protections are routinely violated or selectively enforced, and victims are bereft of any legal remedy.
In those nations, law may be used instrumentally as either a weapon or a shield — not merely against their domestic populations, but also beyond of their borders. They direct their transactional approach to the law outward, with damaging and far-reaching effects.
China, for instance, appears to detain foreign citizens as a means of retaliating or inflicting political pressure on other countries. In 2014, Canadian authorities arrested a Chinese national named Su Bin at the request of the United States. We sought his extradition for hacking-related offenses and the theft of sensitive military and export-controlled data that was sent to China.
In an apparent act of reprisal, Chinese authorities apprehended a Canadian couple who had lived in China for 30 years without incident. They were accused of spying and threatened with execution. The wife was detained for six months before being released on conditions. The husband did not meet with a lawyer for almost a year. He was held for more than two years.
Meanwhile, Su Bin consented to his transport to the United States, retained a lawyer of his choice, and received all the protections afforded a criminal defendant in our system.
In some cases, China, Russia, and other authoritarian nations overtly shield their nationals from the fair administration of justice. On numerous occasions they refuse to provide mutual legal assistance in response to justified requests by the United States and other countries for evidence for criminal investigations and prosecutions.
As transnational crime increases in scope and complexity, we increasingly face cross-border criminal investigations with defendants, evidence, and witnesses that span the globe. Countries depend heavily on expeditious international cooperation to build cases and to locate, arrest, and extradite fugitives to hold them to account for their crimes. Providing safe havens for criminals is inconsistent with the rule of law.
Some countries also undermine the law by using extralegal means to forcibly repatriate fugitives. China sends agents known as “Fox Hunt” teams to the United States and elsewhere to track down Chinese nationals accused of political or corruption crimes. The squads enter foreign countries under false pretenses, track down fugitives and deploy intimidation tactics to force them to return to China.
Inside China, government officials possess authority to impose “exit bans,” prohibiting some foreigners from leaving the country, without judicial process. They sometimes use bans as a form of coercion, to compel a victim’s relative or friend suspected of wrongdoing to return to China. One American teenager, a college sophomore, is now trapped in China, being used as a hostage by authorities hoping to coerce his father to return. China’s abuse of foreign visitors as political pawns caused the State Department to issue a travel advisory last month.
In the United States, we strive to faithfully and responsibly discharge our responsibilities to assist foreign law enforcement, providing due process, holding criminals accountable, and respecting individual rights.
When Chinese citizens who commit crimes in other countries remain in China, China neither extradites them nor consistently prosecutes them for offenses against foreign victims. In contrast, the United States extradites citizens, as well as foreign nationals, when the law warrants it. Over the past five years, the United States extradited 95 Americans. We also cooperate with other countries’ requests for mutual legal assistance and extradition in their investigations and prosecutions. We do so based on a fair-minded assessment of the evidence, without consideration of nationality. Last year, for instance, the United States removed Xu Chaofan, a Chinese fugitive who allegedly embezzled $485 million from the Bank of China.
Combating transnational crime requires foreign partners to act reciprocally, transparently, and in good faith. When a fair-minded assessment of the evidence establishes significant crimes, nations should not shield citizens from the fair administration of justice, or otherwise subvert legal processes.
Some countries also seek to advance their ends by changing global criminal justice norms. For instance, Russia and China seek to replace the Budapest Convention on Cybercrime. That Convention is approved by the United States and more than 60 other nations. It harmonizes national interests and enhances the flow of electronic evidence among nations to facilitate the investigation of cybercrimes — while balancing civil liberties and privacy interests.
Russia rejects the Budapest Convention, complaining that the pact allows individual owners of data to control it. In its place, Russia seeks to advance a new convention that would enhance the ability of regimes to control communication, limit information-sharing between nations, and impede efforts to investigate cybercrime. We reject the effort to undermine the goal of an open Internet governed by the rule of law and protected by international cooperation.
I want to emphasize that the people of China, Russia, and other nations that do not share our respect for individual rights are not our enemies. It is good for us to seek common ground with their leaders. President Trump describes our relationship as “a new era of competition.” He extends an open hand to “rival powers … that seek to challenge American influence, values, and wealth. We will attempt to build a great partnership with those and other countries, but in a manner that always protects our national interest.”
The rule of law is central to our national interest. While we cannot expect any system to be flawless in operation, the key issue is whether the government establishes fair rules, respects individual rights, and punishes violations. Consider the murder of Jamal Khashoggi. There may be factual disputes about who is responsible for an extrajudicial killing, but our allies must agree on the principle that each culpable person should be held accountable, because a government that operates under the rule of law cannot condone the cold-blooded murder of non-violent dissidents.
Let me conclude with this observation. I am proud to serve in the Department of Justice with 115,000 colleagues who promote the rule of law, a goal held jointly with state and local law enforcement officers. We share a noble calling to pursue justice, a calling enforced by the additional safeguard of an independent judiciary.
We work regularly with law enforcement partners in China, Russia, and other rival nations to advance our interests, but always with a clear-eyed understanding of our responsibility to serve as vigilant custodians of the rule of law. Our Constitution aspires to “secure the blessings of liberty to ourselves and our posterity.” In order to sustain it in an interconnected world, we should defend, cherish, and champion neutral legal principles and processes — in practice and not just on paper.