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Taking on Poland's Identity Crisis

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Last week, Assistant Secretary of State for European and Eurasian Affairs, Victoria Nuland, was in Poland meeting with civil society and government leaders ahead of the NATO Summit scheduled for July 8 and 9. Poland welcomed the opportunity to shore up its request for a greater NATO military presence on its territory to protect against Russian incursions. For her part, Nuland emphasized that the upcoming NATO conference is not just about providing more security in the east and south of Europe, but also about defending the Organization's "free democratic way of life" against autocrats, terrorists, forces of disunity and xenophobia.

Her references to the "family of values" shared by NATO were aimed at Poland's Law and Justice Party, which has systematically threatened these values since it came to power in October 2015. Idolizing fellow Visegrad authoritarian Viktor Orban, Law and Justice immediately began rolling back institutional protections for the rule of law and against corruption, ironically, putting Poland on track to emulate the malevolent and threatening Russia it seeks protection from.

If it seeks to emulate Hungary's - and Russia's - backsliding toward authoritarianism, Poland's new government is succeeding. It has ignored its own civil society, which protested loudly against a radical takedown of the Constitutional Tribunal (equivalent to the Supreme Court) that began on December 22, 2015, when the new government reneged on the appointment of three judges approved by the former administration, packed the court instead with five Law and Justice party members, and then passed new laws requiring a super-majority for decision-making AND that the court review cases only in chronological order, thereby preventing review of any Law and Justice policies until the Tribunal's backlog has been completely cleared. It thus removed any check on its power that could come from the judicial sphere.

Having thus neutralized judicial checks on its power, the new government proceeded to grab more. After four former agents of the Central Anti-Corruption Bureau were pardoned, including Mariusz Kaminski, who had been charged with abuse of power for charging innocent people with corruption, Prime Minister Beata Szydlo immediately appointed him to serve as coordinator of intelligence agencies in her cabinet, making him responsible for drafting the program for combatting abuse in public institutions - like the Central Anti-Corruption Bureau. Again against the backdrop of nationwide protests in mid-January, the government passed a new surveillance law giving the government broad access to an individual's online content without a warrant, using legislation that - in draft form - had previously been deemed "incompatible with the constitution" by the Constitutional Tribunal. In the middle of it all, on January 7, the government passed a law giving the treasury minister the power to hire and fire broadcasting chiefs in TV and radio, as well as civil service directors.

Law and Justice Party leader Jaroslaw Kaczynski has a track record for sowing xenophobia, claiming that Muslims have imposed Sharia law in parts of Sweden, and that they carry parasites that don't affect them, but could harm Europeans. His party's threats to immigrants, rule of law, free expression, and basic human rights are playing into Russian interests in a weak and divided Europe that will refuse immigrants from Syria, fail to agree on a Mid-East policy, repeal EU sanctions against Russia, and allow Russia to exert greater cultural and economic power in the region, as it already seeks to do through media spin, energy dependence, and leadership of a "traditional values" agenda.

Poland's shift away from rule of law observance is therefore concerning, not only because Poland has been the poster-child for democracy in Eastern Europe, but also because it tips the scales away from democracy and pluralism in the Visegrad region, which includes Hungary, Poland, the Czech Republic, and Slovakia, and threatens to do so in the EU as a whole. The four Visegrad countries have now - right on cue - banded together to oppose Germany's plan to apportion acceptance of refugees, and are instead seeking to themselves seal off the Balkan route to Europe.

The EU has already expressed concern about Poland's trajectory, initiating the Rule of Law Mechanism of the Council of Europe on January 13 to hold a hearing on Poland's actions. The Rule of Law Mechanism allows the EU to review threats to democratic governance and human rights in a member state, and to impose consequences if a country is found to be out of line with the Union's democratic values. It can go so far as to deprive Poland of voting rights in the EU Council, a body made up of representatives of all EU states that makes EU policy-decisions.

The Venice Commission, including American representative - former Columbia Law Professor Sarah Cleveland - just completed a visit to Poland on February 8-9, with the goal of reviewing the amendments to the Act on the Constitutional Tribunal referenced above. Its report on the change in the law is due out in March for adoption by the full Venice Commission, though Poland's government has already dismissed its opinion, pointing out that the visit amounts to an intervention of "non-elected people" into the governance of Poland.

The U.S. has also expressed concern, with Senators McCain, Cardin, and Durbin having last week written a letter urging the government of Poland to consider the effect of its actions on rule of law, prosperity, stability, and tolerance. Kaczynski, responded that the American senators did not understand Poland and that the sentiments in their letter smacked of Stalinist rhetoric.

Ironically, within a day of this reference to U.S. concerns about pluralism and tolerance as Stalinist, Poland's Defense Minister Waszczykowski, in Washington this week, made his own plea for U.S. and NATO support, again referencing Poland's need for military reinforcements to shore up its eastern flank against threats of Russian aggression, stating that the U.S. and Poland are "close friends and allies with a shared history and values."

Considering the "game-changer" status of Poland's politics in the EU, the U.S. should take assertive action in response. President Obama should use the opportunity of the NATO Summit to remind Poland of its need to uphold the "shared values," it likes to claim. U.S. officials, like Nuland should push for legal and policy changes prior to the Summit to head off presidential criticism. Modifications to the laws that have hamstrung the Constitutional Tribunal should be a priority.

The EU should also take note. The Rule of Law Mechanism alone is pretty ineffective, but combined with other actions could call Poland's government to account, and could spark real change. The EU Parliament should follow up the Rule of Law Mechanism with its own inquiry into Poland's actions, and the EU should seriously consider following through on the Rule of Law investigation by instituting Article 7 proceedings under the Lisbon Treaty. A message sent to Poland would resound in the Czech Republic, Slovakia, and might even result in some newfound EU backbone on Hungary.

With use of all three of these EU mechanisms, and coordinated action between the EU and the US, Poland might just realize there's a difference between Stalinism and global concern for rule of law, human rights, stability, and prosperity.

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