Background History of Rule of Law Assistance Promoting the rule of law abroad has been a U.S. government priority for decades. As early as 1985, rule of law was added to the Foreign Assistance Act of 1961 as a policy priority. Prior to the 1990s, rule of law assistance was primarily focused on activities in Latin America and the Caribbean. With the end of the Cold War and subsequent collapse of the Soviet Union, the U.S. government invested resources to support rule of law and justice sector reform in Central and Eastern Europe. Following the September 11, 2001 terrorist attacks, Afghanistan became a primary recipient country of U.S. rule of law assistance. The United States continues to support rule of law activities around the world. Agencies Involved in Rule of Law Assistance Department of State’s Standardized Definition of Rule of Law Rule of law is a principle of governance under which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, independently adjudicated, equally applied and enforced, and consistent with international treaties and customary law. Rule of law is demonstrated by adherence to the principles of publicly accepted legitimacy of the law, institutions, and process; checks and balances on structures of power; supremacy of the law; equality before the law; accountability to the law; fairness; effective application of the law; equitable access to justice; participation in decision-making; legal certainty; avoidance of arbitrariness; and procedural and legal transparency. Activities include support for strengthening of judicial systems including court administration, management, and operations; judicial proceedings; constitutional and legal reform efforts; judicial independence; access to justice; and legal education and associations. Millennium Challenge Corporation (MCC), also provide assistance that can be related to improving the rule of law. At each agency, several offices participate in rule of law assistance. The Bureau for International Narcotics and Law Enforcement (INL) is the lead office for rule of law within State. According to INL, it has three main objectives related to rule of law assistance: (1) effectiveness, (2) accountability, and (3) respect for fundamental rights and freedoms. One principle that also guides INL’s rule of law assistance is effectively coordinating assistance with other donors, other bureaus and offices within State, and interagency partners, according to INL. According to USAID, USAID designs, oversees and manages rule of law programming primarily through country-level missions, which ensures programming is tailored to local context. These programs are, in turn, supported by Washington-based regional and pillar bureaus. As the home base for USAID’s Democracy, Human Rights and Governance (DRG) programs, the DRG Center (1) leads USAID efforts to achieve self-reliant, citizen-responsive, democratic societies that respect human dignity, rights and the rule of law; (2) provides proactive and responsive technical support to missions and bureaus on core DRG sectors, including rule of law; and (3) conducts assessment, design, and evaluation of related DRG programs around the world to support more effective, systemic, cost- efficient and sustainable development. DOJ does not directly fund rule of law assistance, but its Office of Overseas Prosecutorial Development, Assistance and Training (OPDAT) and the International Criminal Investigative Training Assistance Program (ICITAP) implement activities funded by agencies such as State, USAID, and DOD through interagency agreements. State and USAID Allocated $2.7 Billion for Rule of Law Assistance in Fiscal Years 2014 through 2018, Mostly to Afghanistan and the Western Hemisphere State and USAID Rule of Law Allocations Increased from Fiscal Years 2014 to 2018 From fiscal years 2014 through 2018, State and USAID allocated $2.7 billion for rule of law assistance, with annual allocations increasing from $496 million in fiscal year 2014 to $551 million in fiscal year 2018, or 11 percent. Within this time period, allocations fluctuated. Specifically, allocations increased by 20 percent from fiscal years 2014 through 2016, and subsequently decreased by 7 percent from fiscal years 2016 through 2018. According to the Congressional Research Service, the fluctuations in rule of law funding mirrored the fluctuations in foreign operations appropriations, which also increased by 11 percent from fiscal years 2014 through 2018. State allocated more than $2 billion from fiscal years 2014 through 2018 in that time period and USAID allocated over $700 million. See figure 1 for annual allocations by State and USAID for rule of law assistance from fiscal years 2014 through 2018. In fiscal year 2018, activities promoting justice systems and institutions received more allocated funding than all other types of rule of law assistance combined. Justice Systems and Institutions funds were allocated toward activities such as improving the systems, capacity, and sustainability of the civil and criminal justice sectors by harmonizing policies, fostering public / private partnerships, providing training programs, and strengthening administrative and operational systems. Recipients of this assistance can include police forces, prosecutors, judges, public defenders, bar associations, and training institutions. See figure 2 for rule of law allocations by program element, and appendix II for more information on how State and USAID track rule of law funding. DOJ’s ICITAP and OPDAT track funding in obligations, not allocations. According to DOJ, State and USAID used DOJ to implement certain rule of law programs, obligating $691 million from fiscal year 2014 through July 2019. Of this amount, $327.6 million went to ICITAP and $363.5 million went to OPDAT. Majority of Rule of Law Assistance Funds Were Allocated to Programs in Afghanistan and the Western Hemisphere From fiscal years 2014 through 2018, State and USAID allocated funds for rule of law assistance to 20 regional or programmatic operating units in Washington, D.C., and 72 field-based operating units, primarily bilaterally to country missions. The top four recipients of rule of law allocations were State’s Western Hemisphere Region and bilateral programs in Afghanistan, Mexico, and Colombia. These four recipients were allocated $1.7 billion of $2.7 billion, or 63 percent of the total rule of law allocations from fiscal years 2014 through 2018. The top three bilateral recipients, Afghanistan, Mexico, and Colombia, received 40 percent of rule of law assistance during this time period, which exceeded the total allocation to all 69 other bilateral recipients combined. Figure 3 shows worldwide distribution of bilateral rule of law assistance allocations from fiscal years 2014 through 2018. See appendix III for a complete list of countries and regional programs listed by funds received. Agencies Determine Allocations through the Annual Foreign Assistance Budget Process and Identify Rule of Law as a Goal in Strategic Documents State and USAID Determine Rule of Law Assistance Allocations Worldwide through the Existing Annual Foreign Assistance Budget Process State and USAID participate in an annual foreign assistance budget process, managed by State’s F bureau, which determines the allocation of foreign assistance funds for a variety of projects for all recipient countries and programs worldwide. According to agency officials, allocations of rule of law assistance are determined during this process. Agencies develop budget requests on an annual basis, usually starting this process 2 years before the start of any particular fiscal year. According to agency officials, the requests begin with the overseas missions providing annual reports and performance plans to State and USAID headquarters. They said that, during this process, each mission determines its need for financial resources related to foreign assistance, including rule of law assistance. Officials also hold interagency roundtable discussions regarding various aspects of foreign assistance. According to State officials, State chairs a roundtable on rule of law assistance that includes other interagency partners such as DOJ, DOD, MCC, and others. According to these officials, this roundtable allows the relevant agencies and bureaus to make decisions related to the amount of rule of law assistance funding that goes to specific regions and countries and align the funding with broader foreign assistance goals. Each agency also compiles and analyzes these annual reports and performance plans and provides initial budget requests to the Office of Management and Budget (OMB) in September. From September to November, OMB reviews each agency’s budget request submission and conducts analysis on how the budget requests align with the overall federal budget. After OMB conducts its review, it communicates to each agency the level of funding it can request from Congress. The President usually submits the overall federal budget request to Congress on the first Monday in February. As part of this request, each agency, including State and USAID, provides a more detailed Congressional Budget Justification that explains the need for specific funding levels to the relevant congressional subcommittees. Once the House of Representatives and the Senate agree on the language of the bills, including the levels of funding, and pass the State and Foreign Operations appropriations bill, the President can then sign it into law. Once the President signs the State and Foreign Operations appropriations bill into law, OMB apportions the amount of funds that State, USAID, and other agencies may use. Agencies then allocate and obligate these funds for certain programs. In the case of rule of law assistance, these obligated funds are often used to engage in partnership with implementing partners overseas through contracts, grants, or cooperative agreements, according to agency officials. State, USAID, and DOJ Have National and Agency-Specific Strategies on Rule of Law Assistance and Determine Roles and Responsibilities for Relevant Bureaus and Offices Improving the rule of law in partner countries overseas is identified as an important objective in several strategic documents including the 2017 National Security Strategy, the 2018-2022 State-USAID Joint Strategic Plan, the 2018-2022 DOJ Strategic Plan, and bureau-specific plans. Each of these strategic documents is linked to U.S. national security goals and discuss U.S. agencies’ roles in improving the rule of law in partner countries. See figure 4. White House 2017 National Security Strategy. This strategy identifies the rule of law as a central U.S. governing principle and a part of the foundation of American alliances overseas. It also states that the United States should provide assistance to support democracy and rule of law in partner countries. State 2018-2020 State-USAID Joint Strategic Plan. This plan articulates the importance of improving the rule of law in partner countries overseas and identifies this as a strategic objective. It also requires coordination between the two agencies to deliver sustainable assistance that strengthens their democratic institutions. The plan also calls for State and USAID to work together at the country level to develop country-specific strategies that ensure investments are sustainable and that results are valued by partner countries. Foreign Affairs Manual (FAM). The FAM includes specific roles and responsibilities for rule of law assistance and notes that the lead office for such assistance, INL, is responsible for, among other things, the “development of assistance programs directed at U.S. Government objectives abroad on international criminal justice issues.” Bureau-specific plans and documents. INL and several other State bureaus also have their own strategic documents with elements that relate to the provision of rule of law assistance. Specifically: INL’s Functional Bureau Strategy provides a framework for connecting its responsibility for providing rule of law assistance with its specific programs overseas. The strategy also defines how the bureau matches U.S. foreign policy goals with its foreign assistance portfolio, including its allocation to rule of law assistance. State’s other functional bureaus and offices are guided by strategic documents that relate to rule of law assistance. According to State officials, programs provided by these bureaus and offices can touch on rule of law-related efforts such as training on techniques related to investigating and prosecuting trafficking cases. These bureaus include the Bureau of Democracy, Human Rights, and Labor; the Bureau of Counterterrorism; and the Office to Monitor and Combat Trafficking in Persons. State’s regional bureaus are also guided by strategic documents that can relate to rule of law assistance. For example, the Joint Regional Strategy for the Bureau of European and Eurasian Affairs includes a strategic goal related to protecting core U.S. interests by advancing democracy and human rights and strengthening civil society. USAID Strategy on Democracy, Human Rights, and Governance. This strategy identifies the strengthening of institutions that enable the rule of law as part of USAID’s work to foster greater accountability of leaders to citizens and the law. USAID programs are designed to strengthen the institutional and decisional independence of judiciaries, develop judicial self-governance, and introduce best practices in judicial effectiveness. The strategy also states that USAID will continue to offer timely support for institutional development of oversight bodies, including legislatures and auditor general’s offices. 2017 DOJ Strategic Plan. The strategic plan identifies the development of rule of law as a key responsibility for DOJ. According to DOJ officials, DOJ has two main offices that provide rule of law assistance. Both of these offices are within DOJ’s Criminal Division. ICITAP. This office works with foreign governments to develop professional and transparent law enforcement institutions that protect human rights, combat corruption, and reduce the threat of transnational crime and terrorism. ICITAP focuses on law enforcement, correctional institutions, and forensics (whereas OPDAT works primarily with prosecutors and courts). According to DOJ, ICITAP and OPDAT often coordinate their rule of law assistance efforts and pursue a comprehensive approach to criminal justice reform in countries with both a Resident Legal Advisor and an ICITAP advisor. ICITAP programs are implemented by a combination of federal employees and contractors. OPDAT. According to DOJ officials, OPDAT builds foreign partners who can work with the U.S. agencies to enhance cooperation in transnational cases and to fight crime before it reaches the United States. OPDAT has Resident Legal Advisors, Intermittent Legal Advisors, and International Computer Hacking and Intellectual Property Advisors posted at U.S. embassies overseas who provide assistance and case-based mentoring to foreign counterparts to develop justice systems that can combat transnational crime, corruption, and terrorism consistent with the rule of law. According to these officials, OPDAT’s efforts and programming align with, reinforce, and further U.S. law enforcement and national security objectives. In Selected Countries, Missions Developed Interagency Strategies and Two Developed Issue- Specific Strategies to Guide Rule of Law Assistance Mission-Wide Strategies We Reviewed Address Rule of Law The Integrated Country Strategy (ICS) outlines goals and objectives for country-level priorities, such as rule of law assistance. The ICS is developed jointly by State and USAID in the country mission and establishes overall goals and objectives of the U.S. government in the particular country. The ICSs are 4-year strategic plans for whole-of- government priorities in a given country. According to State, the goals and objectives in the ICS are linked to and informed by the National Security Strategy, the State/USAID Joint Strategic Plan, and department regional and functional bureau strategies. ICS documents are organized around higher-level goals to be achieved by meeting objectives and sub- objectives. For example: In Kosovo, the ICS lists two objectives that help achieve the goal of improved rule of law: (1) ensuring that all Kosovo’s citizens have access to reliable, transparent, and accountable governance and justice and that it is responsive to citizens’ needs, and (2) improving delivery of services, implementation of laws and regulations, and committing to countering corruption. In Colombia, the goal to advance Colombia’s capacity to strengthen governance includes the objective of extending the effective presence of democratic institutions and processes, such as the rule of law. To further detail USAID’s in-country efforts, USAID develops a Country Development Cooperation Strategy (CDCS) to plan agency goals and objectives, which are achieved by meeting intermediate and sub- intermediate results for its work in a specific country, such as the provision of rule of law assistance. According to USAID, the CDCS objectives are integrated into the ICS and inform overall rule of law assistance goals and strategy. Some examples include the following: In Liberia, the 2013-2019 CDCS states that the overall goal of “Strengthened Liberian Institutions” should be reached by achieving, among others, the development objective of more effective, accountable, and inclusive governance. This development objective would in turn be achieved by meeting, among others, the intermediate result of increased access to justice, according to the CDCS. In the Philippines, the 2013-2019 CDCS includes the sub-intermediate result of “judicial efficiency improved” as supporting the intermediate result of “economic competitiveness enhanced.” This intermediate result must be reached to achieve the development objective of broad-based and inclusive growth, which in turn contributes to the goal of a more stable, prosperous and well-governed Philippines, according to the CDCS. The mission-wide strategies for the four selected countries varied in how they prioritized rule of law assistance. In Kosovo, Liberia, and the Philippines rule of law was a higher-level priority, such as a goal in the ICS or development objective in the CDCS. In Colombia, the ICS includes improving rule of law as an objective, but not a main goal, and the CDCS lists rule of law as a sub-intermediate result. Two Missions We Reviewed Developed Strategies Specific to Rule of Law Depending on the emphasis of rule of law assistance in a particular country, the in-country mission may develop strategies, in addition to the ICS and CDCS, to address a specific priority such as rule of law. In two of the four selected countries, we found that missions had developed additional strategic documents specific to rule of law assistance. In Kosovo, the mission developed a specific rule of law strategy document to guide activities across State, USAID, and DOJ in support of the rule of law goal in the ICS. In Colombia, State and USAID developed a mission rule of law strategy in 2015. In addition, agency officials said they had adapted strategies to fit changing contexts. For example, when a spate of violence targeted human rights defenders and social activists in 2018, the mission in Colombia developed a human rights strategy as a supplement to the rule of law strategy. Agencies in Selected Countries Use Similar Processes to Design and Implement Rule of Law Assistance, but the Sufficiency of Interagency Coordination Is Unknown Agencies Use Similar Approaches to Identify Needs, Design Programs, and Execute Activities to Implement Rule of Law Assistance in Selected Countries State, USAID, and DOJ conduct assessments, consult with host governments, and use interagency reviews to identify local rule of law needs. Agency officials noted that local context affects the nature of rule of law programs, and that needs assessments are critical to understanding this context. While each country faces unique and specific rule of law challenges, and agencies have flexibility to conduct foreign assistance as they deem appropriate, some key interventions are consistent across several or all of the selected countries. See appendix IV for more information on key interventions and priority issues in each selected country. Assessments. State and USAID officials said that they can identify needs by conducting assessments of the rule of law in some of the countries we reviewed. They also sometimes contract with other organizations to conduct these assessments as part of the broader contract for a program. DOJ noted that they have used these assessments as an initial baseline against which to evaluate progress, identify critical local assistance needs, inform development of mission strategies such as the ICS and CDCS, and prepare for future activities. According to U.S. officials, program implementing partners can also use assessments to prepare for specific projects and activities according to the terms of grants and contracts with U.S. government agencies. For example, according to officials: In Colombia, State concluded a letter of agreement with the Pan American Development Foundation to conduct an assessment of the function of the local justice sector. Following this assessment, INL officials said they funded a project with the foundation to strengthen the capacity of Colombia’s Attorney General to address issues related to the original assessment. Also in Colombia, USAID’s Justice for Sustainable Peace program conducted a local justice study with civil society organizations and academic experts in 45 municipalities and also conducted six regional political economy analyses during the initial phase of the project, among other analytical tools that shaped the project’s implementation. In the Philippines, a USAID assessment of closed cases and similar studies supported by the World Bank showed that judicial inefficiency was the most serious concern of litigants. Subsequently, USAID officials said they designed and funded a project intended to, among other things, address the two most significant results of inefficiency: docket congestion and court delay. They did this through supporting case inventories and disposition, streamlined litigation procedures, and automated case management. Late in fiscal year 2018, USAID also funded a project to improve access to justice by increasing access to legal information and assistance, and strengthening formal and informal alternative dispute resolution mechanisms. Host government consultation. U.S. officials said they have also involved the host government in identifying rule of law needs. For example: In Liberia, USAID worked closely with the Liberian government while preparing the 5-year CDCS to best capture local views on justice sector needs, according to USAID officials. In the Philippines, DOJ followed up judicial and prosecutor trainings with informal conversations to elicit local official views on rule of law needs and gaps, according to DOJ officials. According to USAID officials, USAID and the government of the Philippines convened interagency meetings consisting of justice system stakeholders to jointly develop the Joint Country Action Plan which includes rule of law priorities and programmatic activities. In Colombia, USAID and the Colombian Ombudsman’s Office jointly identify overlapping areas of interest and develop programs that fit these priorities, according to USAID officials. Interagency review. U.S. officials described collaborative efforts used at missions to identify local rule of law needs. For example: In the Philippines, officials from State, USAID, and DOJ discuss local needs and capacity gaps in the Law Enforcement Working Group and ad-hoc rule of law technical panels. Agency officials noted that, unlike an independent assessment, these groups review proposed and ongoing activities to ensure they meet technical needs identified by all agencies, including potential projects before solicitations for proposals are made public. In Kosovo, U.S. officials who participate in the rule of law working group jointly discuss potential needs and areas of intervention for local rule of law assistance. Also in the Philippines, State and USAID officials jointly serve on technical evaluation committees to ensure that the design matches local needs and U.S. assistance goals. In the selected countries, U.S.-supported rule of law assistance is implemented through country-specific programs, and we identified five examples, among others, of distinct types of rule of law activities. 1. Technical assistance to build human and institutional capacity in the justice system. U.S. agencies provide assistance to improve rule of law capacity in the form of trainings and exchange programs, and through the use of embedded advisors in local institutions. In Liberia, for example, trainings supported by USAID address a variety of issues. According to officials there, trainings are used in programs to increase the number of magistrates, supplement legal education, increase capacity of the Liberian Land Authority, integrate rule of law and property rights concepts into surveyors’ training, and increase the capacity and number of pro bono legal aid providers. (See fig. 5.) Multiple exchange programs provide training to enhance the rule of law, but local government officials from all four selected countries received training at International Law Enforcement Academies, which provide local law enforcement and justice sector officials with rule of law-related training and technical assistance. (See fig. 6.) 2. Embedded advisors. Embedded advisors provide onsite advice to local government officials and may operate in some of the selected countries as either a supplement or the primary agents of training and capacity building, according to agency officials. In several of our selected countries, the U.S. government embeds advisors with local government agencies or courts. According to U.S. officials, these advisors simultaneously provide technical assistance to local officials, but also can report back to the U.S. mission on the opinions and suggestions of local government. In Colombia, DOJ officials said that advisors now focus primarily on counter-narcotics issues but previously worked with host government agencies on human rights and rule of law-related work. They noted that DOJ advisors trained thousands of Colombian judges and attorneys prior to this shift in emphasis. Also in Colombia, USAID supports embedded advisors to provide technical assistance to the Office of Colombia’s Attorney General on human rights defender homicides and gender-based violence and the Inspector General’s Office to support public official disciplinary actions related to human rights protections. In Kosovo, OPDAT and ICITAP embedded advisors provide advice and training to their counterparts in a variety of Kosovo government agencies, including the Ministry of Justice, Ministry of the Interior, and Kosovo Corrections. 3. Legislative and regulatory reform. U.S. agencies and funded implementers work with local governments and programs to reform specific laws and administrative procedures. For example, U.S. programs introduced or expanded the concept of and legal structure for plea bargaining into Colombia, Kosovo, and the Philippines, according to U.S. officials in those countries. In the Philippines, members of the national court system provided data showing how the expanded use of continuous trial methods and plea bargaining, supported by U.S.-funded programs, increased courts’ ability to process cases and begin to reduce the pre-trial detainee population. 4. Resource and equipment provision. Programs provide resources directly to government agencies and civil society groups that are engaged in advocacy around rule of law issues. In the Philippines, for example, USAID provided funds to install e-courts to improve how courts record case information, monitor case flow, and provide public access to the status of cases, according to USAID. They said this productivity tool automates the tasks and functions of the courts, improving overall efficiency, transparency and accountability. (See fig. 7.) 5. Public outreach. Missions conduct interagency public outreach campaigns to promote the rule of law in the host country, including greater awareness of legal rights, responsibilities, access, and resources, according to agency officials. Interagency coordination via the Rule of Law working group allows the Kosovo mission to conduct consistently voiced rule of law-themed public communication, for example. The mission jointly publishes a rule of law tweet to update the public on relevant issues, supports “anti-corruption week,” and provides feedback to host government officials to emphasize U.S. activities and views on specific rule of law issues. (See fig. 8.) In some situations, agency officials have the flexibility to amend a project during the lifespan of the project. For example, in Colombia, officials noted that a sudden rise in violence against social activists and community leaders led State, USAID, and DOJ to adjust their rule of law strategy and programming to focus more on the prevention and prosecution of those crimes. In Selected Countries, Multiple Agencies Coordinate Rule of Law Assistance in Various Ways, but the Sufficiency of These Efforts Is Unknown We found that agencies in the four selected countries coordinate rule of law assistance in various ways that do not consistently include relevant agencies, and the sufficiency of these coordination efforts is unknown. Officials in Colombia, Liberia, and the Philippines described their respective approaches to coordinating rule of law assistance as follows, citing their Law Enforcement Working Groups as the usual forum for formal coordination. In Colombia, INL officials said they operated a rule of law project coordination group specifically for INL staff, but the group did not always include other relevant agencies, such as USAID. INL officials said they sometimes also coordinated rule of law assistance amongst agencies through a Law Enforcement Working Group—which also did not always include other relevant agencies—or through the Human Rights Working Group, which did include State, USAID, and DOJ, according to INL. In Liberia, agency officials said that State and USAID sometimes coordinated rule of law assistance through a Law Enforcement Working Group, but the mission did not have a rule of law-specific working group. In the Philippines, agency officials said they coordinated rule of law assistance through a Law Enforcement Working Group, which they said included all relevant members. Although the mission also operated a Counterterrorism Working Group, agency officials noted that rule of law was not a common topic at its meetings. The mission did not have a rule of law-specific working group. By contrast, agencies at the fourth mission we visited—in Kosovo—used a rule of law-specific working group, which included all relevant agencies, to coordinate rule of law activities. Agency officials, including the Chief of Mission, described the working group as a highly effective means of ensuring interagency collaboration and coordination, and as having had a significant positive impact on the effectiveness of rule of law assistance in Kosovo. Agency officials in Kosovo described the working group as a more effective means of coordinating rule of law assistance than other thematic working groups they had utilized in other posts, such as one on Law Enforcement. State and USAID guidance and our prior work have highlighted the importance of coordinating with relevant entities for interagency efforts, such as rule of law assistance, which is provided by multiple U.S. agencies. The 2018-2022 State-USAID Joint Strategic Plan notes that State and USAID will work with their interagency partners to coordinate strategies and programs, including their efforts related to providing rule of law assistance. In addition, we have reported on the importance of interagency collaboration when efforts involve multiple agencies, and have noted that interagency coordination mechanisms or strategies may reduce potentially duplicative, overlapping, or fragmented efforts. The Law Enforcement Working Groups were designed for purposes other than coordinating rule of law activities and are not required to include agencies that play a key role in providing rule of law assistance. The FAM notes that the Law Enforcement Working Group is the primary forum meant to coordinate U.S. law enforcement operations and law enforcement assistance programs under Chief of Mission authority. State and USAID categorize law enforcement assistance differently from rule of law assistance. Specifically, the FAM states that law enforcement assistance coordinated by the Law Enforcement Working Groups includes bilateral or multilateral foreign assistance programs where the host country unit receiving the assistance is authorized to use force. In addition, the FAM permits but does not require the inclusion of development agencies, including those that provide rule of law assistance, such as USAID, in the Law Enforcement Working Groups. The extent to which interagency rule of law assistance coordination mechanisms are sufficient is unknown, because officials, led by the Chief of Mission, at overseas embassies have not assessed the sufficiency of interagency coordination of foreign assistance at overseas posts or ensured that such coordination includes all relevant agencies and bureaus. Given that strategic guidance is largely decentralized, country- level coordination and collaboration efforts are critical to achieving agency and government-wide objectives. Without assessing the sufficiency of a mission’s mechanisms for coordinating rule of law assistance, such mechanisms may not be as effective as they could be, and may also increase the risk of duplicating efforts or fragmenting limited resources. In addition, agencies may also be missing opportunities to leverage interagency resources. Conclusions Improving the rule of law in partner countries overseas is a key objective of America’s foreign and national security policy. Ensuring that State, USAID, DOJ, and other agencies involved in providing rule of law assistance coordinate their efforts effectively—including involving all relevant entities—is key to providing that assistance in an efficient and accountable way. Overseas missions have the ability to develop whole-of- government strategies that guide their priorities and activities in a given country. As a result, the quality of strategic planning and coordination at the mission level is critical. Agency officials at overseas posts often work in a decentralized manner to design, implement, and coordinate rule of law assistance. While there is a range of coordination mechanisms in place, in selected countries, the extent and nature of interagency coordination varied and the sufficiency of those efforts is unknown. One of the key mechanisms used in-country to coordinate rule of law assistance is designed for other purposes, and, therefore, does not consistently include agencies that play a key role in providing rule of law assistance. Without assessing the sufficiency of their coordination methods, agencies could be missing opportunities to fully leverage limited resources for rule of law assistance, and could also be duplicating efforts and not providing assistance as effectively and efficiently as possible. Recommendation for Executive Action The Secretary of State should require Chiefs of Mission at overseas missions that receive allocations for rule of law assistance to assess the sufficiency of their coordination methods to verify that this assistance is coordinated with all relevant interagency partners. (Recommendation 1) Agency Comments We provided a draft of this report to State, USAID, DOJ, and DOD for their review and comment. State and USAID provided written comments, which are reproduced in their entirety in appendices V and VI, respectively. State, USAID, DOJ, and DOD provided technical comments, which we incorporated as appropriate. In its written comments, State accepted our recommendation and agreed that an assessment of coordination mechanisms would improve the overall provision of rule of law assistance. State also said that, on behalf of the Secretary of State, INL will provide guidance to require posts to perform an assessment on their coordination of rule of law assistance and come to a determination if coordination sufficiently involves all relevant agency partners. In its written comments, USAID noted that it prioritizes rule of law as a fundamental development outcome, and that it works with State and DOJ in its pursuit of this and other related objectives. USAID also noted a preference for formal rule of law-specific coordination groups to align efforts and reduce duplication. We are sending copies of this report to the appropriate congressional committees and to the Secretaries of State and Defense, the Acting Administrator of USAID, the Attorney General, and other interested parties. In addition, the report is available at no charge on the GAO website at http://www.gao.gov. If you or your staff have any questions about this report, please contact me at (202) 512-2964 or gurkinc@gao.gov. Contact points for our Offices of Congressional Relations and Public Affairs may be found on the last page of this report. GAO staff who made major contributions to this report are listed in appendix VII. Appendix I: Objectives, Scope, and Methodology This report examines (1) how much funding the Department of State (State) and U.S. Agency for International Development (USAID) allocated for rule of law assistance in fiscal years 2014 through 2018; (2) how agencies strategically plan and coordinate the allocation of rule of law assistance; and (3) what processes agencies have to design, implement, and coordinate rule of law assistance programs in selected countries. This is the first of two reports that will address this issue. To identify which agencies were relevant for a review of global rule of law assistance, we spoke with officials from State, USAID, the Department of Justice (DOJ), the Department of Defense (DOD), and representatives from nongovernmental organizations (NGO) involved in the rule of law sector. On the basis of these interviews and our previous work, we selected State, USAID, and DOJ to review. To address our first objective, we analyzed funding data from State and USAID, and obligation data from DOJ. We primarily relied on allocation data provided by State’s Office of Foreign Assistance Resources (F) for fiscal years 2014 through 2018—the most recent data available at the time of our review. F’s data included allocation data disaggregated by specific recipient country or regional program. Allocation data also was reviewable by the relevant rule of law program area and program elements as listed in State’s and USAID’s Standardized Program Structure and Definitions (SPSD). Rule of law is listed as a program area under the Democracy, Human Rights, and Governance (DR) category within the SPSD as “DR 1” and is composed of five program elements— DR 1.1 through DR 1.5. According to F officials, in fiscal year 2018, F changed its policy to allow operating units to designate activities with other SPSD codes to also count toward rule of law through the “cross- attribution” process. We assessed the reliability of State’s allocation data and determined the data to be sufficiently reliable for the purposes of reporting allocation totals and allocations disaggregated by program element and recipient country. F gathered this information from its FACTSInfo data system, which itself draws from data reported in annual Operational Plans prepared by relevant operating units, according to F officials. We verified the allocation data for the four countries we selected for our review by reviewing the allocated funds listed in the annual Operational Plans for each respective country. The data in the Operational Plans matched the allocation data from FACTSInfo. In addition to the allocation data provided by F, we collected limited obligation data from State’s Bureau for International Narcotics and Law Enforcement (INL) and DOJ. Since DOJ functions primarily as a rule of law assistance program implementer, it reported all of its funding as obligations from State via interagency agreements. DOJ reported obligated funds separately for its two rule of law-focused bodies, the International Criminal Investigative Training Assistance Program (ICITAP) and the Office of Overseas Prosecutorial Development, Assistance and Training (OPDAT). DOJ’s data described all obligated funding for rule of law assistance globally from fiscal years 2014 through July 2019. To evaluate the reliability of DOJ’s data, we asked INL to confirm that DOJ’s obligation totals for the four selected countries matched INL’s. Ultimately, we found the data reported by INL and DOJ to be consistent and sufficiently reliable for the purposes of our reporting objective. To address our second objective, we reviewed documents and interviewed officials in Washington, D.C. We compared strategies and guidance described for the whole of government, specific departments and agencies, and bureaus and offices within those departments. We also reviewed the annual foreign assistance budget process to describe how agencies at headquarters collaborate to determine foreign assistance allocations generally and for rule of law assistance in particular. We reviewed the Integrated Country Strategy documents for each selected country, as well as USAID’s Country Development Cooperation Strategy. We reviewed these documents to identify rule of law thematic priorities and any guidance regarding roles and responsibilities, program implementation, and intra- or interagency coordination. To address our third objective, we selected a non-generalizable sample of four countries: Colombia, Kosovo, Liberia, and the Philippines for site visits or in-depth analysis. We also reviewed one international program— the Regional Training Center, based in Accra, Ghana, part of the International Law Enforcement Academy Program. In selecting these countries, we considered, among other things, (1) countries in which at least two of the three focus agencies had allocated or obligated rule of law assistance funds during fiscal years 2014 through 2018; (2) countries that were among the top half of recipients of rule of law assistance allocations from State and USAID during the same period, as reported in publically available information; (3) geographic dispersal of selected countries, to ensure that no more than one country was selected in each of State’s designated regions; and (4) suggestions from State, USAID, DOJ, and NGO officials with experience in the rule of law sector. We traveled to the Philippines in August 2019 and to Ghana, Liberia, and Kosovo in September 2019. We met with and interviewed officials from State, USAID, and DOJ, and from NGOs that had implemented U.S.- funded rule of law assistance projects, as well as local government officials who had participated in U.S.-funded rule of law assistance activities. We did not travel to Colombia, but conducted interviews with State, USAID, DOJ, NGO, and local government officials in Colombia by phone. We also interviewed officials in Washington, D.C., in person. To examine the processes used by State, USAID, and DOJ to design, implement and coordinate rule of law assistance in selected countries, we reviewed documents and interviewed agency and local government officials and implementing organization staff. We interviewed U.S. and local officials in Washington, D.C.; Colombia; Ghana; Liberia; Kosovo; and the Philippines on methods of identification of local needs, the process of program / activity design, and means of coordinating implementation among multiple agencies, among other topics. We also visited projects in the Philippines, Liberia, and Kosovo, where we were able to observe activities and speak with project implementers, partners, and beneficiaries. We compared the collaboration mechanisms used at these three missions to the collaboration requirements in the 2018-2022 State-USAID Joint Strategic Plan. We conducted this performance audit from December 2018 to June 2020, in accordance with generally accepted government auditing standards. Those standards require that we plan and perform the audit to obtain sufficient, appropriate evidence to provide a reasonable basis for our findings and conclusions based on our audit objectives. We believe that the evidence obtained provides a reasonable basis for our findings and conclusions based on our audit objectives. Appendix II: Standardized Program Structure and Definitions of Rule of Law Fiscal Year 2018 Funding Allocations for Rule of Law SPSD Program Areas The Department of State (State) and U.S. Agency for International Development (USAID) categorize and track their foreign assistance according to the Standardized Program Structure and Definitions (SPSD). State and USAID use the SPSD to define overall foreign assistance themes, and to code foreign assistance funds in order to track how U.S. agencies allocate their resources. The SPSD divides foreign assistance into category, program area, and program element. The SPSD comprises seven categories, including Democracy, Human Rights, and Governance, within which rule of law is a specific program area. Rule of law is composed of five program elements: (1) Constitutions, Laws and Legal Systems, (2) Culture of Lawfulness, (3) Checks and Balances with Judicial Independence and Supremacy of Law, (4) Justice Systems and Institutions, and (5) Fairness and Access to Justice. According to State officials, allocated funds are linked to specific SPSD codes in the annual Operational Plans, which are developed by either country-specific or regional operating units. Operating units also determine which program area and program element is the appropriate code for a specific activity. While the SPSD provides definitions of each program element, the definitions may overlap and operating units have some leeway to apply the SPSD codes based on their judgement. Table 1 shows funding associated with each rule of law program element and provides examples of rule of activities that were allocated funds in the selected countries. Beginning in fiscal year 2018, State’s Office of Foreign Assistance Resources (F) began to track allocated funds that were not coded as part of the rule of law program area, but were also planned to be used for rule of law themes, according to F officials. This process is referred to as “cross-attribution.” Cross-attributed funds are designated by operating units in their annual Operational Plan. State officials provided an example from fiscal year 2018, explaining that funding classified under two program elements from the Peace and Security program area were cross- attributed to rule of law. Table 2 shows the cross-attributed allocated funds in fiscal year 2018. Rule of Law Program Area and Component Program Elements Program Element DR.1.1: Constitutions, Laws, and Legal Systems Definition: Support the development of constitutions, laws, and legal systems that are procedurally and substantively fair, derived through participatory democratic processes, and consistent with international human rights standards. Both the substance of the law and the process by which it is developed must be legitimate and should be transparent. Includes analysis and dissemination of jurisprudence, innovations, and best practices in constitutional and law-making processes. Includes programs that assist in strengthening systems and processes for developing and enacting laws. Supports efforts to end impunity and enable peaceful transitions to democracy. Customary or religious dispute resolution mechanisms are included as laws, and legal systems do not have to be written or formal to be legitimate. Program Element DR.1.2: Culture of Lawfulness Definition: Foster and maintain a culture that is generally law-abiding, including through legal literacy, public awareness, constituency building, and citizen engagement in legal processes. Ensure that the public is educated about laws and regulations, perceives laws as legitimate and worthy of adherence, and respects the authority of law and legal institutions. Develop citizen demand for an effective and accountable justice system, and develop associations to advocate for all citizens. This includes programs that spur a culture of lawfulness by changing beliefs and attitudes by socializing people into a rule of law culture and changing norms so that people abide by the law. This also includes rule of law programs or civil society programs with a very specific focus on rule of law-related citizen awareness and education—i.e., supporting civil society organizations to participate in public hearings as part of a larger effort to strengthen the parliament or working with a civil society organization to provide legal representation of indigent populations as part of an overall judicial strengthening strategy. Program Element DR.1.3: Checks and Balances with Judicial Independence and Supremacy of Law Definition: Strengthen judicial independence as a means to maintain separation of powers and check excessive power in any branch or level of government. Strengthening judicial independence includes reducing improper influences on the judiciary through: open and participatory processes for judicial selection and appointment; security of tenure; satisfactory budget allocations to ensure adequate infrastructure, training, and working conditions; judicial self-governance including management of administrative, budgetary, ethics, and disciplinary processes and reform; and transparent court operations and judicial processes. Enhance the judiciary’s ability to check abuses of power by any branch or level of government through creating and strengthening constitutional or judicial review. This element also helps ensure that government is bound by law, and government decision-making is in accordance with the law. Work to create an independent and impartial justice system through institutional and behavioral change, and also to promote public respect for the justice system and judicial decision-making. Program Element DR.1.4: Justice Systems and Institutions Definition: Improve the systems, capacity, and sustainability of civil and criminal justice sector and institutions, improve the ability and skills of justice sector actors, and enhance coordination amongst them where appropriate (includes harmonization of policies, procedures, and systems, and public / private partnerships relating to both criminal and civil law). Justice sector actors and institutions include: police, border security, prosecutors, forensics experts, judges, court personnel, public defenders, mediators, arbitrators, conciliators, corrections personnel, private bar, law schools, legal professional associations, and training institutions for each of them. Support educational and training programs for all justice system actors, to include reform of pedagogy and curricula, continuing and in- service training, and support of accreditation and legal professional associations to promote professionalism; and encourage public service. Improve administrative and operational systems, including strategic planning, budget, procurement, and personnel. Program Element DR.1.5: Fairness and Access to Justice Definition: Work toward an equitable justice system by ensuring fairness in law and process. Fairness programs include non-discrimination law fair trial standards, effective administrative law systems to guard against arbitrary government action, and observance by all justice system actors and institutions of international treaties and customary law. Support monitoring and advocacy by justice sector NGOs, including strategic lawyering, trial monitoring, and policy dialogue. Improve equitable access to justice through increasing the quality and quantity of state and non- state justice services, with a particular focus on women, youth, the poor, LGBT persons, and other marginalized or vulnerable groups. This includes access to state and non-state dispute-resolution fora; court redistribution; mobile courts; the removal of language, gender, cultural, sexual orientation, gender identity and physical barriers; circulation of laws and legal decisions; alternative dispute resolution systems; and expanding access to legal services (e.g., public defenders’ offices, legal aid and legal services, labor law services, justice or legal resources centers). This also includes programs to educate the citizenry about their rights, how to access services, and how to encourage change. Programs primarily focused on trafficking in persons should be captured under Peace and Security (PS) PS.5 and programs focused on alien smuggling under PS.4. Peace and Security Program Area and Cross- Attributed Component Program Elements Program Element PS.9.2: Civilian Police Reform / Community-Oriented Policing Definition: Develop modern police forces through capacity-building (training and education both in the classroom and in the field) with focus on creating police institutions that can effectively fight crime and serve the public. Activities include, but are not limited to, police academy reform, organizational restructuring, professionalization, developing internal affairs, civil service reform (pay and rank reform), management and leadership, equipment and infrastructure support, aviation support, gender sensitivity, community-oriented policing, and public affairs. Assistance can also support the establishment and sustainment of effective, professional, and accountable law enforcement services (civilian police, stability / formed police units, and specialized units trained and equipped for specific issues such as port and maritime security, border security, gangs, or kidnapping). As the foundation for such a service is fundamentally rooted in the rule of law and respect for human rights, activities conducted in support of this element should be coordinated with programs under the Rule of Law elements in the Democracy, Human Rights, and Governance (DR) category. Program Element PS.9.4: Corrections Assistance Definition: Provide consultation on facilities, system, and process design; increase the capabilities and professionalization of corrections personnel at all levels through training, with the goal of developing sustainable operations and infrastructure in compliance with international guidelines, especially with respect to human rights. Implement an objective classification system to separate inmates by risk and status (felony / misdemeanor / pretrial); reduce pretrial detentions and other causes of overcrowding; eliminate factors that lead to violent uprisings and intergang violence; provide specialized equipment and vehicles to ensure secure operations; and develop a path toward independent international accreditation of facilities and operations to ensure effective, transparent, and accountable corrections systems. Activities conducted herein are in support of long-term development of effective, transparent, and accountable penal systems (described under the Democracy, Human Rights, and Governance (DR) Category). Appendix III: Global Rule of Law Assistance Allocations For this review, we collected and analyzed foreign rule of law assistance allocation data from the Department of State’s (State) Office of Foreign Assistance Resources (F). F tracks funding allocations by operating unit, which may be either one particular country, such as Afghanistan or Colombia, or a regional or programmatic unit, such as “State Western Hemisphere Regional” or “Near East Regional Democracy.” Allocations to regional and programmatic operating units shown in table 3 below are not inclusive of the allocations to individual countries on this list. For example, the funding allocated to State’s Western Hemisphere Regional operating unit does not include the funding allocated for the Colombia operating unit. While the regional operating units may conduct activities within particular countries, because the funds are managed from the regional perspective, they are considered different streams of funding. Both regional and country-specific operating units include funds for both State and the U.S. Agency for International Development. This appendix provides a review of rule of law-related issues in selected countries in four different geographic regions. We selected a non- generalizable sample of four countries—Colombia, Kosovo, Liberia, the Philippines—to review specific rule of law programs and the ways agencies coordinate their rule of law assistance in-country. The following pages include some key facts and background information about those countries, key challenges to the rule of law, and U.S. rule of law assistance activities. Colombia Facts Population • 48,168,996 (July 2018 est.) In 2016 the government of Colombia and the Revolutionary Armed Forces of Colombia (FARC) signed a final peace accord calling for demobilization of armed insurgents, the establishment of new transitional justice institutions, and the introduction of the FARC as a non-violent actor in the Colombian political community, according to the Central Intelligence Agency’s World Factbook. The World Factbook also reports that conflict resulted in many lives lost, more than seven million internally displaced persons, and tens of thousands of “disappeared” victims. While the FARC has laid down its arms, challenges posed by remaining insurgent groups and narco traffickers remain. According to U.S. officials, in the absence of a full establishment of rule of law and equal access to justice for all populations, the country risks sliding back into conflict. Key Challenges to the Rule of Law In recent years, according to officials from the Department of State’s (State) Bureau for International Narcotics and Law Enforcement (INL), the presence of illegal armed groups and narcotics trafficking organizations—which have led to an increase in violence against human rights defenders and social activists—has challenged the government of Colombia’s ability to project the rule of law into rural and former conflict zones. In addition, the Integrated Country Strategy for Colombia notes that much of the gold production in Colombia is carried out by organized criminal actors and armed groups, which robs the government of tax revenue, harms human health and the environment, and prevents licit producers from entering the market. Ethnic Composition Economy $14,400 GDP per capita (2017 est.) • Civil law system, influenced by Spanish and French civil codes Professional / technical capacity Need for enhanced skills for targeting complicated criminal acts (narcotics trafficking, money laundering, and dismantling organized crime) Corruption Corruption related to narcotics trafficking risks overwhelming the government U.S. Rule of Law Assistance Activities Colombia is one of the largest recipients of U.S. rule of law assistance in the world, and programs have sought to address an array of interrelated issues, according to U.S. officials. These officials said that State and the U.S. Agency for International Development (USAID) have collaborated on responding to violence against human rights defenders. INL works with the Department of Justice to improve the capacity of local prosecutors and law enforcement. USAID officials said that they support programs to increase access to justice, including strengthening indigenous justice, instituting alternative dispute resolution mechanisms, and collaborating with the Colombian Public Defender’s Office to expand legal representation for indigent and at-risk communities. They also said that they strengthen the investigation and prosecution of gender-based violence and social leader cases, investigation of public officials failing to protect social leaders, and justice and reparations for victims of armed conflict. Kosovo Facts Following violent internal conflict from 1998 through 1999, Kosovo remained under the stewardship of the United Nations (UN) until it declared independence in 2008, according to the Central Intelligence Agency’s World Factbook. According to Department of State (State) officials, the 2013 Brussels Agreement resulted in Kosovo and Serbia further partially normalizing relations; however, Kosovo is not universally recognized as a state and is not currently permitted to join the UN, North Atlantic Treaty Organization, or European Union (EU), among others. With U.S. support, the government of Kosovo has sought to reform its legal institutions with the aim of joining the EU. The United States is committed to helping the government of Kosovo reach this goal. 10,887 square kilometers in area (slightly larger than Delaware ) 1,907,592 (July 2018 est.) In 2018, administration of the legal system transferred from foreign oversight to full Kosovo government control, according to State officials. Consequently, local officials said they had to staff courts, translate casefiles kept in other languages, set new rules and regulations, and accomplish a range of other administrative functions in addition to day-to-day court operations. In addition, Kosovo’s legal system had to integrate the previously parallel Serbia-run legal system into Kosovo’s legal and judicial institutions, according to State officials. Albanian 92.9%, Bosniak 1.6%, Serb 1.5%, Turk 1.1%, Ashkali 0.9%, Egyptian 0.7%, Gorani 0.6%, Romani 0.5%, other / unspecified 0.2% (2011 est.). These estimates may exclude northern Kosovo because of census boycotts by Serb and Romani communities. Economy Professional / technical capacity Need for enhanced basic and advanced skills to address complicated criminal acts (money laundering, cybercrimes, trafficking in persons) Corruption Nepotism and cronyism are persistent features of the civil service and political culture $10,900 GDP per capita (2017 est.) U.S. agencies have provided assistance to the government of Kosovo through a variety of means. The Department of Justice embeds advisors in multiple offices of the government of Kosovo, including the Ministry of Justice, Ministry of the Interior, Kosovo Corrections, and police inspectorate, according to agency officials. These officials also said that the advisors provide traditional classroom- based technical training to Kosovo government officials, as well as real-time advice on particular cases and guidance for the development of new regulations. Officials also said that several U.S.-funded small-grant and educational exchange programs have enhanced the capability of local officials and civil society representatives to manage and advocate for an improved justice sector. To ensure an inclusive and transparent judicial process, officials from the U.S. Agency for International Development said they train local government officials in areas such as transparent procurement processes, and local and central government officials on drafting policies and legislation. Agencies at the U.S. Embassy in Kosovo also collaboratively operated a public affairs campaign to engage with Kosovo citizens on rule of law issues, according to U.S. officials. Liberia Facts Liberia, which the World Bank categorizes as a low income country, has a history that includes a 14-year civil war as well as the West African Ebola epidemic of 2014 and 2015. When the United Nations peacekeeping mission in Liberia completed its nearly 14-year deployment, the withdrawal of the several thousand peacekeeping personnel caused a significant economic recession, according to U.S. officials. The recession was exacerbated by drops in commodity prices, which left the government of Liberia unable to pay salaries to officials for months at a time, according to U.S. and Liberian officials. Within this context, the U.S. government has identified rule of law assistance as a priority for Liberia. U.S. officials stated that, by improving local rule of law, the United States can simultaneously address weaknesses in multiple sectors of Liberia’s government and social services, including land management, health, and justice. Geography Population Ethnic Composition Key Challenges to the Rule of Law According to U.S. officials in Liberia, enhancing Liberia’s land-management system is key to helping establish rule of law throughout Liberia. Land disputes were one underlying cause of the civil war and remain a threat to stability, according to U.S. officials. These officials explained that disputes are complicated by the destruction of the national property registry during the war, a critical shortage of qualified arbiters and surveyors, and some judicial officials’ poor understanding of property laws. Further, the officials said that persistent and slow-to-resolve land disputes highlight gaps in the administrative capacity of courts, local officials’ lack of technical skills necessary to resolve such disputes, and the ease with which corruption may subvert the rules-based order. • Kpelle, 20.3%; Bassa, 13.4%; Grebo, 10%; Gio, 8%; Mano, 7.9%; Kru, 6%; Lorma, 5.1%; Kissi, 4.8%; Gola, 4.4%; Krahn, 4%; Vai, 4%; Mandingo, 3.2%; Gbandi, 3%; Mende, 1.3%; Sapo, 1.3%; other Liberian, 1.7%; other African, 1.4%; non-African, 0.1% (2008 est.) Economy Corruption Allegations of corruption threaten the government’s authority but present an opportunity for empowering local anti-corruption actors U.S. Rule of Law Assistance Activities Both the Department of State (State) and U.S. Agency for International Development (USAID) have embedded trainers within Liberian government ministries, such as the Ministry of Justice and the Liberia Land Authority. USAID funded an integrated rule of law and property dispute program to address multiple areas of weakness. State adapted a Centers for Disease Control and Prevention- sponsored rapid response program to identify and resolve potentially destabilizing conflicts. USAID also supported wider access to justice by funding a new legal aid network and providing fellowships for law students to work in rural communities. Philippines Facts Geography Population The government of the Philippines’ expansion of the anti-drug campaign has counteracted progress made in reducing congestion in the Philippine courts and trial duration, according to U.S. officials. One local official we interviewed noted that violations of drug laws make up more than 70 percent of the criminal docket and that large numbers of arrests have led to a highly congested court system. A high volume of arrests and slow processing of cases has also resulted in a dramatic increase in the number of pretrial detainees, according to U.S. officials. 105,893,381 (July 2018 est.) Ethnic Composition Economy Legal System Court docket congestion Anti-drug campaign has overwhelmed an already burdened case management system $8,400 GDP per capita (2017 est.) • Mixed legal system of civil, common, Islamic (sharia), and customary law U.S. Rule of Law Assistance Activities Department of State (State) U.S. Agency for International Development (USAID) and Department of Justice (DOJ) programs are designed to respond to the shift in the government of the Philippines’ priorities, according to U.S. officials. State provided training to Philippine law students, judges, and law enforcement officials that emphasized improved collection and interpretation of evidence. State also funded the establishment of legal aid clinics to improve community access to representation. USAID funded the introduction of “e-courts” and other information technologies in the judicial sector to improve the efficiency and transparency of court proceedings. USAID also funded programs to introduce new legal mechanisms, such as plea bargaining and continuous trial, to reduce the pre-trial detainee population and speed the administration of justice. DOJ has programs to increase prosecutor-police cooperation and to build capacity to combat specific threats, including trafficking in persons, cybercrime, terrorism, and financial crime. Appendix V: Comments from the State Department Appendix VI: Comments from the U.S. Agency for International Development Appendix VII: GAO Contact and Acknowledgments GAO Contact Staff Acknowledgments In addition to the contact named above, Joe Carney (Assistant Director), Brian Hackney (Analyst in Charge), Benjamin Legow, Carolina Morgan, Afsana Oreen, Abena Serwaa, Parul Aggarwal, Debbie Chung, Justin Fisher, Jenny Grover, Chris Keblitis, and Alex Welsh made key contributions to this report.


Background Hospice Services Hospice care helps patients who are terminally ill—as well as the families of those patients—maintain their quality of life. Hospice care focuses on the comfort of patients (palliative care), not curing the illness. Patients are eligible for hospice care under Medicare if they have a life expectancy of six months or less. Most patients get hospice care at home, which typically includes use of controlled substances, including opioids such as oxycodone, to provide pain relief. According to CMS, hospice teams are required to include a physician, nurse, social worker, and pastoral or other counselor; and may also include hospice aides, trained volunteers, and speech, physical, and occupational therapists. The patient selects a primary caregiver when first admitted into home hospice, and this person becomes a member of the home hospice team. The primary caregiver, often a family member, provides most of the care for the patient in home hospice, including most of the physical care for the patient, keeping records of symptoms and other problems, and communicating with the hospice team. Disposal of Controlled Substances in Home Hospice The Controlled Substances Act regulates the manufacture, distribution, use, and disposal of controlled substances. In general, the Controlled Substances Act was enacted to facilitate the use of controlled substances for legitimate medical, scientific, research, and industrial purposes while preventing them from being diverted for illegal uses. DEA is the primary agency with responsibility for administering and enforcing the law, and DEA provides oversight of all persons or entities required to register with DEA. The Controlled Substances Act has been amended twice to clarify federal requirements for patient disposal of controlled substances. 2010. The Secure and Responsible Drug Disposal Act of 2010 amended the Controlled Substances Act to allow a patient who has lawfully obtained a controlled substance to deliver the controlled substance to another person for the purpose of disposal, without being registered with DEA. Any person lawfully entitled to dispose of a deceased patient’s property may also deliver the patient’s controlled substances to another person for the purpose of disposal. The person receiving the controlled substances must be legally authorized to do so and the disposal has to take place in accordance with DEA regulations, which DEA issued in 2014. Among other things, the DEA rulemaking clarified that home hospice personnel could not dispose of a deceased patient’s controlled substances unless authorized to dispose of the patient’s property by a state or local law. Instead, the rulemaking encouraged home hospice personnel to assist patients and their families in disposing of controlled substances in accordance with the Controlled Substances Act, and partner with authorized collectors to promote or jointly conduct mail-back programs. 2018. The SUPPORT Act amended the Controlled Substances Act to allow employees of qualified hospices, whether or not registered with DEA, to dispose of a patient’s unused controlled substances onsite and in accordance with all applicable laws after the patient’s death or the controlled substance expires. The employee must be a physician, physician assistant, nurse, or other person who is: employed by a qualified hospice; licensed to perform medical or nursing services by the jurisdiction in which the patient is receiving hospice care; acting within the scope of their employment in accordance with applicable state law; and trained on the disposal of controlled substances by the qualified hospice. If the hospice patient no longer requires the controlled substances because of a change in his or her care plan, only the patient’s DEA- registered physician may dispose of the patient’s unused controlled substances. The authority to dispose of unused controlled substances under the SUPPORT Act applies only to qualified hospices. Such hospices must have written policies and procedures for assisting in the disposal of controlled substances after the patient’s death, and must document that they provided and discussed these policies and procedures in an understandable manner with the patient and family. In addition, the hospice must document the type of controlled substance, dosage, route of administration, and quantity disposed, as well as the time, date, and manner in which the disposal occurred. The SUPPORT Act also allows the Attorney General to issue guidance to hospices regarding the disposal of controlled substances in patients’ homes. Federal Oversight According to DEA officials, DEA’s oversight of the disposal of controlled substances in home hospices is limited to instances of suspected or actual diversion. This is because the SUPPORT Act allows employees of qualified home hospices to dispose of unused controlled substances in patients’ homes without registering with DEA. CMS regulates Medicare-certified home hospices through the Hospice Conditions of Participation, which are intended to protect the health and safety of individuals under hospice care. Hospices must be in compliance with the Hospice Conditions of Participation to participate in the Medicare program. CMS oversees compliance with the Hospice Conditions of Participation primarily through inspections, which are conducted by state survey agencies contracted by CMS or CMS-approved national private accrediting organizations. Among other things, the Hospice Conditions of Participation require hospices to have written policies and procedures for the management and disposal of controlled substances in the patient’s home, discuss the hospice policies and procedures for managing the safe use and disposal of controlled substances with the patient and family in a manner that they understand, and document that the written policies and procedures for managing controlled substances were provided and discussed. CMS does not oversee the disposal process. Selected Home Hospices’ Experiences, Best Practices, and Challenges in Disposing of Controlled Substances Selected Home Hospices’ Experiences Disposing of Controlled Substances According to a national hospice association official, each hospice had a different approach to disposal prior to the DEA rulemaking in 2014. Some hospices asked their employees to dispose of controlled substances to prevent diversion and others did not. After the DEA rulemaking, some states enacted laws granting authority to hospice employees to dispose of patients’ unused controlled substances when the medications were no longer needed, upon death of the patient, or both. Requirements under states’ laws vary (see appendix I). Hospices in some states without laws on the disposal of controlled substances in home hospice began, or resumed, disposing controlled substances in patients’ homes following the enactment of the SUPPORT Act in 2018. Officials from six selected home hospices expressed support for the authority to dispose of controlled substances granted by the SUPPORT Act, and officials we interviewed from two hospices operating in states without disposal laws told us their hospices had resumed disposing of controlled substances in patients’ homes under the authority granted by the SUPPORT Act. In contrast, an official from one hospice told us that their hospice had not begun disposing of these medications with the enactment of the SUPPORT Act because the state department of health directed it not to do so until a state law granting disposal authority to hospices had been enacted. For now, the hospice has continued with its practice of educating patients’ family members on how to dispose of controlled substances themselves. Selected Home Hospices’ Policies and Best Practices for Disposing of Controlled Substances and Reducing the Risk of Diversion Medicare-certified hospices, including the seven we selected for our review, are required by CMS’s Hospice Conditions of Participation to have written policies and procedures for the safe disposal of controlled substances in a patient’s home. The policies and procedures may include best practices, such as measures for assessing and mitigating the risk of diversion in a patient’s home, and if and how the hospice will conduct controlled substance disposal. According to officials we interviewed from the selected hospices and state hospice associations, hospices utilize various strategies or best practices to attempt to mitigate diversion risks, including, but not limited to, the following: Education on controlled substance use and disposal. Hospice policies may include disposal education for patients and their caregivers. Specifically, officials from five hospices and five state hospice associations said that patient and family member education on controlled substances and their disposal begins or should begin upon the patient’s admission into hospice care or as soon as possible thereafter. According to officials from three hospices, their staff may use written agreements or acknowledgements that must be signed by the patient or their caregiver. An official from one hospice association told us the association made an agreement template available to their hospice members that can be used to ensure patients understand how to properly use prescribed controlled substances, agree to use them properly, and will not give them to anyone else. Prescription drug counts. Officials from four hospices and two state hospice associations told us that, in general, nurses conduct prescription drug counts at every visit to check if the proper amounts of medications remain. Officials from two of these hospices said that drug counts should require the family’s acknowledgement or be witnessed. Officials from three other state hospice associations mentioned that their members use drug counts as well but did not specify if this occurred at every visit. These counts can be used to recognize possible drug misuse or diversion. If there is an indication that diversion may be the cause of an incorrect count, hospices can put additional drug diversion risk reduction practices in place. Lockboxes. If diversion is suspected to be a risk or if there are children present in the patient’s home, a hospice may choose to use a lockbox to store the patient’s medications and limit access to only an alert patient or their caregivers. Officials from five hospices and five state hospice associations mentioned that their employees and members use lockboxes for such purposes. One hospice official explained that lockboxes may also be used as an accountability tool so that those with access cannot accuse others of stealing if drugs are unaccounted for. Pharmacy cooperation. A hospice may choose to have the pharmacy mail a prescribed controlled substance in smaller quantities and with greater frequency. For example, an official from one of the selected hospices explained that the pharmacy they use will deliver medications as often as daily if needed to reduce the risk of controlled substances being diverted. Similarly, an official from a state hospice association explained that some pharmacy managers and benefits managers note when a refill for a prescription is requested sooner than it should have been and alert the hospice. Witnessed disposal or assisted disposal. Pursuant to some state disposal laws and according to officials from five hospices and four state hospice associations, controlled substance disposal and assisted disposal must or should be performed with a witness present. The state disposal laws may specify who the witness must be. For example, according to two state laws, a family member or a second hospice employee may witness disposal. In-home disposal products. Hospices may have varying preferences for how they dispose of controlled substances; officials from four of the selected hospices mentioned using in-home disposal products, and two specifically explained they believed these to be the safest disposal method, even though, according to the officials, it can be costly. Officials from another hospice told us they receive their in- home disposal products through a grant program. Documentation. Officials from four selected hospices told us their employees document the completion of certain tasks, such as diversion risk assessments, drug counts, drug disposal, and the refusal of drug disposal. An official from one of these hospices told us their staff perform and document a diversion risk assessment of the patient’s home. While officials from four hospices told us their employees perform drug counts, only one official specified that employees from their hospice document the drug counts. Another hospice official explained that disposal documentation includes the name, dosage, form, and administration method of the medication. One hospice official told us that if a patient’s family members refuse disposal, they must sign a form stating they declined to allow the nurse to dispose of the patient’s remaining drugs. Selected Home Hospices’ Challenges with Disposing of Controlled Substances Officials from selected hospices and state hospice associations in our review described various challenges associated with disposing of controlled substances in patients’ homes. The challenges described by the selected hospices and state hospice associations include but are not limited to the following: Certain disposal methods may be too costly. An official from one state hospice association said that most of its members do not use a drug disposal process, which may include a mail-back program or in- home disposal product, because it is an extra expense, and an official from one hospice said that after pricing an in-home disposal product, their hospice decided it was cost prohibitive. One state hospice association official explained that although most of its in-home hospice members use an in-home disposal product, in instances when the hospice employee is disposing of 40 to 50 vials, the expense of this disposal method can be burdensome. The official told us the product costs approximately $6 each and fits four to five vials of pills in each. Disposal can be time consuming. One hospice official said that disposal can sometimes be a time-consuming and resource-intensive activity. According to two state hospice association officials, sometimes a patient’s family will ask the disposing hospice employee to dispose of all of the patient’s unused prescription drugs that remain in the home, not only controlled substances or drugs prescribed under hospice care. Officials from two of our selected hospices and two state hospice associations told us that it is not atypical for a hospice patient to have bags or boxes full of unused medications, though the officials did not describe this as a disposal challenge for hospices. Lack of a witness. One hospice official told us that it is a challenge when a witness is not available or is unwilling to participate in a drug count or disposal. Another hospice official indicated that the patient’s primary caregiver is not always the family member present at the time of a drug count or disposal. This can create a challenge, as the hospice employee must either wait for the patient’s primary caregiver to arrive, or for that person to agree to witness a count, disposal, or both. Family members and caregivers sometimes refuse to dispose of controlled substances. Officials from two hospices and three state hospice associations indicated that a family’s refusal to dispose of a patient’s remaining medications can be a challenge, though one hospice official said it occurs infrequently. An official from another hospice said that if a family initially refuses disposal, hospice staff return after two weeks to complete the disposal process. Inconsistencies between state laws and federal law. Hospices must comply with applicable federal and state laws governing controlled substances, and to the extent state law is inconsistent with the Controlled Substances Act, hospices must follow federal law. Hospice officials told us that inconsistencies between state laws and federal law can cause challenges. For example, the SUPPORT Act limits disposal to only physicians, physician assistants, nurses, or other hospice employees who are licensed to provide medical or nursing services. An official from one hospice stated that the hospice used the help of social workers and volunteers to dispose of controlled substances. Regulations in this state do not specify which types of hospice employees are permitted to assist with disposal. According to the official, social workers and volunteers helped dispose of patients’ controlled substances when disposal occurred at a later time, rather than immediately following a patient’s death. Since the SUPPORT Act limits disposal to home hospice personnel with specific qualifications, it is unclear whether hospices are able to allow social workers and volunteers to help in that capacity. As another example, under the SUPPORT Act, only a hospice patient’s DEA-registered physician can dispose of the patient’s controlled substances if the plan of care has been modified. However, some state laws allow other types of hospice employees to perform disposal in this circumstance. Officials from two hospices in these states indicated it will be a challenge for disposal to be limited to physicians when a patient’s plan of care is modified. Similarly, officials from two other selected hospices in states without disposal laws also stated that this would be a challenge. For example, one hospice official explained that their hospice does not have many physicians, and it would be unlikely for a physician to be able to visit a patient’s home solely to handle disposal. Agency Comments We provided a draft of this report to the Departments of Justice and Health and Human Services for review. The Departments of Justice and Health and Human Services provided technical comments, which we incorporated as appropriate. We are sending copies of this report to the appropriate congressional committees, the Attorney General of Justice, the Secretary of Health and Human Services, and other interested parties. In addition, the report will be available at no charge on GAO’s website at http://www.gao.gov. If you or your staff have any questions about this report, please contact me at (202) 512-7114 or at CosgroveJ@gao.gov. Contact points for our Office of Congressional Relations and Office of Public Affairs can be found on the last page of this report. Other major contributors to this report are listed in appendix II. Appendix I: Summary of Five States’ Controlled Substances Disposal Laws for Hospices To describe what is known about selected hospices’ experiences disposing of and preventing the diversion of controlled substances in home settings, we selected five states with laws on the disposal of controlled substances in home hospices and six states without such laws. The five states with disposal laws were chosen for this review because they had state hospice associations that were involved in disposal discussions with a national hospice association or they had higher opioid-related death rates than most states. The summaries in Table 1 below reflect our reviews of the five states’ laws. Appendix II: GAO Contact and Staff Acknowledgments GAO Contact Staff Acknowledgments In addition to the contact name above, Martin T. Gahart (Assistant Director), Deborah J. Miller (Analyst in Charge), Samuel G. Amrhein, Kaitlin M. Farquharson, and Christina C. Murphy made key contributions to this report.