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The Kabul Dispatches
Jul. 27th, 2004
02:29 pm - CHAOTIC, FLAWED AFGHAN COURTS ARE NO PLACE TO TRY AMERICANS
Three Americans have been caught up in a political quagmire and legal black hole in Afghanistan. There is really no dispute that what they did was to gather and provide information to American authorities about potential terrorists intent on attacking the United States and US interests, and to make a journalistic record of what was going on. The opens questions are what methods were they using, and were they acting, as they claim, with the knowledge and approval of American authorities.
These questions are of great concern to the American public. The truth should be known. If accused of crimes, these men should be charged and tried in American Courts. Perhaps Congressional hearings are in order so that we might know exactly what the government officials are, and are not, doing to pursue and capture terrorists in Afghanistan One thing, however, is clear. There can be no proper hearing, nor fair trial for the three Americans who were pursuing Afghan terrorists, in the current Afghan legal system.
The Rule of Law has been virtually non-existent in Afghanistan for thirty years, through the Soviet occupation, a devastating Civil war, and the Taliban regime. The legal system, as is much of Afghanistan, is in the process of reconstruction. That process has only just begun, and at this early stage in its development is unable to provide sufficient procedural safeguards to ensure a fair trial or reliable factual finding; even if the judges presiding knew and followed they law.
Both the Afghan Constitution and Interim Criminal Code are in their infancy and are simply not yet known, understood, or being routinely applied in the Afghan courts. International agencies are still in the process of teaching basic constitutional principles and rules of procedure to the Judges and prosecutors charged with the responsibility of conducting trials. Defense lawyers are still being taught how to identify and assert the rights of their clients. No one in Afghanistan has experience in conducting a trial consistent with international standards of justice, even were the resources available to do so, which they are not.
The proceedings of last week are a perfect example. They are being reported as part of the trial. The judges and prosecutor probably thought it was. We, however, are not certain whether the statements given by the "witnesses" at that time are to be construed as trial evidence, or if there will be an opportunity by the defense to question the witnesses who were not questioned by the defense at the time. The official Court translator was incompetent and replaced by a college student who, while better, was still unable to provide adequate translation to meet legal standards. Two of the defendants were, of course, without counsel at this "trial". The defendants were afforded but two weeks to prepare a defense and will be rushed to trial while others linger in Wellayat Prison for months awaiting a hearing.
This is chaos, not the Rule of Law. As such, it is fully consistent with what I saw this past April and May in Kabul where I was a Kathryn Wadia International Fellow working with the International Legal Foundation training Afghan criminal defense lawyers . Trials had no questioning of witnesses. Legal requirements regarding due process and procedure were ignored, if even known to exist. The procedures that I saw in Kabul, and to which these American are being subjected, are so far below international standards as to shock the conscience. The United States government should be vigorously protesting to the Karzai government that American citizens are being tried under such circumstances, not putting out wanted posters to encourage the Afghans to take Americans into custody.
The Afghan authorities have taken these Americans into custody for questioning suspected terrorist and providing the information to the American authorities. Isn't that why Afghanistan was invaded, because of the refusal of the Taliban government to surrender Osama bin Laden and curtail the terrorists? President Hamid Karzai faces an election in September which may or may not take place, in large part because the government is unable to provide sufficient security against the warlords who control large parts of Afghanistan. One can only wonder whose interest is best served by burying three Americans, who had been gathering information about terrorist activities, in an Afghan jail.
The important questions regarding who Jack Idema, Brent Bennett, and Ed Caraballo really are, what exactly they were doing in Afghanistan, and what U. S. authorities did and did not know about their activities, will never be answered in what currently passes for a criminal justice system in Afghanistan. For the truth to be known, and justice be done, these men must be heard in a proper forum, perhaps an American trial, perhaps before Congress, where the facts can be examined and the truth can be learned. That is not capable of happening in Afghanistan before an Afghan court.
02:26 pm - Scapegoats?
Are Keith Idema, Brent Bennett, and Ed Caraballo being used as scapegoats to divert international attention away from a pattern of abuse of prisoners by Americans in Afghanistan? On July 5th, after reportedly being tipped off by American officials, the three Americans were taken into custody by Afghan security forces and accused of detaining and torturing eight Afghan citizens.
Initial reports indicated that eight prisoners had been found hanging upside down. It now appears as if this allegation was without foundation and has been withdrawn. Keith Idema acknowledged that he was assisting the United States in their attempts to root out and capture potential terrorists. He also stated that his activities were both known and approved by American officials.
Mr. Idema told journalists that he had been contact with the Pentagon regarding his activities. He named Heather Anderson at the Department of State who he said “applauded our efforts.” The Associated Press reported that there is no one by that name in the Pentagon telephone book. Who is Heather Anderson? A simple Google search disclosed her to be “Director, Strategic Integration and Acting Director, Security Office of the Deputy Under Secretary of Defense, Counter Intelligence and Security, Department of Defense. The Deputy Under Secretary of Defense for Intelligence is William Boykin.
Mr. Idema’s representations are supported by the reluctant admission by Maj. Jon Seipmann that Idema had, in fact, handed over to the United States military at least one person believed to be on their list of detainees, and that the man was held at Bagram for two months. Jawed Ludin, spokesman for Afghan President, Hamid Karzai, has acknowledged that at least some of those detained by Mr. Idema were still being investigated for potential links to extremist groups.
The United States denies all responsibility. State Dept. spokesman Richard Boucher said, “The U.S. government does not employ or sponsor these men.” Who is telling the truth, and why would the United States abandon three Americans to the vagaries of a non-functioning Afghan legal system?
CNN reported that the arrest of the three came as the U.S. military investigated allegations of detainee abuse in Afghanistan at the hands of American jailers, and that the investigation was prompted by the exposure of the abuses at Baghdad’s Abu Ghraib prison. The investigators really didn’t need to look very far. According to Human Rights Watch “mistreatment of prisoners by U.S. military and intelligence personnel in Afghanistan is a systemic problem and not limited to a few isolated cases.” On July 22nd the Inspector General of the Army issued a report admitting that since 2001, the U.S. military had found 94 cases of alleged or confirmed abuse of prisoners by U.S. soldiers, This is a significantly higher number than all others previously given by the Pentagon. The truth is getting more difficult to conceal.
Even earlier, on May 13, 2004, John Sifton, a researcher for Human Rights Watch reported that for more than a year Afghan victims had been telling the humanitarian organization about mistreatment while in U.S. custody. The week before Mr. Sifton’s disclosure, Human Rights Watch made a request to U.S. Secretary of Defense, Donald Rumsfeld, for access to all detention sites maintained by the United States in Iraq, Afghanistan and other locations. On May 10, 2004, based upon numerous complaints, The Afghan Independent Human Rights Commission (AIHRC) also requested access to U.S. detention sites in Afghanistan. Neither request was granted. Rather, Jack Idema, Brent Bennett, and Ed Caraballo were arrested the day after the Fourth of July.
Does the United States have something to hide? The U.S. military maintains approximately twenty detention facilities in Afghanistan. In addition, an unknown number of people are currently detained in Afghanistan by the C.I.A.. The United States has provided no adequate explanation for at least four suspicious deaths of detainees -- two of which were ruled homicides by the military doctors who performed the autopsies. The military intelligence unit that oversaw interrogations at the Bagram Detention Center in Afghanistan where these deaths occurred were later placed in charge of interrogations at Abu Ghraib, in Iraq. Capt. Carolyn A. Wood, who is believed to have written the interrogation rules posted for Abu Ghraib, had served at Bagram from July 2002 until December 2003. In sum, according to Human Rights Watch, the United States operates its detention facilities in Afghanistan in a climate of almost total impunity. The abuses are widespread, continuing, and damning -- especially in light of the exposure of similar abuses at Abu Ghraib.
It is difficult to escape the conclusion that from the point of view of a government that has been engaged in a pattern of human rights abuses, has attempted to cover them up, and is facing a strongly contested election in November; some scapegoats might look pretty good right about now. And a deficient Afghan legal system might be just the place to create three of them.
May. 20th, 2004
11:05 pm - A Trip Outside of Kabul
© Robert Fogelnest 2004
I was supposed to take a trip to Gardez yesterday morning. A group of us had planned an excursion to see the newly constructed courthouse and visit with the Saranwal in order to learn a bit about how the justice system was operating there. A German colleague had arranged for a couple of cars and drivers, and five of us foreigners intended to head south. Actually, the planned trip was never much more than a boondoggle -- a good excuse to play hooky to see another part of Afghanistan. Gardez is about 100 kilometers south of Kabul on the road to Kandahar. It’s kind of like driving from Manhattan to The Hamptons for the afternoon, except when you arrive there are no beaches, no Porsches, and no Dean & Deluca. I can’t tell you much more about the place because we never went.
The road to Kandahar is not under complete government control. Rather it is more under the control of warlords, their militias, and freelance bandits. And just to spice things up a little, this is Taliban country. I hadn’t given it much thought and assumed that the people who had arranged the trip were neither reckless, crazy, nor self-destructive. I’m sure that the actual danger is no more than that which faces the average tourist from Milwaukee who comes to Manhattan, gets mugged, and deserves what they got for taking up space in good restaurants. But my people in New York said, “No way!” Actually they said, “Do what you want, but we are not authorizing you to go, so don’t hold us responsible if there is a problem. And we think that it is a really, really bad idea.“ It’s called a heavy disclaimer followed by very good advice.
Frankly, I wouldn’t have minded too much if we had been abducted and I merely had my head severed. Not that I would normally volunteer for such an afternoon but, after all, that is far more glamorous that wasting away with emphysema in St. Vincent’s Hospital, and my friend Goldie said that he would get some humanitarian award named after me if something like that happened. Besides, it probably would have generated some extensive publicity for the posthumous publication of my Dispatches, thereby putting a few extra bucks in the pocket of the orphaned Jake bin Bob. My experiences here, however, have taught me that some of these guys are really quite inventive with ways to use jumper cables and the like, and it occurred to me that I would be the only American in the convoy. Now what with recent accounts of the treatment of Muslim prisoners by Americans, I figured that what might start out as a garden variety robbery could easily end up somewaht more unpleasantly, and who would really blame the warlord/militiamen/bandits except Donald Rumsfeld, whose credibility is pretty much shot among anyone who is not clinically brain dead, anyway. So I swallowed my pride (instead of my tongue or my testicles) and told my colleagues about the travel prohibition imposed by my sponsors in New York. O.K., so I fudged a little in order to save some face.
My colleagues here were most kind and gracious. They aren’t like my American friends who would certainly have made unkind and ungracious remarks alleging that I lacked a complete set of male genitalia, notwithstanding my having avoided capture and dismemberment. It was suggested that we head north, to Parwan Province, and the town of Charika. And so we did.
The road to Charika is dusty, potholed, crowded, colorful, and chaotic. It is lined with wonderful crumbling walls built of mud, shops and workspaces built in old shipping containers, open fields littered with rusting tanks from the civil war, cemeteries with green flags flying in honor of mujaheddin martyrs, and still active minefields. The mined areas are marked with red painted stones. I wanted to bring one home as a paperweight but my traveling companions were appalled by the idea. They said something about the possibility of someone having their leg blown off as a result of my removing warning markers, or some such other liberal nonsense. These humanitarian types can be really stuffy at times.
The driving in Afghanistan is exactly what you would expect in a place where there is no traffic police hiding behind billboards and you only go to jail if you are unable to pay baksheesh. It’s a bloody free for all. Literally. I saw a donkey hit by a car. A donkey! The car was barreling down the road, passed a truck and bam! – Donkey collision. The beast left a huge dent in the hood of the car that hit it, and went flying up the air. It landed on its side, got up, shook it off, and walked away. Talk about playing hurt. On the way back there was a minor traffic jam as a result of a minor head on collision. As we passed the accident scene a guy standing on the road with blood streaming down his face just stared back at us as we stared at him. Jacoby & Myers could make a fortune here if there was actually a functioning court system.
When we arrived in Charika we went off in search of the prosecutor’s office. After a few false turns we found it. Abdul Jalil Rafif is the Chief Saranwal of Parwan Province. Despite the fact the we arrived unannounced, he greeted us with the hospitality to which I have now become accustomed in such situations. Tea, little candies, and consummate courtesy. He also had flies. Lot of flies. I’d say about 25% of all of the flies in Afghanistan were in his office. Mr. Rafif was open to answering all of our questions and I learned quite a bit. As senior prosecutor, he is paid the equivalent of $100.00 per month. His four assistants are paid less, as little as $35.00 per month. Many cases can’t be prosecuted because the offenders are too powerful. They recently had a spree of home invasions, but caught the perps. They have never had a defense lawyer oppose them in any of their cases, and there are none in the province. They have about 30 cases pending ranging from small thefts to murder. There are about 45 people in the local prison, men and women. That kind of stuff.
One of the women, Mahbooba, which means “beloved”, had been sentenced to seven years in prison for leaving her husband, taking her two children, and entering into a marriage contract with another man. Apparently she was not so beloved by her first husband after she split with the kids, and he had complained to the police about it. The prosecutor was appealing her sentence and arguing that she should be stoned to death.
In fairness,there has only been one reported stoning in Afghanistan in many years, and that was during the time of the Taliban, so she will probably only have to rot in prison for seven years. Of course, in the United States she would have gotten the house, the car, the stock portfolio, and the condo in Aspen, and the first husband would probably have been required to support the whole crew, but they do things differently in Parwan Province. Under the new constitution, any death penalty must be approved by the President, and that is very unlikely because in most of the countries that provide aid to Afghanistan stoning as means of punishing an offender is considered inhuman, and Afghanistan needs the money. For example, in the United States we would never consider as legitimate such a barbaric act as tieing a person into a sack, burying them up to their waiste, and having the men in the community throw stones at the poor soul until they were dead. Americans prefer to have other people electrocute, shoot, asphyxiate, hang, or poison those condemned to death, and do it away from the public eye. After all, we, unlike the Afghans, are an advanced and civilized society.
May. 16th, 2004
12:28 pm - Memo to My Replacement
Memo to My Replacement
© Robert Fogelnest 2004
To: Noel
From: Bob
We are all looking forward to your arrival on the plane leaving Dubai at 7:10 am on 23 May. If possible, please also let me know when it is scheduled to arrive. I will be at the airport to meet you with a translator and a driver.
Here, in no particular order of importance, except the first, are some observations and suggestions which I hope will prove to be of value to you in getting oriented, hitting the ground running, and enjoying your experience in Kabul. I suggest that you also contact the others who have been here, especially Natalie, and have them share their perceptions and insights with you.
First, and most important, if you have not already done so, review the governing law. You should have been provided with copies of the Constitution of The Islamic Republic of Afghanistan and the Interim Criminal Code. If not, let me know immediately and we’ll get them to you. It is impossible to do the job as you would like to unless you are familiar with these two documents. Two readings will be enough to get you on board. You will be going back to them frequently.
All of the LAA lawyers are wonderful, you will like them. Be aware that they are, however, deficient in analytic and communication skills, and it can become frustrating. They tend to have difficulty in separating important facts from collateral matters, and in identifying controlling issues. It is clear that their legal training did not address matters regarding issue identification and analysis. In short, they do not think or express themselves in the way that we are used to having lawyers think and explain things.
This is something that can, and must, be overcome if the Afghan legal system is to progress, and if they are to provide the best representation possible under the circumstances. While there may be a tendency to dismiss their intellectual meandering as merely the Afghan way of doing things and not subject to modification, such an assumption is not well founded. Afghanistan recently sent a team of law students to participate in the Jessup International Moot Court Competition. This team was coached by, inter alia, ILF volunteer Mary Davis and competed with teams from all over the world. Moreover, they placed relatively well in the competition. One can only conclude, therefore, that the necessary skills can be taught. The LAA lawyers are smart, dedicated, highly motivated, and open to improvement. They should be provided with the tools they want and need. I have attempted to instill in them the need to state matters succinctly and stay on point. The efforts have met with some; albeit limited, success and I hope will be continued.
These analytic and communication problems are compounded by the quality of translation, which can also lead to frustration. While the translators try very hard, have improved every day that I have been here, and are all delightful to interact with, their skills are not all that you would wish for as a resource in doing legal work. Be prepared for it and teach them what you can. They, too, are glad for the help. It would be useful if you could bring along an inexpensive English language legal dictionary which they would like to have to help familiarize themselves with legal terminology.
Unfortunately, a substantial amount of time is spent by the lawyers traveling to various places in order to review files, meet with judges to determine when trials will be set, and file various documents. Much of this is, unfortunately, inherent in the system. In an attempt to alleviate the great wastes of time incurred, I instituted a system whereby the most junior lawyer, currently Ahadullah, is assigned the leg work tasks that need not be tended to by the more senior attorneys. This is working well and allows the senior lawyers to use their time more efficiently. It also has the beneficial affect of familiarizing Ahadullah with the system.
Some government offices have telephones available and I recommend that our lawyers attempt to develop a telephone list and accomplish as much as possible, e.g. determining trial dates, by telephone. I have not acted on this but suggest that you try. The officials will have to become comfortable with it and there may be some reluctance to deviate from old routines, but I believe that an attempt is worthwhile. This may entail greater telephone costs, which may be a problem, but it will be more than compensated for in the time the attorneys will save to deal with other matters.
The idea of developing precedent should be reinforced. In one case we were able to obtain a document from the Attorney General ordering the immediate release of a client who did not have the ability to pay a debt that had been ordered paid as part of his sentence. Before we secured his release, he had been kept in prison for an additional six months only because he had no money. The lawyers have been provided copies of that order and advised that it can be useful in similar cases. As there are no recorded judicial opinions, and the courts act without issuing written explanations for their actions, this is as close to case law as we can get under the current circumstances. The use and development of such precedent should be continued and encouraged.
Written sample motions have been developed and are available for use by the lawyers. There is more to be done in this area. The degree, to which these motions are being used, however, is questionable. There appears to be some reluctance on the part of the lawyers to present the courts with detailed arguments analyzing the particular relevant provisions of the Constitution or Code, and to press those arguments. The lawyers, rather, prefer to adhere to the established practice of writing and reading what is referred to as a “defense statement”. Because of translation problems, it is impossible for the international lawyer to review these defense statements before they are submitted. My impression is that the statements generally do not consist of much more than what would be a simple opening statement in an American trial. They present the defendant’s version of the events, and might include reference to relevant provisions of the code, but with no analysis or meaningful argument. This needs to be improved. One of our attorneys, Mr. Rahmani, is working on a project gathering those parts of Shari’a law which we can argue correspond or support provisions of the Constitution and The Code. This should be distributed to the other lawyers and incorporated into their arguments.
I have had difficulty in persuading the lawyers to fight for pretrial hearings with respect to the exclusion of evidence. Such references as are included in the defense statements are not asserted with the vigor that is warranted. This has improved since our Article 32 victory. Mr. Gran, our senior trail attorney, is now more open to pursuing such legal, rather than merely factual, arguments. He has agreed to do so with respect to a motion to suppress a statement in a pending case. Because of his stature, his acceptance of these procedures is of great value to the office and should be encouraged at every opportunity.
Similarly, the law provides that the results of investigation may not be relied upon as the exclusive basis for a judicial decision unless the defense was present when witness statements, and the like, were obtained. The results of investigation may, however, be used as “clues”; whatever that means. The failure of the defense to have a presence during an investigation triggers a need for the Saranwal to present live witnesses in Court. Trials rarely, if ever, have witnesses presented by either side. I have not seen one since I arrived. Even so, I not aware of a single case where the LAA lawyers forcefully argued for a dismissal following the presentation of a prosecution case which consisted solely of reading the results of the investigation. I have had difficulty in conveying the importance of vigorously asserting violations of the right of confrontation. Were this issue routinely and aggressively pursued, it could potentially result in many, otherwise unachievable, victories because the defense is rarely present when the witnesses are questioned, and it is unlikely that the Saranwal will produce witnesses in court. Some improvement in this area has occurred. Mr. Gran has agreed to pursue this issue in a pending case. Should he obtain a victory on these grounds, it will provide us with a form of precedent. I suggest that you continue to try to encourage greater use of this tactic.
Reports are important, and required for continued funding. I have developed a form for you to use which has been helpful to Natalie in preparing the required reports. There is also a monthly form for each lawyer. I have found it easiest and best to meet frequently with the lawyers, debrief them, discuss their cases, and maintain the forms as I do so. This assures accuracy and obviates the need to attempt to reconstruct events under pressure at the end of the month.
That ought to be enough for you to digest -- for now.
May. 15th, 2004
01:17 pm - More Pictures
Jake bin Bob did the job.
Click here: http://www.jakefogelnest.com/mullab
12:21 pm - Turning the Corner
Turning the Corner
© Robert Fogelnest 2004
I went to Air Azerbaijan today to arrange the tickets for my return home. I’ll leave Kabul on Friday, June 4 and fly to Baku, Azerbaijan where I will spend the evening then pick up a flight to Paris at 7:00 the following morning. I had never even heard of Baku a few months ago, and had only the vaguest idea that Azerbaijan was somewhere in Asia or, perhaps, Eastern Europe, and may have been part of the Soviet Union before it collapsed. I do know Paris a little. I have a nice small, inexpensive hotel near the Sorbonne that I like. I imagine that I’ll have dinner alone somewhere on Rue Descartes on Saturday evening, and hit a joint called Trois Mallet, which is a Parisian version of one of those Grove Street piano bars, but sans the gay guys. My friend Robert used to be a good connect in Paris, but he moved back to New York and is living in the Chelsea Hotel. And, anyway, when he’s not obsessively working on one of his bizarre, misogynistic oils, he’s amusing himself by spouting right wing, borderline-fascist rhetoric. His rants can be entertaining in Manhattan, but I prefer to listen to existentialist diatribes when in Paris. Just call me a traditionalist. In any event, it became quite clear to me that I am just three weeks, three days of traveling, several time zones and, two layovers away from Ray’s Famous Pizza in Greenwich Village.
I had a wonderful weekend (if you can call Thursday and Friday a weekend) of sleeping late; reading; doing the internet; lunches of , four cheese, thin crust. pizza under the trees at B’s Place; cruising the Bizarre Bazaar where I took some new photographs -- if Jake bin Bob ever posts them as he said he would, I'll give you the link -- and dinner with some new friends, including a German guy named Udo who was a prosecutor at the Rwanda Tribunal, and another from Zimbabwe, named Sipho, who did defense work in Timor. The expats here are all eccentric in they’re own way. What else would you expect from people who have chosen to travel halfway around the world to work in a country where the women are wrapped up like blue burritos? There is a tinge of colonialism (drivers, cooks, gross financial superiority, etc) but with a lot more respect for the locals and their customs than existed in The Raj. I have not once heard any of the expats refer to the Afghans, or Islam, in a racist or derogatory manner. The same can not be said for remarks involving American foreign policy and piling naked prisoners one atop the other.
As much as I miss New York, and Jake bin Bob, and late night TV, and first run movies, and breakfast at Joe, Jr’s, and Washington Square, and my own bed, and even my friend Robert’s insane rants, I feel a certain sadness about leaving Kabul. The people with whom I have been working are wonderful, warm and gracious. They are smart and dedicated. Real lawyers who are prepared to work hard to represent their clients and rebuild their severely damaged country. They are grateful for what little assistance I have been able to provide, and recognize their need for more knowledge.
Much of my sadness in leaving Kabul is that there is so much left to do here. There is the potential to make a real contribution. Something more important than helping another drug dealer lessen his sentence by providing lazy investigators with the ability to make more cases against other drug dealers who will then “cooperate’ and help them make even more cases. The legal system in Afghanistan is primitive, and grossly deficient by international standards. That’s in the capital. In many rural areas it is tribal, violent, and absolutely frightening. There is an opportunity each day to improve it, even if by only a small increment. Today our lawyers were confronted with a case where a man was tried, convicted, and sentenced without his lawyer being present. The appeals court, reviewing the matter de novo, thought that justice would be done by reducing his sentence by 25%. . They also mentioned that they were reluctant to reduce the sentence any further in a drug case (2 kilos of hash) because of the potential for international criticism. Maybe their analysis was correct. Most judges that I have been in front of in the United States seemed to be more concerned about the evils of weed than the right to counsel. In another case I had to explain to our lawyer that telling the client to monitor the case to see if an appeal was filed by the prosecutor was probably not the best policy, and that it was our obligation to do so. This was the way they had always done it in the few cases where the defendant actually had a defense lawyer at all. On the bright side, our client who was paralyzed by the torture he was subjected to (being left for days in water up to his knees) was finally moved from the prison to a hospital where he can stay for a couple of weeks until his trial.
Somehow, I just don’t think things are going to be quite as interesting, or meaningful, back in New York.
May. 12th, 2004
01:51 pm - Debtors Prison
Debtors Prison
© Robert Fogelnest 2004
I had an appointment with Ahadullah at 9 this morning. We have been trying to connect for several days so that we could discuss what he had been doing, and I could make notes for some annoying report that I have to prepare as a condition of the funding which pays his salary of $450.00 per month. Just as we were getting started, Mr. Gran came in to my office and told me that he wanted me to accompany him to visit the Attorney General of Afghanistan.
The day before I had persuaded Mr. Gran to seek relief for his client, Ghulam Sarwar, who was being held in prison because he was unable to pay back the guy he had ripped off for 6000 Afghanis (about $120.00) and 12,000 Pakistani Rupees (your guess is as good as mine). Ghulam had been sentenced to four months in prison and ordered to pay back the money he stole. He had done his time, but had, so far, spent an additional six month in the can because he couldn’t pay the money or find anyone to guaranty that the money would be paid. Mr. Gran had been dilly-dallying around for several months hoping to somehow find a guarantor, and because he really wasn’t comfortable with the key to Mr. Sarwar’s jail cell, which was Article 32(1) of the Constitution of the Islamic Republic of Afghanistan.
Article 32 (1) specifically states that “being in debt does not limit a person’s freedom or deprive him of his liberties.” Well, as far as I was concerned, that’s exactly what was happening to Ghulam Sarwar. Mr. Gran, however, didn’t believe that the Article 32(1) strategy could possibly work. He asked, “What about the victim. What will the government tell him when he asks for his money? Who will pay?”
“They’ll tell him he’s out of luck.” I answered, “They have to.” What it came down to was that Mr. Gran, who is a very devout and moral man, he had a sense that letting a thief out of jail, because he had spent the money that he had stolen, just somehow didn’t seem right. He couldn’t accept that even though he was personally troubled by the concept, he still might be able to convince someone else to go along with it. In other words, he had never heard of the straight face test. We talked about the moral conflict and I asked him if there was anything in the Koran or Shari’a law about this kind of ethical dilemma. His eyes lit up. “Yes” he told me, “Shari’a teaches that if a man owes a debt he should not be punished but, rather, be permitted to work and pay his debt.” Problem solved! “So we will quote Shari’a as well,” I said, “it is completely consistent with the Constitution.” We drafted the letter that afternoon.
With Zanzi driving, Mr. Gran, his seven year old grandson, Khalid, Asem the translator, and myself piled into the Surf SUV, we headed off through the dusty Kabul streets for the Attorney’s General’s Office. The first stop was to see Kalimullah Malikzai, the Deputy of the Attorney General of Afghanistan, who we needed to speak to in order to get to the boss. We left the kid and Zanzi in the car and went to Mr. Malikzai’s office. As we walked in I noticed that he was actually wearing a nice tie, the first I had seen on a local. Mr. Malikzai greeted Mr. Gran, who had been his law professor, very warmly. It seems as if at least half the people I have met in the Afghan justice system have been students of Mr. Gran.
Mr. Malikzai was also extremely gracious to me. We were offered tea, which must be accepted for fear of insult. Mr. Gran gave him the letter that we had prepared and explained the situation. Mr. Malikzai quickly agreed that we were correct, noted that we had quoted the Koran and Shari’a, and asked if we would like to see the Attorney General. As we left, and Mr. Malikzai put on his jacket, I noticed that in addition to a nice tie, he was wearing the first completely clean, well tailored, well fitting suit that I had seen on an Afghan since I arrived. It looked Italian. We all went to see his boss.
My first impression upon entering the office of, Abdul Mahmood, the Attorney General of Afghanistan, was that I had walked some Central Asian version of Don Corleone’s study, complete with capos. There were about seven or eight men sitting on sofas placed around the room looking simultaneously both powerful and subservient. Mahmood asked me to take a seat next him in an overstuffed chair. The furniture arrangement was the kind that one sees on CNN set up for meetings between heads of state. Mahmood himself is a gentle looking man with compassionate eyes, a warm smile, a salt and pepper beard, and those little weird teeth that look as if their owner had never lost his baby teeth. He was both elegant and charming. He effusively expressed his pleasure at meeting me and I responded as if I were Marco Polo being received at the Court of Kublai Khan. More tea was offered, and, of course, accepted. After a brief exchange of Salaam Alekems and other pleasantries, Mr. Malikzai handed Mahmood our letter and briefly explained the situation. Mr. Gran added but a few words and Mahmood interrupted him saying, “Of course you are correct, I see that you quoted the Koran and Shari’a.” He then inscribed an order directing the immediate release of Mr. Sarwar on our letter and handed it back to Mr. Gran We were told to take the letter to the office of Mr. Samadi, the Head Prosecutor of Kabul.
We retrieved the car, and the kid, and headed to Welayat, the complex where the jail, some justice system administrative buildings, and a court, are located. We were not allowed to bring the car beyond the gates because of security concerns involving the Minister of Interior, who was scheduled to come there later in the morning. Zanzi dropped us off outside the gate, kept the kid, and we went in to see Mr. Samadi. When we arrived at his office it was the same tea and pleasantries routine. That’s a lot of tea for me in one morning. Practicing law in Kabul can play hell with your kidneys.
After noting that we had quoted the Koran and Shari’a, Mr. Samadi, who seemed a good sort of guy prepared a letter to the director of Prisons, based upon Mahmood’s order handwritten on our letter. His male secretary either belongs to an Afghan ethnic group which I had never seen before, or was simply an unfortunate soul who looked as if he might have been the result of a wild night between an Australian bushman and a Neanderthal. In either event, the dude was stone ugly. And not very smart. It took close to an hour for our letter to be prepared, during which time more tea appeared. Then it was off to the Office of the Director of Prisons, Mr. Bakshi, to deliver the letter from Mr. Samadi, based on the order from Mr. Mahmood, written on our letter. But, I don’t know why she swallowed the fly, perhaps she’ll die.
Mr. Bakshi wasn’t there. We went back to our office for lunch. Mr. Gran returned to Samadi’s office after lunch, but having had enough tea for the day, I did not accompany him. Mr. Gran delivered the letter to Mr. Bakshi, who now needed to direct it to the warden of the prison where Ghulam Sarwar (remember him?) was being kept.
And that’s how we set the precedent for the proposition that there are no longer debtors’ prisons in Afghanistan. The thief, Ghulam Sarwar, ought to be out of prison in a day or two, inch Allah.
May. 10th, 2004
01:03 pm - Sami
Sami
© Robert Fogelnest 2004
Sami is one of our translators and performs other functions around the office such as working with the computers and typing up the defense statements which are filed by the lawyers. He is nineteen years old, educated, comes from Peshawar, from where he was sent by his father to live in Kabul for reasons of which I am not quite certain, presumably economic. His English is good, and in some ways he represents to me the new Afghanistan. He’s smart.
This morning I let Sami read yesterday’s journal entry on the Afghan Legal Mind He had been present as a translator during the meetings with Mr. Rahmani, Mr. Gran, and Nasima and understood what had happened. He also gave me the impression that he understood what I was trying to convey much better than those to whom my remarks were directed. I was curious what his response would be to what I had written. While he was reading, Sami stopped and questioned me on the meaning of the phrase, “I stopped that sucker dead.” I explained to him that sucker was a descriptive word and that I could have used “guy”, “dude”, “bastard” or any number of other descriptive terms in its place. I then explained the concept of stopping someone dead in their tracks. He quickly understood my explanations and made himself a note so that he would remember the phrase, and the proper use of it. I was glad that I had used the term “sucker” and not “sucka” because I have no idea how I might have explained the later, and the import of expressing it in that way. Luckily, American hip-hop has not yet achieved popularity in Kabul, and Sami is not yet ready for the complexities of ghetto-speak. And being a middle-aged white guy, I’m probably not the best one to explain them..
During our conversation I mentioned that Mr. Rahmani was probably a descendant of Amir Abdur Rahman, a 19th century Afghan military leader who was known for his attempts to unify the Afghan territories and his brutality, especially against the Hazara people whose independence was perceived as a severe threat to a central government. The Hazara are fairly easy to identify as they have a more oriental look than other Afghans, who often look Semitic. Some theorize that they are the direct descendants of Genghis Kahn’s 13th century Mongol invaders. Amir Abdur Rahman declared the Hazara infidels. He executed and deported many of them. He imprisoned their religious and tribal leaders, and replaced them with members of the Pashtun ethnic group, who were loyal to the king. As a result, the Hazara became an underclass in Afghanistan.
Sami, as are most, if not all, of the people I work with here, is Pashtun. As we were discussing the exploits of Mr. Rahmani’s putative ancestor, Sami told me that he hated the Hazara people. He said that they were all vicious and would do things like cut off women’s breasts. They were, he explained, Shi’a, and not Sunni, Muslims and could not be trusted.
“Oh, really,” I asked, “None of them?”
“That’s right, none of them.” Sami answered with conviction.
“Even the little kids?” I continued my questioning.
“Well ………” said Sami.
I explained to Sami that there were people in the United States who believed that all Muslims were evil, insane, religious fanatics who routinely stoned women to death and wanted to destroy western civilization. I told him that most of those people had no idea that there was any distinction between the Shi’a and Sunni branches of Islam, and if they did know, they didn’t care. “Those people are ignorant,” I told him, “and you hating the Shi’a is exactly the same kind of foolish thinking.”
Sami looked me right in the eye and said, “I guess you stopped me dead on that one.”
May. 9th, 2004
03:05 pm - The Afghan Legal Mind
The Afghan Legal Mind
© Robert Fogelnest 2004
New pictures at http://www.jakefogelnest.com/mullab
We have a new lawyer in the office. No, we haven’t canned the wet behind the ears, arrogant, whelp who decided to interject herself into Sher Ahmad’s trail after working in the office for three days. That’s an entirely different story and discussed below. Our new lawyer is Mr. Rahmani. He is in training for six months so that he might head up a new office that is be opened in Kunduz. Mr. Rahmani is a distinguished gentleman of about 65 years, and a Shari’a scholar, who has taken a leave of absence from his position as a prosecutor in Kunduz to serve a probationary period with our office in order to see how things will work out. I have my doubts.
Mr. Rahmani started with us yesterday. He has been reading the new Constitution, the new Criminal Code, and our sample motions, all of which are new to him. Early this morning he came to my office with our chief of staff, Khurram. Mr. Rahmani wanted to talk about what was wrong with our motions. The first point he wanted to make was that we had failed to provide the name the defendant’s father in our papers. This was very important, he told me. I asked why and he explained so the judges would know who we were talking about because in Afghanistan many people had the same name, and the judges would be confused if we didn’t. He said that if he were the judge he would not even accept the papers. I advised him that we have been doing it like this for over a year, none of the judges had complained, and I was fairly certain that among the many reasons for innocent people sitting in Afghan prisons, our failure to include the name of the defendant’s father constituted an extremely small percentage of the cases, if any. And I strongly doubted that there were any. I explained that the lawyers recognized their clients and had to go to the jail to retrieve them, along with an armed guard or two, assuming that handcuffs were available and they could travel to court. This took him fifteen minutes to accept -- reluctantly.
His next point was that it was inappropriate to discuss the content of the Articles of the Constitution and Code that we were citing. He felt strongly that a numeric reference to the particular provision was sufficient. After all, the judges know what the Constitution and Code mean, and it is not right for us to tell them – they will get angry. This led to my giving him a long explanation of the role of a criminal defense advocate, a concept which was apparently entirely new to him. “Mr. Rahmani,” I started, the judges don’t know the law. Some of them haven’t even seen the law. You hadn’t read it before you came here.” That stopped the sucker dead for a few seconds. I continued, “It is not about what’s written, it’s about what the words mean. Anybody can read the words, but our job is to interpret those words in the way most favorable to our client.” I have seen more comprehending looks on smacked out junkies than was evident in his eyes. He wasn’t getting it, and in that I had taken Imodium, instead of valium, this morning, I feared that this was going to get ugly. I explained that our job was to tell the judges what the law meant and construct arguments in support of out interpretation. Dead fish eyes looking back at me.
“The judge or the prosecutor may think that the law means one thing but we can argue that it means something else, more favorable to our client. This is our job.” I had his interest. “Let me give you an example” I suggested. “What color vest is Khurram wearing? Black with white checks, or white with black checks?” “Black with white checks!” he answered with all of the confidence of someone who actually knew what he was talking about. He went for it; this was going to be an easy cross. “Wrong! It’s white with black checks.” For the first time his eyes appeared as if they were in the head of a living creature, albeit, not necessarily a primate. I polished him off, “You see, two people can look at the exact same thing and interpret it differently.” I explained that this is why we discussed the sections of the law that we relied on, and not just gave the citation, so that we would have an opportunity to explain the matter with our interpretation of it and, having thought about it, be prepared to argue why our interpretation was the correct one.
I doubt if Mr. Rahmani was convinced, or even if he completely understood what I was saying, but he sort of got the idea. Our office pays a lot better than the prosecutor’s office, so he said that he would be willing to try our new unorthodox methods. It’s a start. I suggested to Mr. Rahmani that he stay close to Mr. Gran who is our senior trial attorney, also a man of about 65 years, a former professor, and scholar of Shari’a. Mr. Gran is, perhaps, the most distinguished and respected criminal defense lawyer in Kabul
In the afternoon, Mr. Gran, accompanied by Mr. Rahmani, came to my office. Mr. Gran was quite pleased with himself, and wanted to tell me about what he believed to a favorable development in a case. The client had committed a fraud. He was sentenced to 4 months in prison and to pay back the money he had stolen, about $250.00. He had already served his prison sentence but had been kept in jail for over seven additional months because he was unable to pay back the money. Mr. Gran was delighted because the Director of Prisons had summoned the Director of the prison in the provincial district from which the client came, and ordered him to take the client there and find a “guarantor”, that is, someone who would promise to pay the money, in order to secure the client’s release. Mr. Gran deemed this a great victory. I asked when this occurred, he told me 10 or 12 days ago. I asked if the client had been released yet, he told me he didn’t know. I asked him what he would do to check, he told me that next week he would write a letter to the prosecutor. I asked him, why he didn’t simply call the prison, he told me he didn’t know the number. I asked him how he could get the number, he told me he could ask the prosecutor or Director of Prisons, but that he had a meeting tomorrow and couldn’t do it. I asked him if the junior lawyer in the office could go get it for him, he told me that they probably wouldn’t give it to him, but if I wanted to send the young lawyer to try, that would be fine.
I explained to Mr. Gran that the problem had not been solved at all, and the only thing that happened was that the client had been moved to where he was less accessible to us. Mr. Gran disagreed. After all, the Director of Prisons had directed the Director of the provincial prison to find a guarantor for the pauper. Then we went around the block again with the same questions and answers as before. For an hour and a half. To be fair, in that time I also attempted to explain to Mr. Gran that the new Afghan Constitution had abolished debtors prison and that the client was still in jail only because he was poor. It didn’t matter how the debt arose, whether from a loan, a theft, or a court order. I explained that if the man could not raise the money, or find someone else to pay it, he might be kept in jail indefinitely and spend his life in prison over a $250.00 debt. I told him that this was an important issue that affected other clients, and this case was a good one to pursue. I told him for ninety minutes. I asked why he had not filed an appeal of that part of the sentence. I’m still not sure I understand what he said me in response, except that he didn’t want to do it. I told him I would write it for him. He still didn’t want to file it. Ultimately he acquiesced and agreed that if, after the young lawyer gets the phone number, and Mr. Gran calls the provincial prison, he learns that the client has still not been released -- that is, if he has not managed to blow the opportunity to bring a good test case, and can’t come up with another way to avoid doing so – he will file the appeal. Did I mention that Mr. Gran is, perhaps, the most distinguished and respected criminal defense lawyer in Kabul?
And what of the arrogant recent graduate who, after three days, deemed herself more qualified than the lawyer who prepared the case and decided to make arguments to the court after being told not to? She claimed that she had not been told before going to court that this was a bad thing to do. Khurram decided to send her for some training and give her another chance.
On the bright side, they upgraded the cable TV at the Park Residence, Chicago is on one of the channels, and I just heard Billy Flynn sing Razzle Dazzle. Now Billy, he’s my kinda lawyer.
May. 8th, 2004
12:33 pm - New Pictures
The best I can do is give you a new address for each set of pictures. Here's the most recent
http://www.jakefogelnest.com/mullab
12:15 pm - The Bizarre Bazaar & Beggars
The Bizarre Bazaar and Beggars
© Robert Fogelnest 2004
“Is there anything more astonishing than that a man should put the blame on his professional activity for not being able to perfect himself?”
Mulay al-‘Araby ad-Darqawi (19th Century Sufi Master)
I took yesterday off and spent the morning at the Bizarre Bazaar. I wore one of my Afghan scarves, which looks a lot like the kind Yassir Arafat wears and is good for many things such as covering your head when it rains or wiping the dust from your face when it does not rain. I, of course, wore it merely as an affectation, since wearing a beret in Kabul is even more ridiculous than wearing one in New York, and I like to have a good affectation for a morning adventure. I was armed with a small bottle of bubbles and my Chinese yo-yo which I use to amuse the street kids and divert the beggars.
The beggars come in several varieties. There are the destitute women in their burqas, often with small children in tow, who are widows or perhaps have been cast out from their homes by disgruntled husbands. I suspect that there is some central location near the bazaar where they go to make creative designs from snot and dirt on the faces of the children who travel with them. There are many deformed and maimed people in Kabul. They are sometimes transported in various kinds of vehicles including wheel barrows, sometimes they navigate themselves in primitive wheelchairs, and some are encountered sitting or crawling in the dust.
Kabul may well be the amputee capital of the world, primarily as a result of war injuries suffered during the Russian occupation, the devastating civil war following that occupation, or the landmines from both, many of which are still lying around. The amputees like to display their stumps. Some of the supplicants wave them at you. I have seen more stumps, and closer up, in the last month than in the entire preceding 57 years of my life. I’m all stumped out.
There are the very old and the very young. With few exceptions, every misery known to man can be found begging on the streets of Kabul. One exception is the talking to himself, raving, dribbling, pee stained, wild eyed, potentially violent, lunatic. I have only seen one of those since I arrived, but I have seen many wondering the streets, and riding the subways, of New York. It may be that all of the truly crazy Afghans have been sent to Manhattan, which would explain, at least in part, the taxi driver situation. The taxi drivers in Kabul are very nice, and they all speak the local language.
Children are among the most aggressive of the beggars. They just appear, as if they fell from the sky or came through from another dimension, alone or in groups of two or three. Polite refusals to give them money are mostly ignored and generally result in the kids following and tugging at you. They can be absolutely relentless. They will step in front of you and cry. They will tail you for blocks with their little hands pulling at your clothing. I once noticed a group of kids waiting outside of a shop while I looked around inside. Just as I exited the shop the cutest, smallest, and dirtiest of the group, a little girl about seven years old, began, right on cue, to wail as if her eye had just been plucked from her head. I’ve seen shows on the WB that weren’t as well scripted and rehearsed.
I try to keep a supply of two and five Afghani notes, worth 4¢ and 10¢ respectively, in my pocket for the beggars. When I do take one from my pocket to give to a person who has caught me at the right time, it can result in five kids appearing, as if they possessed baksheesh radar, and the same routine beginning all over again. It is often at this point that I will resort to the Chinese yo-yo and, with a flick of my wrist, produce a stream of paper which will sometimes end the assault. If that doesn’t achieve the desired result I might bark at one of them like a rabid dog. I am pleased to report that my extensive research has established, with a reasonable degree of scientific certainty, that a middle aged, bald, American with a big moustache, wearing a Yassir Arafat/Afghan scarf barking, is a proven method for discouraging juvenile beggars in Kabul..
As it was Friday, the Muslim holy day, I had expected the Bazaar to be relatively quiet, but it was as bustling as Soho on a sunny spring afternoon, or perhaps more like Times Square on New Years Eve -- but without the drunks, creeps, and lame-o tourists from Kansas City and Cleveland. There were, of course, people everywhere -- crisscrossing each others paths, dodging the anarchic animals and car traffic, and avoiding the mud and each other as best they could. It seemed as if the entire population of Afghanistan was engaged in buying and selling tomatoes, onions, eggplants, garlic, grains, potatoes, okra, and other kinds of attractive and very unattractive produce. There was one vendor who apparently specialized in rotten bananas. These was an area devoted to cheese sellers, and another for live fowl, including chickens, turkeys, and ducks. An entire street was devoted to birds, bird cages, and bird feed. There were stalls selling nuts and raisins, and others selling various kinds of tea. There is an area where the barbers gather and another for the money changers. You can find a man to repair your shoes and another to sell you a hat. The butchers hang their meat from hooks in the open air and put out baskets full of sheep heads. The flies of Kabul are fat and happy.
You can buy clothing, spices, electronic gadgets, bootlegged DVDs and CDs of American and Indian movies, brooms, dishes, stationary, soap, cloth, and jewelry. I saw dried poppy flowers with the poppy seeds in them, but no hashish or opium. I’m told that the drugs are there but are frowned upon by the police and no longer sold openly, or to foreigners. And there are rugs – lots of rugs. Big rugs, small rugs, wool rugs, silk rugs, new rugs, old rugs, and “antique” rugs that may or may not have come from a king’s palace. Rugs from Bokhara, Bamiyan, and Baluchistan. Rugs from Turkistan, Uzbekistan and Tajikistan. Rugs from Kandahar, Kunduz, and Herat. Prayer rugs and war rugs. There is enough square footage of carpet for sale in Kabul to cover the entire state of Montana, and significant parts of Idaho, with enough left over to put runners in all of the halls in Trump Tower. And, for you, because you are my friend, you can have this one for a very good price. Would you like tea?
I passed on the rugs, but I did buy one thing that caught my eye. There was a man who had a display of pieces of bronze colored, soft metal on which he would engrave whatever was asked. Most people in Afghanistan are illiterate and some use these engraved pieces of metal, as we might a rubber stamp, to apply a signature when one is needed. The engraver’s skill was impressive and the Dari script is beautiful. I asked Asem to write my name in Dari so that when you read what was written it would be pronounced, “Robert Fogelnest”. I selected an oval shaped piece about 2” across and, for a cost of 75 Afghanis ($1.50), the craftsman carved my name on it while I watched. At no extra charge he added a bit of decoration around my name. It was the highlight of my day.
May. 6th, 2004
02:03 pm - The Trial of Sher Amad
The Trial of Sher Amad
© Robert Fogelnest 2004
Sher Amad was charged with the theft of a carton of cooking oil valued at 600 Afghanis, or about $12.00. He had been in jail for just over two months while awaiting trial. The Welayat detention center where he was held is not so bad if one has the ability to pay the right amount of baksheesh to the right people. A detainee can obtain fresh fruit, clean water, a relatively clean place to sleep and, if the rumors are true and one is so disposed, will be left alone in the evenings with a license to sodomize the young boys who are incarcerated with the adults. Mr. Ahmad, however, had no ability to pay baksheesh and it was pretty rough for him.
His trial date was finally set and, as is the procedure in Kabul, his lawyer went to Welayat to collect Mr. Ahmad and the two armed guards that would accompany him with us in our new Surf SUV to the District 1 Court which is about a ten minute drive, assuming no traffic problems, from the jail. In addition to Sher Ahmad and the two armed guards, in our car there was an English fellow named Neal Gilmore who was working under the auspices of the International Bar Association assisting the Afghan government set up a bar association and standards for attorneys, who had come to see a trial; my translator, Asem; and myself. Sher Ahmad's lawyer, Amanat; Najiba, another lawyer from our office who had served as a judge; and Nasima, a young woman who had just graduated from the Law Faculty of Kabul University and had been working with us for two days, came by another vehicle and met us at the court.
The judge was warm and entirely gracious, a good man. While we waited for the prosecutor, he had an ancient assistant, who served as some kind of courtroom deputy and responded to a bell as if he were trained by Pavlov, bring us tea. The judge spoke a few words of English and we exchanged pleasantries. His appearance can only be described as rabbinical with Semitic features and a long flowing beard. Although the defense lawyer did not ask, the judge on his own told the guards to remove the prisoner’s handcuffs so that he would be more comfortable. I have been in more than one courtroom in New York where the judge showed less compassion. A picture of the judge can be found, along with several others, at:
http://www.jakefogelnest.com/bobkabul/b
The judge, along with the guards, the prosecutor, prisoners in the hallway, and apparently everyone else in Kabul, just loves to have his picture taken, especially when immediately shown the results in the digital camera. When we got back from court I had to send Wafi out to buy a new cartridge for the color printer in order to comply with the requests for prints of the photos. I didn’t want to refuse the judge, or the guys with the automatic weapons with whom I expected to be riding again sometime in the near future.
While we were waiting and the judge was chatting with Amanat, Asem leaned over to me and said, “The judge just mentioned that two months in jail for the theft of a carton of cooking oil seems like a long time.” Asem does not speak the best English and in his translations people always “mention” rather than “say,” but he is otherwise a sharp cookie and knew that this was a good sign. It was also a good sign when the judged announced that he would handle the case alone rather than wait for another judge to share the responsibility. I turned to Asem, and in the spirit of adding to his knowledge of English I mentioned to him, “This case is what we in New York call ‘wired.’”
But the case did not go forward. Someone came to the courtroom and told the judge that President Karzai required the presence of all of the judges in Kabul at the Supreme Court so that he could announce the terms of an amnesty he granted in honor of the birthday of The Prophet. Apparently, they don’t use fax machines in Kabul to communicate such matters. The judge explained the situation, apologized, and the trial was postponed until the next day. Later in the day I learned that the amnesty included allowing for the release of juveniles who were incarcerated, so I concluded that in the next few days the incidence of prison rape would decrease while the incidence of street muggings would rise. Everything’s a trade-off.
The next day we went back to Welayat and were told that we couldn’t go in. There was a problem. The night before a dozen people had made a jail break. Only ten were recaptured. Security was overwhelming. Amanat finally worked his way through this and was told that there would be a delay while they located a set of handcuffs, as their entire stock was currently in use. It was suggested that we could buy a set in a store across the street and I actually gave some thought to doing so until I remembered what happened the last time a bought handcuffs, but that’s a whole other story, and not a pretty one. While we waited I took pictures of the guards, who brought me a cup of tea. Tea is almost as popular here as are digital photographs.
We finally got to Court, distributed the pictures I had taken the day before, and the trial proceeded. The prosecutor read the results of the investigation from his file (Witnesses? We don’t need no stinkin’ witnesses.) Amanat read a prepared statement from his file. After a short discussion, the judge and the prosecutor started laughing. Asem mentioned that the judge pointed out a discrepancy in the times to the prosecutor and asked him how the defendant could leave his house at 6pm and have committed the theft at four pm. Unfortunately, we had not raised time travel as a defense.
While Amanat was responding to some argument by the prosecutor, Nasima, the recent graduate who had been working as a lawyer for three days, and had come to court to observe her first trial, motioned to get the attention of the judge. She asked to speak, and began to tell the judge that if he put the defendant in jail then his eight dependents would have to steal to support themselves and there would be eight thieves instead of just one. Yes, we were all stunned.
I restrained my urge to beat Nasima unmercifully, tie her in a sack, and have the rest of our lawyers stone her - - but when the judges broke to deliberate, I did send her to wait in the car like a child who had misbehaved in the supermarket. I took a cab back to the office for fear that I would lose it even though my friends know that I’m just an easy going, mild mannered, soul with a very well controlled temper, HA! . I haven’t seen her since, but I expect to do so on Saturday. We will have a long discussion about appropriate behavior for a wet behind the ears, untrained, barely competent, whelp and the sanctity of a trial lawyers control over the presentation of his case. If I don’t beat her unmercifully, tie her in a sack, and have the rest of our lawyers stone her. Unless, of course, she shows up carrying a fat sheep. See earlier journal entry on Tribal Law.
After deliberating for about 10 minutes, the judges found Sher Ahmad guilty and sentenced him to time served and 20 days of what is the equivalent of parole. A good disposition under the circumstances, even if no evidence was presented and the poor guy may not have been guilty.
Our office is closed on Thursday and Friday. Amanat said that he was going to work over his “weekend” to make sure that Sher Ahmad was released pursuant to the Court Order. This can sometimes be a problem. Amanat said that he had to -- he felt as if he were the one in jail. That’s what I call a real criminal defense lawyer.
12:40 am - To See Pictures
To see some photos of Kabul just click on the link below. It's worth the trip and you won't even have to endure a 14 hour layover in Baku, Azerbaijan:
http://www.jakefogelnest.com/bobkabul/b
May. 3rd, 2004
12:41 pm - Random Thoughts
© Robert Fogelnest 2004
My friend Tracy did it again. Here’s a link she sent me to a great article in the Guardian on American treatment of Iraqi prisoners: http://www.guardian.co.uk/Iraq/Stor
The other night I was to meet a couple of guys for dinner at a restaurant called B’s place which serves a terrific thin crust, four cheese pizza by any standard, not just Kabul cuisine. Thinking I would catch a ride back with one of them, I let my driver go on home. They both flaked on me for differing valid reasons, and I found myself in an unfamiliar part of Kabul without a ride. Not unsurprisingly, the people at the restaurant were extremely accommodating and had one of their staff give me a lift home. He was driving a ’62 VW Beetle like one I drove in college until it quit on me and I abandoned it on Dixie Highway in Miami. The lights weren’t functioning, nor the windshield wiper (that model only had one in the center). It would stall out when he stopped, and the window on my side wouldn’t roll down which was fine until it started pouring rain and the inside of the windshield began to fog up. The guy stopped twice to wipe off the windshield and got back in the car soaking wet each time. While I should have been scared poopless dodging Kabul traffic with no lights,no wipers, and a fogged windsheild, on a dark and rainy night, both he and I ended up laughing hysterically. Of course, he was simply crazy.
I learned a few new words of Dari today. Koonee (accent on the last syllable) means asshole. Shah means king. I have renamed my pal, Wafi, Koonee Shah which everyone in the office thinks is just the funniest thing they ever heard.
The other morning when I walked out of the Park Residence there were two guys in some kind of uniforms, and another in one of Uncle Notaste’s old double breasted jackets, standing right by the metal door, closely examining a high caliber automatic pistol. A Glock, I think. On another morning as I exited a guy came by with two rifles over his shoulder. I got him to let me take a photo.
I heard a good Kabul/Expat expression the other day, delivered without a trace of irony. Some guy was telling me, “It was a Cipro day”
I’m in the process of preparing some problems for a seminar being put on for training judges to use the new Constitution and Criminal Code. Here’s a sample.
Ruhullah bought a car from Faizi two years ago. He paid one half of the price when he received the car and promised to pay the balance in one month. When this debt was three months overdue Faizi went to Ruhullah and demanded that he either pay the money or return the car. Ruhullah refused to do either. Faizi complained to the Judicial Police who arrested Ruhullah. Ruhullah was questioned by the police and told them that he did buy the car from Faizi, but it had been destroyed in a fire and he had no money to pay what he owed. He was prosecuted for fraud, after the new Constitution and Interim Criminal Code came into effect, and was convicted. Ruhullah was sentenced to six months in prison and to pay Faizi the balance of the money owed for the car. The Saranwal did not appeal, nor did Ruhullah.
Ruhullah has served his six months but has not paid the money to Faizi, so the Director of the Prison will not release him. Ruhullah now has a lawyer who has come to court seeking his release. What should the Court do, and why?
Instructor’s Note. Article 32 (1) of the Afghanistan Constitution specifically provides that “being in debt does not limit a person’s freedom or deprive him of his personal liberties.” Therefore Ruhullah cannot be kept in prison merely because he is unable to pay the debt.
That’s right; there are now no more debtors’ prisons in Afghanistan! Now if we can just get the prosecutors, the defense lawyers, the judges, the police, the prisoners, and the Director of the Prison to understand this, all will be well.
May. 2nd, 2004
01:30 pm - Beware the Mongol Hordes
© Robert Fogelnest 2002
I was appalled, disgusted, and to be frank, somewhat frightened by the images I saw on CNN of abuses committed by American soldiers against Iraqi prisoners. I imagine that I should have expected as much from a bunch of ill trained National Guardsmen who thought they could make a few extra bucks in beer money by playing soldier one weekend a month, and ended up in the middle of a goddamned war, but it just didn’t occur to me. I guess I assumed that Americans weren’t disposed to commit the kinds of acts that I had just seen prosecuted as war crimes before the International Criminal Tribunal for the Former Yugoslavia in The Hague. That sort of thing, I thought, was limited to some lunatics in the Balkans irrationally harboring ancient hatreds, or a bunch of whacked out tribesmen in Rwanda. It’s obvious to me now that I severely underestimated my countrymen, and that Bush knew exactly what he was doing when he refused to join the International Criminal Court (and proceeded to extort other countries not to cooperate with that Court.)
I was appalled and disgusted on humanitarian grounds. The fear is much more personal. I’ve got my behind sitting behind a laptop in Afghanistan, a devoutly Islamic country. Now, followers of Islam throughout the world, even the most moderate, have hard evidence of the barbarism of the unbelievers. And rendering up the suckers who got caught as sacrificial lambs is not likely to dispel that perception, even were it to be resolved rapidly, which it won’t. Those who are opposed to what they perceive as American immorality and imperialism are likely to conclude that these abuses did not occur in isolation, but rather reflect a culture, at least among the American armed forces, which gives rise to, if not condones, such actions. I believe it, why shouldn’t they?
The image of that tower of naked bodies piled one on top of the other was particularly troubling. It was as if it had been committed at the hands of Ghenghs Khan and the Mongol Hordes who invaded Afghanistan in the early part of the 13th century and killed a million people in Kabul alone. In fact, it was, or something very similar.
As part of my preparation for traveling to Afghanistan I read a wonderful book by James A. Mitchner, entitled Caravans. Mitchner, the author of Hawaii, Texas, and Alaska, is famous for his novels laced with history. Caravans was first published in 1963, and is set in post-World War II Afghanistan. In the book the narrator relates his experience of coming across a walled caravanserai, a “gaunt, square, mud-walled sanctuary built around a central open space where animals of the caravan were sheltered,” and the caravan travelers could rest. Sort of an ancient Motel 6 in the middle of nowhere. While at this caravanserai the narrator notices a large circular column about twelve feet in diameter. He was told that during the Mongols destruction of Kandahar, to the south of Kabul, people sought refuge in the caravanserai. The refugees were found and taken prisoner by Ghenghis Khan. Mitchner relates their fate as follows:
“They just kept on laying the prisoners down, one layer on top of the other until they reached the roof. They didn’t kill a single person that day, the Mongols, but they kept the soldiers stationed with sticks to push back their tongues when they protruded. And while the pillar of people was still living – those that hadn’t been pressed to death – they called in masons to plaster over the whole affair. If you’d scrape away the plaster you’d find the skulls. But the government takes a dim view of scraping. It’s kind of a national monument. The Caravanserai of the Tongues."
No masonry, but close enough.
May. 1st, 2004
12:35 pm - BBC Afghanistan
© Robert Fogelnest 2004
I met a Brit in the Park Residence named Simon Broughton. He’s an expert on World Music, publishes a magazine about it in London, and works as a freelancer for the BBC. He came to Kabul to produce a live BBC broadcast in honor of the 10th anniversary of the BBC broadcasting a radio program here entitled New Home, New Life. The radio show is in a soap opera format and is designed to reach the villagers in remote areas and educate them about issues relevant to their lives. As most people here are illiterate, radio is an excellent educational tool. Kind Simon gave me a pass to the show.
As part of the guest package for the event which included a pocket calendar, a pen, and a CD of Afghan music, they gave us a comic book based on the radio series which they also distribute to the village scholars who can read at a comic book level. The edition they gave us contained summaries, in English, of several episodes of the show. The titles included: De-mining Activities; Measles; Dirt – the Root of Illness!; Treating Animal’s Wounds; Preventing Stomach Problems; Red Stones Are a Sign of Danger! (note: red stones are used to mark areas with landmines); Donating Blood is Not Harmful!; Sher Muhammed’s Fish Farm; Dangers of Drinking Unboiled Milk!; and my personal favorite, Treating Diarrhea. Top that, Larry David! There is also a recurring story line about a fellow named Nasim who has an affinity for smoking hashish. He has “red eyes” and “exhibits strange behavior.” He also “steals the household money” to support his habit. The Nasim episodes apparently constitute the Afghan version of Reefer Madness.
The BBC broadcast included traditional Afghan music, which seems to me most similar to Indian music, primarily because Afghan music also uses the tabla and I don’t know very much about Indian music. They also use a 16 stringed instrument called a rubab which is a kind of chubby lute made from mulberry wood, with a sound box covered in goat skin and a fingerboaqrd magnificently inlaid with mother-of-pearl. It’s a beautiful instrument and the skill of the players could send Clapton in for a session with his therapist. The fact that music can be played at all is grounds for celebration and serves as a symbol of progress and reconstruction. Not many years ago, under the Taliban, musical instruments were destroyed and all music, but for unaccompanied religious chants and songs praising the Taliban, was prohibited. Screw Buddy Holly, that was the real day the music died.
The show also included comedy sketches by the cast of New Home, New Life. The comedy had a strong physical component and, despite my inability to understand the language, I found myself laughing several times. In the interest of full disclosure, I feel obligated to confess that I also think that The Three Stooges were comic geniuses.
For the kids, the show included a couple of numbers by a plugged in band playing updated, electrified versions of traditional music. I assume that this was supposed to be the Afghan equivalent of White Stripes -- hip, happenin’ and now, dude. Their costuming, unfortunately, was reminiscent of the SNL sketch where Horatio Sanz plays an Albanian TV star. If you ever wondered where your sartorially challenged uncle’s bad suits went, I believe that I have the solved the mystery. And with respect to electrified updates of traditional Afghan music, to quote the brilliant and insightful critic Jay Sherman, whose reruns I have been watching recently on DVD, “It stinks!”
At the end of the performance, after they raffled off the two digital radios and some BBC suit who had flown in from London for the event said a few words of thanks to all concerned, they announced that there were buses outside to take the attendees to various parts of town. I had taken a cab to the concert and thought I would avail myself of the bus to get home. They neglected to mention that the buses were manned by Afghan bus drivers and the signs were in Dari. I, of course, in addition to speaking no Dari except “where are the toilets?" and "thank you”, had no idea in which part of the city the Park Residence was located. I had visions of finding myself lost in an unfamiliar part of Kabul, attempting to hail a cab, ending up in Pakistan, and my name appearing on one of those annoying under the picture streamers on CNN, but not as the latest replacement counsel for Michael Jackson.
No problem. An English speaking guy on one of the buses told the driver to wait while he got off the bus. The passengers were completely pleasant and seemed to be mildly amused at the dumb assed American who didn’t know where he wanted to go or what bus to take to get there. The Good Afghan/Samaritan stopped cars as they were leaving until, after just a few minutes, he found one headed toward the vicinity of The Park Residence and a driver who was willing to give me a lift. I told the driver, an Afghan guy who worked for BBC, and kept saying “cool”, that if the situation were reversed, he probably would have ended up sleeping on the sand at Jones Beach and wake up with no wallet. He said, “cool.”
Post Script - After reading this my friend, Tracy, sent me a link to an interesting article in The Guardian about New Home, New Life, including how it came into being and how it was tolerated by the Taliban. Check it out at http://www.guardian.co.uk/waronterror/s
Apr. 30th, 2004
04:00 am - Mosty Television
© Robert Fogelnest 2004
Yesterday was another day off. Actually, I am on a five day hiatus. Tuesday was a national holiday commemorating the expulsion of the Soviets. Our office is regularly closed on Thursday and Friday, and Saturday is the birthday of The Prophet. After a very short discussion with our chief of staff, Khurram, we decided to bag Wednesday and give everyone a five day vacation. Khurram went to visit relatives in Herat, which I am told is an incredible city near the Iranian border which produces magnificent silk rugs. Zanzi, the driver, and Sami, an interpreter and computer guy, went home to visit their families in Peshawar. I had wanted to drive there with Zanzi, but was absolutely forbidden to do so by Khurram because the road from Kabul to Peshawar passes through area which is not under government control and is occupied by bandits and the Taliban. It was feared that my presence in the car may have led to both of us being murdered. I didn’t really quarrel with this extremely reasonable prohibition. I am told that, upon obtaining a Pakistani visa, I can fly there and may do so sometime in the future.
After providing a bit of baksheesh to one of the staff here, I enjoyed a special breakfast of scrambled eggs and onions. It was well worth the 50 Afghanis ($1.00), but no substitute for corned beef hash, two over easy, onions in the home fries, rye toast, and a bottomless cup of coffee at Joe, Jr.’s at 12th and Sixth.
A reasonable compensation for MDS (Manhattan Deprivation Syndrome), however, is a trip to the Bizarre Bazaar. Wafi came by for me about 10:30 and we went off on a combination photo shoot/DVD player search. Both were successful. I got some great pictures and will upload them as soon as I work myself through the maze of doing so. There was no posting last night because I spent hours unsuccessfully trying to determine how to upload the pictures to the net so that they can be viewed through this journal. The effort was a complete failure and I am baffled. Any advice would be greatly appreciated.
More importantly, I can now cater to my addiction. The primary thing I miss when I’m away from home is my habit of sitting as if comatose in front of the TV for hours, especially in the evening. That deprivation has been alleviated by my brand new, made in Korea, AIWA DVD player. I’m anxiously awaiting a package from Jake bin Bob containing his upcoming Manhattan Cable Squirt TV 10 Year Retrospective, as well as a VH1 special he worked on with Barry Sobel, and selections from late night TV. For those who want to check out the more interesting and creative Fogelnest go to his web site www.jakefogelnest.com. His world is no less outrageous than Kabul.
After we copped the DVD player, like a junky in cold turkey I grabbed a cab and raced back to my room with my score to get off. En route to the Park Residence the cabby blew a red light. I turned to Wafi and said, “That asshole just ran a red light”, running the risk that the driver knew what the word “asshole” meant. Wafi, who is 22 years old, had a huge grin on his face. I asked him what he thought was so damn funny and he told me that he had never seen a red light before. There weren’t any in the country until three days ago. According to Wafi, (luckily the cabby didn’t speak English) the cab driver said that he had no intention of paying attention to the lights. It wasn’t “necessary.”
Back at the ranch we plugged in and dropped a Sex and The City disc into the DVD player. Wafi was enthralled. The opening of the show displayed views of Manhattan, including the architectural monstrosity formerly known as the Twin Towers. I pointed out to Wafi that they weren’t there anymore because of some crazy fucking Afghans. We both laughed and then I corrected myself and said I meant crazy fucking Saudis. The DVD displayed English subtitles which was a great tool for Wafi with his English. His ability is pretty good anyway, way better than that of the primary translator in the office, but that’s a whole other ongoing saga.
Wafi was intrigued both with the look and culture of New York and, especially, by the behaviors of the characters. It was as exotic and strange to him as Kabul is to me, and equally difficult to process and comprehend. Afghanistan is a very sexually repressed and oppressive society, especially for women. Please note: Understatement of the Month. A woman, even from the educated classes, would never live away from her family, very few men would, before marriage. No Afghan would ever enjoy the sexual freedom of Carrie Bradshaw, or even of Charlotte the Straight and Creepy, nor own nearly as many shoes. And in some parts of Afghanistan outside of the capital, Samantha would have been stoned to death long ago. Now that I think of it, she may well have been lynched in parts of Alabama.
At one point while when we had just completed our third or fourth episode, Wafi asked if he could borrow one of the scarves I had bought to place down so he could pray. He went to a corner of the room, put down the scarf and passed a few minutes. I occupied myself on the computer while he was doing this. I don’t know if S&TC was a precipitating factor and didn’t ask. I did ask how he knew which way to face and he told me that if you live in Kabul, you just know.
That's all for now. I'm gonna pop in kill Bill Vol. II.
Apr. 28th, 2004
01:30 pm - Kabul Nightlife
© Robert Fogelnest 2004
There’s not a lot to do in Kabul after dinner. There is no night life once you’ve had your coffee, and watching the international news on CNN and the BBC about the bloodbath in Iraq, the 1ten new semi-countries in the EU, and Ben Brafman getting bounced by Michael Jackson, can get rather tedious unless you are a Michael Jackson fan, which I’m not. I suppose that the Bollywood movies would be a lot more interesting if I could understand the language, but I can’t even identify it, and the choreography is starting to remind me of some bad drug reactions that I witnessed in the 60’s. And Fran Drescher, even in German, is still too much like women I grew up with to hold my attention for long without generating bad thoughts. Very bad thoughts.
The internet, of course, is wonderful, but my chair sucks, my back is beginning to ache, and I really don’t want to gather cookies on this computer which would provide the next user with unlimited opportunities to Buy Viagra Online or View Live Teen Web Cams, so that limits significantly the number of sites I would ordinarily check out. And then I thought – DVDs!
This laptop doesn’t have a DVD drive but I remembered that I had come across an external player in my office desk the other day. I had Wafi bring it by this afternoon. We had the day off because of some holiday. The Afghans like holidays. In any event, Wafi and I went out to buy DVDs. There is a great selection here and very low prices. In the mood for a violent snuff movie? The Passion of Christ is available for $2.00. Screw Mel Gibson. He really doesn’t need a couple of extra Afghanis, now does he? Do you like Tarantino? Kill Bill Vol. II also $2.00. I paid $10.00 to see Vol. I at Union Square so I guess we’re even, Quentin. A three disc set of The Critic - $2.00. Hey, it’s a cartoon. Same of Sex and The City - also $2.00, also a cartoon. Jackass was only a buck – overpriced.
I brought my big score back to the Park Residence compound, delighted and excited. My evening was planned. My amusement assured. I was a happy man. I had the closest thing available to real television (i.e. The Daily Show, Letterman, Conan, Robin Byrd – in that order, usually). I plugged in. I loaded up. I double clicked. ERROR!!!! I had a damn CD player. My new, cheap, mind saving DVDs were useless, sitting there like a window full of candy in a closed shop, taunting me with their unavailability.
Tomorrow, another holiday, I’m off to the bizarre bazaar in search of an external DVD player for the laptop. Uma Thurman here I come.
Apr. 27th, 2004
01:12 pm - Pre-Trial Motions
© Robert Fogelnest 2004
One of my responsibilities here is to draft sample form motions for use by the staff lawyers. This is not something in which they have any training, and they have not yet developed the skills to do it themselves. The concept of pre-trial motions is entirely new to the Afghan legal system. A rule requiring the exclusion of illegally obtained evidence appeared for the first time in the new Interim Criminal Code which has only been in effect for a few months. Many of the prosecutors and judges have not even seen it. To my knowledge there is yet to be a pre-trial hearing in the country. The questions we raise are simply dealt with, if at all, as part of the trial. I am unaware of an instance where the judges have said that they would disregard illegally obtained evidence. Unlike in New York, where the D.A. and judge at least pretend to believe the cops before the judge rules against the defendant, here they just ignore the issue and the judge doesn’t even bother ruling on it. Don’t have to - there are no written opinions stating the reasons for a decision and the appellate courts merely provide de novo review, and sometimes a lower sentence, using the same methods.
Last week one of our lawyers, Ruhualla, was arguing for the exclusion of an illegally obtained confession. The Saranwal (prosecutor) responded, “What are these rules? Who wrote them?” Why should anybody consider this?” His questions reflected the legal tradition here which simply requires that those who have broken the law, or sinned, be punished. A trial is about whether the person is in fact guilty, and, if so, what the punishment should be. Procedures are loose and certainly not designed to protect any “rights” of the accused person. With respect to sentencing, rehabilitation simply ain’t part of the program. Concepts involving the Rule of Law and the need to deter illegal police conduct are totally foreign to the Afghan legal experience. Before the Taliban they lived under the Soviets, and before that for 30 years under a cross between anarchy and order imposed by Warlords who weren’t terribly concerned about individual rights. It’s kind of like the Southern District of Florida but with shabbier suits, cooler hats, and tea. And you can smoke in the building.
In any event, Ruhuallah’s response was a classic. He said, “It doesn’t matter who wrote it. President Karzai signed it.” or, in other words, the law is the law, whether you like it or not. This guy is no dummy. Parenthetically, the statute was written by Italians who have been designated to deal with such things by the United Nations. I received a call today from the Italian embassy. They want to meet with me to discuss a proposal to participate in a training session for the prosecutors and judges about the new Constitution and Interim Criminal Code. My portion would be, “What You Can Expect From Defense Counsel.” I expect that they’ll be rather surprised.
Apr. 26th, 2004
01:52 pm - The Kalashnikov Kid & Tribal Law
Today I attended another trial. The Afghan lawyer, Ruhuallah, my translator, Asem, and myself, along with our driver, who we call Zanzibar because his name is otherwise unpronouncable, all piled into the right hand drive Toyota Corolla with the paper sign on the window which reads LAA and stands for Legal Aid Afghanistan. We worked our way through the anarchic morning traffic caused by the Minister of Something or Other who apparently sends out armed troops to block all traffic and clear the streets from his home to his office while everyone else waits in the dust. We finally were able to get to the prison where we picked up the manacled client and a pimply faced teenaged guard in a way too large heavy wool uniform carrying a Kalashnikov automatic rifle. We all piled into the Toyota with me by one rear window seat, the client by the other door (unlocked), and the Kalashnikov Kid in the middle. Had we wanted to bust out the client it was a done deal. Any of the rest of us could have taken out the guard before he would have been able to even move his weapon the way we had him placed. This, however, was not the plan of the day and off we went merrily off to the First Kabul District Courthouse for the trial. After the conviction (3 years for stealing about $600.00) our driver was not available, so we had to hail a cab. The Afghan lawyer, the translator, the prisoner (still in manacles), the Kalashnikov Kid, and me in a tie and black cashmere blazer, all stood on a funky Kabul street corner and hailed a taxi to return the client and his guard to the prison, and us to our office for a lunch of potatoes.
After lunch I was trying to reorganize the files on the office computer. I came across one which was a preliminary study of the tribal and customary laws in the northern part of Afghanistan. The lack of government control still renders it impossible to enforce the provisions of the new Constitution and interim criminal code there and they are still doing things much as they did in the 9th century.
The penalties for crimes vary from area to area. In one district the penalty for murder is that the murderer has to pay a fine, called ‘khon baha’, but if he is unable to pay from his own assets then his family must provide a girl to marry a member of the family of the person that he murdered. The reasoning is that the marriage between the two families will help to end the enmity between them. This may actually hold some validity, and serve some social utility, in a tribal culture where using women as property is not considered politically incorrect and violent retribution is a constant potential. While it is barely comprehensible to our way of thinking, it is interesting to consider that if we followed this custom in the United States, Roman Polanski may have ended up married to Charlie Manson’s sister, O.J. Simpson’s daughter could now be attending Hollywood Hills Hadassah meetings as Mrs. Goldman, and nearly everybody in Brooklyn would be related by marriage to Sammy Gravano.
Among the Tajiks and Pashtuns of the north, if a girl is taken away by force the girl must marry her abductor in order to preserve the honor of her family. Her spousal preferences are not considered and, unless she favors really aggressive, but poorly socialized, men of action, the abductee may find herself in an extremely unhappy union. If the man has forced himself upon her sexually he must also pay money to her family. The Turcoman and Uzbeks, however, have a slightly different method of dealing with such situations. Money is not required in the event of a sexual violation. They just rape the guy in retribution. The report did not indicate how it was decided who had the responsibility (opportunity?) to execute this part of the sentence. Here’s a couple of interesting cases I found in the report:
Case #1, Murder. There was a dispute between the Aimaq and Larkwabi tribes arising out of a killing between armed men on both sides. The perpetrators escaped and eight years later came back. The family of the victim collected signatures from the villagers and gave a letter to the village council saying that they wanted the matter addressed. The council gathered, consisting of eight elders and two mullahs. They decided that the perpetrator’s family had to give the family of the victim six lots of 100 square meters of land and 21 sheep.
Case #2, Kidnapping for Ransom. A respected man in his tribe kidnapped someone and asked for ransom. The tribal leaders intervened, ordered the ransom requested reduced, the victim freed, and the perpetrator to leave the district.
Nanawati is part of many sentences. It is a customary way for making an apology and eliminating bad blood, and can take different forms. In the case of murder, the murderer’s relatives may help carry the victim’s body to the gravesite and a member of the murderer’s family may lie in the grave. This strikes me as somewhat equivalent to the traditional Mob funeral. The family member is, however, allowed to get out of the grave before the actual burial and does not run the risk of later being found, somewhere in New Jersey, stuffed into a trash bag in the trunk of a Lincoln Town Car.
The Nanawati for the taking of a person’s weapons by force during a fight requires a visit to the victim’s house with a sheep. Nanawati for the murder and abduction of a married woman requires the giving of four copies of the Holy Koran, four women and a fat sheep. Apparently skinny sheep are permitted in less serious cases and there are no weight specifications for the women. In any event, taking the sheep is considered a sign of submission and is mandatory.
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