Obama Snookered Putin? Russia and Justice Can Win

by Wayne McCormack

For over a week, I had to listen to my friends chortling about how “Putin played Obama like a fiddle.” I can’t resist a bit of chortling now that Obama maneuvered Putin to come forward with a concrete disarmament plan for Syria or look like the ordinary old now-disparaged Soviet strongman.

But the most significant development of the past week should not be about Syria at all. It may be that the Putin Op-Ed sets a tone for a total revamping of Russian political systems a la the rhetoric of 1770-2010 America. Look to what Putin has now committed his regime and think what it could mean 100 years from now.

To see how this might happen, consider first the relatively short sweep of history in the U.S. odyssey (not to say evolution) of human rights and economic opportunity. Thomas Jefferson borrowed his famous three phrases from John Locke: that all people are created equal, endowed by their Creator with inalienable rights, that these include life, liberty, and the pursuit of happiness. Those precepts found their way through James Madison and George Mason’s work into what we came to know as our Bill of Rights, the first Eight Amendments to the Constitution. These included specifics about freedom of speech and religion, privacy, criminal procedure, and the general guarantee of due process.

But did any of the Founders act as if they believed these principles? Maybe a few did, but the principal architects of the new nation were slaveholders, only property-owning males could vote, and certainly nobody at the time thought that the federal government would eventually restrict the ability of the states to imprison people for having sex with the wrong person. The provisions on free speech languished for 150 years until after World War I when American society began to rally around the political rights of workers to organize. The provisions on equality of race languished for 200 years until the affluence following World War II brought to the fore the inequities of our basic social structures and laws. Gender equality produced a slight political gain with the right to vote in 1920, but it is only in the last few years that women have had the temerity to push for power in the boardrooms of America. And equality for sexual orientation is still a struggle.

Throughout all of this 200-year odyssey, verbal flourishes of freedom, equality, and adherence to law dominated our political rhetoric. Eventually, we have had to live up to some of the promises that we have made and continued to invoke whenever politically convenient.

 Compare this history with that of the past 100 years in Russia. The background for forecasting a sea-change in Russia could start from the Tsarist Era and Alexander II’s freeing of the serfs, who were then quickly subjugated by the aristocracy landholders, who in turn refused to recognize the inexorable forces of history toward liberalization and prompted the Communist Revolution. Look into the Soviet Constitution and you would have found an elaborate Bill of Rights guaranteeing much more specific rights of the people than could be found in the language of the U.S. Constitution. Today, the Russian Constitution is even more elaborate, with 48 articles devoted to human rights – and duties. But there are clear differences between each version of Russia and Western democracies in the degree to which people have felt free to express themselves and participate in political life.

All that may change in the light of the Putin rhetorical flourishes of the past week. Both the 1936 Soviet Constitution (generally known as the Stalin Constitution) and the post-Soviet Russian Federation Constitution contain extensive guarantees of freedom of conscience, speech, religion, press, along with assurance of the “inviolability” of both the person and the home.

So what happened to these guarantees of rights under the U.S.S.R.? The answer is simple: “telephone justice” was the prerogative of the leadership of what the West knew as the Communist Party. This was expressed in various ways in document itself. One of the clearest was article 31: “The Supreme Soviet of the U.S.S.R. exercises all rights vested in the Union of Soviet Socialist Republics.”  Article 14 gave the Supreme Soviet “Control over the observance of the Constitution,” and “Safeguarding the security of the State,” as well as “Legislation on the judicial system and judicial procedure.” Taken together, these provisions were clearly understood to make the judges subservient to the Politburo. The notion of “judicial independence” would have been seen as subversive to the good of the State and the People.

In the post-Soviet Constitution of the Russian Federation adopted in 1993, there are 48 articles contained under the heading of “Rights and Freedoms of Man and Citizen.” Rights of personhood are said to be “inalienable” and equal to all, including the usual litany of conscience, speech, religion, privacy, and criminal procedure. But how realistic are those guarantees without a truly independent judiciary and a vigorously adamant voting public? The most obvious example of recent times is that the 2-year sentence for the members of the Pussy Riot for “hooliganism motivated by religious hatred” was known in the press several days before it was announced by the court. Was the sentence dictated by authorities, or by the hierarchy of the Church? Setting aside the freedom of speech issues, the judicial independence of the system is the more important issue. Nobody in the West can know about the particular sentence but criticism of judicial independence in Russia is as common as widespread knowledge of corruption in the government.

Meanwhile, speaking of rampant corruption in the system, we could profitably compare Russia of today with the U.S. of the Industrial Revolution. Graft and corruption were widespread during the heyday of the building of the financial empires in the U.S. of the late 19th Century. The Robber Barons of California were never accused of outright crime but Tammany Hall and Boss Tweed were a clear example of the phenomenon. Later, the Daley regime of Chicago had its heyday.

What happened to that sort of overt corruption in the U.S.? For one thing, the major players amassing enormous fortunes were not just taking money, they were building things. The ethos of the day prompted the Rockefellers, Fords, Morgans, and Stanford to build institutions that would last beyond them – to build a legacy, if you will. To build major institutions meant the need for managerial skills and technical innovation. In other words, building the future provided all the conditions for emergence of a strong middle class. The demise of the middle class in the U.S. in the last 40 years in the wake of Reagonomics is another story.

Might the same thing be happening or about to happen in Russia? The younger generation is well aware of what is happening in the rest of the world and how the stability of their society could be enhanced by spreading financial advantages of the new economy to a wider base. The elements are there if the ruling elite decides that building for the future is as important as taking the cash. That’s where Putin’s new rhetoric comes into play.

“We are not protecting the Syrian government, but international law. We need to use the United Nations Security Council and believe that preserving law and order in today’s complex and turbulent world is one of the few ways to keep international relations from sliding into chaos. The law is still the law, and we must follow it whether we like it or not.”

“[F]orce has proved ineffective and pointless. . . . We must stop using the language of force and return to the path of civilized diplomatic and political settlement.”

“We are all different, but when we ask for the Lord’s blessings, we must not forget that God created us equal.”

Wow, amazing rhetoric (created and promoted with the help of an American public relations firm). From here, one of two things can happen. Putin can find that he is now regarded in Russia as weak and not the traditional strongman, and thus be on his way out. Or this rhetoric can take root and flourish as political fuel for the next hundred years. The buzz in the Russian media thus far supports the latter reading. If that occurs, the result could be similar to the odyssey of U.S. political rights rhetoric – if you keep saying it, eventually you have to do it.

Wayne McCormack is a Professor of Law at the University of Utah S.J. Quinney College of Law, where he teaches Constitutional Law, Counter-Terrorism, International Criminal Law, Torts, and Civil Procedure. From 1997-2002 he coordinated the University of Utah’s involvement with the 2002 Olympic Winter Games, and that experience led to security planning for major events and interest in international legal issues, including the law related to terrorism.