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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
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