Tea

“Tea,” he said.  “Tea is everything here.  If you go to someone’s home and they do not offer you tea, they’ve offered you nothing.  It matters not whether they’ve offered many other things; without tea, they’ve shown no hospitality.”

I thought about this for a while as I watched the tea being handed to others in the room.  Outside I could hear the hustle and bustle of Kabul.  The traffic cops repeatedly blowing a whistle, cars seeming to answer with their horns.  The rampant poverty lay just outside and the conversation was one of war, but there was tea.  It is really all quite civilized I thought.  Perhaps it is because it is so very British.  Or perhaps it is just difficult to argue with someone who offers tea. 

As pleasantries are exchanged, you first hear the rattle of a cup on a saucer.  It isn’t fancy, but it does look like fine china.  Sparkling white, perhaps with a floral pattern around the rim.  The cup and saucer are thin, almost like a set used by a little girl.  But it’s not the splendor of the tea set that counts; it is the tea itself, what it represents.  The gurgling sound of hot tea falls from a pot into a cup.  Eyes flicker toward the sound.  A sweet expression of satisfaction flashes across faces; they know they are truly being welcomed.  A small sweet is placed beside the cup of steaming tea; sugar or chocolate depending upon where in the country the tea is being served.  It isn’t necessary, but, again, demonstrates the hospitality being offered.  As you sip the tea, you can’t help but think you’re making a friend.

When Afghans come to visit an American office, tea is not always offered.  Thus, according to my friend, we’ve not shown hospitality.  Is it that we think it too quaint or backward?  Or have we simply forgotten our manners?   I reflected on this one day as I eavesdropped on two people talking about extreme differences between Afghans and Americans.  Are we really that different?  Tea.  It was the tea.  We’re really not that different I thought.

As I thought of this more and more, I began to realize that, culturally, there are similarities between Afghanistan and the American South (my home).  If you come to my home, you’ll be offered a drink as well.  And you’ll be offered tea in the first instance, although it will be of the iced variety.  You’ll also be offered anything else I have to drink (for those that don’t like tea) and likely something to eat as well.  I have yet to come to a fellow Southerner’s home and not be offered something (other places in the US may do this, but I speak only of my home).  On your second visit, you are encouraged to help yourself.  It is hospitality; essentially the same as the Afghans do.

Bt the similarities do not end there.  There is the deep-seated impact of religion.  Sure, the religious beliefs are different and some practices of Afghans and Southerners even objectionable to the other.  But there is no doubt that religion plays a prominent role in both places.  There is also a under current of governmental mistrust.  The independent streak among the people of both places admits of some governmental need, but not too much.  Finally, there is a sense of regional pride.  Afghans may be poor, but they are proud of their history.  It runs deep in the South too (there is also a similarity between Afghan poppy farmers and Appalachian moonshiners, but I’ll leave that for another time).

On the surface, we all seem so different.  We understand that at some base level, we’re all the same.  In other words, we all want a better life (however defined) for our kids, etc.  But some similarities aren’t really that deep.  All you have to do is look for them because they are there.  For me, it was the tea.

The Root Problem

The yellow and blue Russian MI-8 helicopter landed gently on the gravel covered landing zone just east of Jalalabad on Forward Operating Base (FOB) Finley-Shields.  It had been a spectacular ride.  Flying over Afghanistan in a helicopter allows one to see the true beauty and ruggedness of this country.  From Kabul to Jalalabad, the land provides evidence of the “water is life” saying.  Parched brown, desert-like terrain is interspersed with jagged mountains lifting into the sky like earth torn up by a giant tilling machine.  Only here it isn’t tilling because that would indicate cultivation of crops – life.    While mountains are ubiquitous, cultivated land is much more infrequent.  It exists in scattered strips along rivers in open, airy valleys.  The towns and villages appear as if they are clinging to the river, desperately trying to hang on for life.  The landscape almost resembles a giant striped scarf of the variety worn by women here.  Large, wide stripes of brown are broken by a pattern of two thin green stripes divided by an even thinner blue line.  Yes, terrain very much controls life here.

strips of life 

On touching down, I grabbed my backpack and stepped gingerly down the narrow stairs.  Thirty-five pounds of body armor, a pack and two weapons makes for difficult movement in narrow confines.  Walking through the rotor blast of hot air, I saw a multitude of Mine Resistant Ambush Protected, or MRAP, vehicles lining the landing zone.  Security is a serious business here; in Kabul armored Toyota Landcruisers are sufficient.  As I exit the rotor blast I realize that the hot air isn’t from the helicopter, it’s simply the weather here – much hotter than Kabul this time of year.  As no one is there waiting for me, I ground my gear in a makeshift gazebo just off the landing zone and call my contact.  It was only after I hung up that I heard the gunfire. 

Oh crap, I thought (well, not really “crap,” but I’m trying to keep this G-rated), this isn’t good.  For about three seconds, I almost needed an underwear change.  Then I realized that all the shooting sounded alike.  The next thing I figured out was that it was the sound of M-9 gunfire (M-9s are the pistols Americans are issued and, yes, weapons do make distinctive sounds).  It would’ve been nice if I had been told about the pistol range before I got here! 

My sponsor soon showed up and took me to my room.  A guy away from the FOB on business for a few days was nice enough to loan me his room while he was gone.  Had he not been so gracious, I would’ve stayed in a wooden hooch (looks like a tent) with several other folks using a communal bathroom/shower in another building.  That really isn’t so bad, but it’s always nicer to have your own room.  As it turned out, my room had a bit of history behind it.  Apparently, the base was once a Soviet resort area for use while their soldiers were down here fighting the Mujahedeen.  After they were defeated, the Taliban used it.  It was during this time that Gulbuddin Hakmetyar slept in my room.  Hakmetyar is an unsavory character to say the least.  He continues to command a terrorist group that fights against Americans and other coalition forces.

During the course of my time at FOB Finley-Shields, I was able to meet with the Chief Prosecutor for the Afghan Army and Police, the Head of the Nangarhar Legal Aid Office, the Chief of the Huquq, and the Nangarhar representive of the International Legal Fund.  

Head of Legal Aid (left) and Chief of Huquq

I also spent quite a bit of time talking to the Department of State’s Senior Rule of Law advisor (my sponsor) and the Rule of Law Field Force-Afghanistan (ROLFF-A) team, who work quite extensively together.  These guys are on the front lines of the international rule of law effort here (I am their reach-back/support for any and all issues).  They provide tactical advice and assistance in circumstances of dwindling budgets and ultra-short time constraints.  Washington wants it done fast and cheap, but you can’t have it both ways.  Rule of law is a generational project and it takes money to do it right.  This is not to say that money can’t be spent wisely; in fact simply throwing money at the problem with no real strategic thinking simply exacerbates the problem by generating dependency in lieu of sustainability (i.e. making sure the Afghans can maintain what we start).  For the past several years the focus has been infrastructure and materiel rather than a simple, workable justice system; Americans want the Porsche when a Corolla will do.

The main issue is dependency, a systemic problem.  However, dependency is a problem of American making.  For too long, perhaps in an effort to adhere to popular COIN strategy of “winning hearts and minds,” the US has been too willing to simply build infrastructure and provide materiel.   The result is that Afghans will not “make do” or come up with innovative solutions to problems.  The default solution is American monetary assistance.  Our method of conducting business, even today, contributes to this culture of dependency.  We have confused the roles of benefactor and advisor.  Our rule of law effort is supposed to be one of advising; assisting the Afghans in applying Afghan legal solutions to Afghan legal problems while keeping in mind international obligations and Afghan Constitutional structure.

An advisor should be embedded with those he advises or at least able to visit them on a continuing basis.  For example, Nangarhar province has courts in each of its 22 districts and at least 3 in the provincial capital city.  However, because of transportation issues, the Rule of Law Team can only make 2-4 trips per week.  Thus, even at maximum trips per week, the Team can only visit a court approximately once a month.  This simply is not enough to build the trust necessary to properly advise judges, lawyers, and court administrators.  Moreover, it leaves little time for public outreach to get “buy in” from the local community. 

Sure, the local legal professional can come to the FOB, but this places us in a benefactor role.  One goes to a benefactor to ask for more “stuff,” one receives a visit from an advisor.  Don’t mistake the importance of perception.  Organic transportation for the team would resolve this problem and be cheaper in the long run.

Hope

Over the past two days, I had the opportunity to interview three potential candidates for a State Department program that brings Afghans to the US to learn about our country and government.  I spoke with two men and one woman.  I was unsure if the female would show up as I was told that she had to get her family's permission to apply since it would involve her traveling without a male family member as an escort.  This was a little disheartening, but it all worked out and I spoke with her today.

As part of the interview process, I asked the typical questions, but one caused a pause from her.  I asked where she saw herself in the next five to ten years.  As she struggled to come up with an answer, an Afghan colleague from my office interrupted.  He said that it was difficult for Afghans to look that far into the future.  "You see," he said, "we do not know what to expect, we do not know whether we'll live like this or worse.  We can only plan for short periods of time."  As he spoke, my guest nodded her head in agreement.

However, I'm not sure this is entirely true as I saw a glimmer of hope in her response to my next question.  I asked why she became a lawyer.  She told me that her family expected her to be a doctor, but she had no interest in that profession.  Some of her siblings were doctors, so her choice not to pursue that career was not welcomed by her family.  She continued the story by saying that she explained her interest in spite of the continued objections.  Finally, she told them "A doctor treats a patient, a lawyer treats a country."  Afghanistan is certainly a country suffering from sickness; lawyers like her can heal it.

A Woman on the High Court?

بسم الله الرحمن الرحیم (In the name of God, the most merciful, the most compassionate).  As each speaker before the legislative committee began his presentation with these words, it was readily apparent that religion would play a large role in the decision-making process.  The committee, composed of approximately 20 women and 1 man, all legislators in the Wolesi Jirga, or lower house of the Afghan legislature, were considering whether a female should be appointed to the Supreme Court.  As a fraternity brother of mine astutely recognized, this took the United States 189 years; the Afghans were trying to do it in year 6 of their young republic.

 

All speakers, both those for and against the proposal, agreed that Article 22 of the Afghan Constitution mandated non-discrimination among Afghan citizens and that this included a prohibition on gender discrimination.  However, the question quickly devolved into arguments regarding whether Islamic law permitted a woman to assume such a lofty position as Supreme Court Justice.  The Afghans follow the Hanafi school of Islamic Jurisprudence, the largest in Islam.  It is considered one of the more conservative schools of Islamic legal thought.

In hearing the arguments in favor of a female appointment to the Court, I was not surprised to hear arguments that the Quran posed no prohibition on the proposal; after all, if it was clearly prohibited we wouldn’t be there arguing the point, right?  A religious scholar argued that the western concept of gender equality (his words not mine) is not proscribed by the Quran, Sunnah, or Hadith.  Of course, the Quran is the holy scripture of Islam, something most of us are familiar with given the recent actions of some jackass “preacher” in Florida (one of our bases was attacked as a result of that episode and several UN workers died in Mazar-e Sharif).

Sunnah refers to the words and living habits of the prophet, Mohammad.  Basically, it includes anything he said, did, or showed approval/disapproval regarding.  Hadith is similar in the sense that it consists of narratives of what the Prophet said as passed down through followers of Mohammad.  The exact differences between the two are disputed within Islamic jurisprudence, but the varying schools of Islamic jurisprudence mainly differ on the validity of particular Hadiths.  Thus, the Hanafi school may reach a different conclusion on a particular issue than other schools of thought.

Aside from demonstrating the compatibility of gender equality with Islamic legal thought, the supporters also pointed to Afghanistan’s republican form of government.  I don’t know why, but I was surprised to hear this argument -pleasantly so, but surprised nonetheless.  Conceding that the Afghan Constitution did not require a quota for women, the argument was that the Constitution required consideration of women’s issues.  Moreover, female representation would enhance rule of law since it would demonstrate to half the population that the system understood their issues.  This, it was hoped, would bring legitimacy from half the population to a system that desperately needs it.

The opposition seized on this concession by supporters that Islamic law controlled the issue.  On this, the opponents are absolutely correct as Article 3 of the Constitution says that no law can contravene Islamic law.  The first opponent, a religious scholar, argued that justice is paramount in Islam, as it is in the Constitution, but justice does not necessarily imply equality.  The Quran gives women more rights than men, he said, but there are differences.  These differences lay in a woman’s emotional ability (his words not mine; damn, I don’t need half my readers pissed at me).  He felt that the inability of a woman to control her emotions prevented her from issuing fatwas and that such emotive aspects would cloud her judgment.   He said that although he may sound like Taliban, his research proves he’s right.  I immediately thought that the least of his concerns would be an association with Taliban thought if my wife or some of my female friends from law school were in the room.

The next guy, the head legal advisor to the Wolesi Jirga, also came out against the proposal for many of the same reasons the first guy did.  He began by saying that “the standard for us is not western standards, it is Islam.”  Fair enough I thought, but equality is a natural, God-given right (my opinion, google natural rights and you’ll see what I mean).  He then called out the first speaker in support of the proposal in a classic ad hominem attack (really, a lawyer did this?).  The first guy defended himself, but head legal advisor stood his ground and said that the first guy should relearn Islam so he could be a good Muslim.  “I did not accuse you of blasphemy,” he said, but of committing a sin.”  Wow, shades of neo-con accusations of un-Americanism toward Iraq war opponents. 

Given this forceful argument in opposition to adding a female Supreme Court Justice, I couldn’t help but notice the irony in the fact that the nearly all female committee had their tea served by men.  

Latent Dependency

A Brit, Italian, Afghan, and American were floating in a lifeboat taking on water.  “We have to lighten the load,” the American yelled.  The Brit immediately threw his trench coat into the ocean.  “It’s okay, Chaps, I can get another,” he said.  On seeing this, the Italian took off his leather coat and threw it into the water.  “It’s okay,” he said, “Milano has plenty.”  The Afghan stood up walked over to the American and pushed him overboard.  On hearing the protests of the Brit and Italian, he said, “It’s okay, Afghanistan has plenty; I can get another.”

Anyone of any consequence in Afghanistan has an American or rather, an American with money.  If you are a high level official at some Afghan governmental organization and you need something, say a few armored Landcruisers or a new building in Herat, you ask an American.  If the first one says no, you move to the next and eventually you get what you want.  This permeates every level of government and there is, apparently, plenty of money. 

During fiscal years 2010 and 2011, as of this writing, nearly three-quarters of a billion dollars have been spent through the Commander’s Emergency Response Program (CERP).  US commanders at the local level spend these funds (they are the local leader’s American).  This, however, is the tip of the iceberg.  We American tend to do things on a grand style and, when it comes to spending money, we are certainly no different.  And we often spend at cross-purposes.  Due to insufficient coordination, one US agency almost broke ground on a multi-million dollar infrastructure project before realizing that another agency had already completed the construction.  You can’t blame the Afghan government for taking everything the Americans are willing to give.

The problem here isn’t that Afghans are in take mode; hell, who wouldn’t be with all this money floating around.  I’m beginning to think I should start my own country and then apply for US funds to combat Al Qaeda.  It’s better than winning the lottery.  Anyway, the problem isn’t the expenditure of money; it’s what that expenditure leads to that is the real problem in the long term for Afghanistan.  This is best illustrated by the meeting I attended today.

As the first presenter began, I realized that I was listening to an English translation of a Dari presentation of English PowerPoint slides.  Huh?  The Afghan presenter was speaking, in his own language of course, to an audience of Afghans but the slides were in English.  While this may seem insignificant, it is representative of a deeper problem.  The Afghan presenter didn’t create those slides; he would have done so in Dari since that is the language of his audience (the International Community in the room were mere observers, hence the translator speaking in our ear).  Americans, emphasizing American priorities, created those slides. 

Where are the Afghan priorities?  Did anyone ask for the Afghan’s opinion?  Or do we just assume we know better as if our ten years observation of Afghan cultural priorities and concerns somehow trump their centuries of experience?  Of course, Afghanistan is rebuilding after more than 30 years of continual warfare.  Indeed, the current generation has little to no experience in running a representative government and their history certainly provides no support for such an endeavor.  But how will they learn if we continually do it for them?  The old adage about giving a man a fish or teaching him to fish is applicable here.  America WILL leave one day.  What is to become of the Afghan experiment with democracy if they do not adequately participate in its creation and initial maintenance?  

All democracies are not identical.  Americans have their form; Indians have another.  The British do it still another way.  Although democracies certainly have vital similarities, cultural differences come into play when it comes to the exact method of practicing democracy.  Why would Afghanistan be any different?  An exact replica of American democracy may not work in Afghanistan.  Anyone else think that perhaps Afghans might have better insight into the cultural application of democracy in their own country?  Perfection is not attainable; good enough will have to do.  And good enough means good enough for Afghanistan.

Law and Order: Afghanistan II

The Appellate Court is located on the other side of the wooden partition placed in the middle of the room.  It is a mirror image of the Primary Court.  I’m told that I cannot attend the proceeding because I’m in uniform and the judges do not like a visible US military presence in the courtroom.  This makes sense because it is an Afghan Court and it should have an Afghan face.  The US military lawyers advising the court wear civilian attire when in the courtroom, but I was unaware of this requirement.  To accommodate, I remove my uniform jacket and weapon.  A US military lawyer gives me a civilian jacket and we hope the judge will not object.  I’ve been yelled at by US judges, but I really don’t want to revisit this Afghan-style (visions of Judge (Col) “Midnight” Murnane begin to occupy brain matter).

Although we expect a full, three-judge panel, only two enter the room.  No one is really sure why the third judge is absent as he’s been seen in the building.  Both judges wear black robes with colored scarf-like material draped around their necks, hanging to the waist.  The senior judge wears a white turban similar to the one worn by American Al Qaeda spokesman Adam Gadahn except that it doesn’t have a tail hanging down.  It makes him look official, I think.  Both judges have close-cropped beards – jet black for the younger, junior judge and salt-and-pepper style accentuating the apparent wisdom of the older judge.  Yep, he definitely looks the part.

I glance at the Accused and am surprised not to feel the same visceral reaction as I did in the other court.  He is dressed like the other guy I saw: tan, wrinkled jumpsuit, black sandals, white taqiyahi, chains on his ankles and a belt with straps securing his arms to his waist.  The difference is his build and appearance.  While the other guy looked healthy and strong, this guy is small, almost sickly looking.  His face is gaunt, hair and beard more unkempt that typical – an almost scared look in his eye.  As I examin him, I can’t help but think “this guy isn’t a threat.”  I was pretty sure my 11 year old son could take him and positive my wife could.  Then I learn of the nature of the threat he poses.  He is a bomb-maker.

In the Primary Court, he was convicted, based on finger-print evidence, of making IEDs or Improvised Explosive Devices, the number one killer of Americans in Afghanistan.  He received a four year sentence and was appealing, maintaining his innocence.  A brief note on sentencing is in order here.  While four years for making IEDs may seem low, it should be taken in context.  Across Afghanistan, prosecutors (and judges) risk their lives just by doing their job.  In an effort to give themselves some measure of protection, many prosecutors ask for more lenient sentences.  I have no idea if this came into play in the case we’re discussing now, but the possibility is always there.  Frankly, the security issue for prosecutor/judges is a very big deal and is a constant battle (more on that in the future as I’m working these issues).  To provide context regarding the security threat, the judges and prosecutors at the JCIP (Justice Center in Parwan) all live in Kabul, about an hour or so drive away.  Once they leave Kabul, there is one road they must drive.  The chokepoint is a sharp turn about 20 minutes out from the court.  This is the perfect place for the Taliban to attack them.  As of now, they have no security whatsoever once they leave the JCIP compound.  How was your commute today?  I admire these guys.

The appellate process is similar to the primary court process in the sense that it is discussion-based, led by the judges and effectively a de novo review.  A de novo review means the judges can review the primary court’s conclusions on both law and fact (see, read my blog, learn some law).  During the trial, the prosecutor emphasized that the Accused had been arrested previously for bomb-making.  In response, the defense attorney presented a letter from Coalition Forces indicating that he had been released the previous time without trial.  This defense attorney used this letter to argue that his client was innocent the first time and, thus, it could not be used against him.  The judge asked for the letter to be read in court (it was read in English and then interpreted).  The letter essentially said that the Accused had been arrested based on probable cause and released due to lack of evidence – not the same as innocence.  The judge has a difficult time understanding this and stops the trial to ask the Americans in the back to make sense of the letter.  I was shocked to see this as I had never seen a judge invoke audience participation.  I guess that’s better than not dealing with it.

The second problematic issue dealt with the fingerprints.  The Accused, not his lawyer, argued that he could not be convicted because he was in jail at the time the IED was found.  A flurry of activity ensues devolving into the lawyers and judges examining a calendar and court documents to determine arrest date and the date the bomb was found.  None of them, including the finger-print “expert,” seems to realize that finger-prints have a pretty long shelf-life, particular when they are found on tape.  This, for me, illustrated the inability to properly understand forensic evidence.  The desire of the prosecutors and judges seems to be there; after all they risk their lives on a daily basis.  However, training is inadequate.  Despite the top-notch job being done by US military lawyers, paralegals, and other advisors, they cannot replace foundational training.  Afghan prosecutors, judges and defense attorneys must develop an understanding of the various types of forensic evidence available and how to apply it in court.  This must begin in law school and be reinforced through continuing education.  The Afghan criminal justice system has problems, but thankfully, desire isn’t one of them.

I’m told that the JCIP is one of the better courts in the Afghan system.  No doubt this is due to the work of its advisors.  Judicial support, I’m told, significantly decreases the further one moves down the judicial chain from national level courts to district level courts.  I’ll judge the veracity of this assumption on my visit to the Nangahar Province (east of Kabul on the Pakistani border). 

Law and Order: Afghanistan

On seeing the Accused, my reaction is visceral.  I study him intently as I have apparently already convicted him in my mind.  To me, he is Taliban – one of the many that have planted IEDs and taken pot shots at US soldiers and Marines.  This reaction seems quite normal to me despite the fact that I’m a lawyer and have been steeped in the principle of innocent until proven guilty.  My saving grace in this gut reaction is that I was a mere observer rather than a participant (although I’ve never believed this principle to apply to prosecutors as they shouldn’t bring a case unless they’re convinced that the accused is guilty).    

The Accused is a man about my age.  He stands about 5’9” and is of medium build, perhaps about 165 pounds or so.  His skin is a brown darkened by the hot, Afghan sun.  He wears the traditional, long, unkempt beard of the kind worn by the Taliban and forced upon their subjects.   The calluses on his hands indicate an occupation involving manual labor.  He is wearing a tan, wrinkled jumpsuit, black sandals, and a white taqiyahi or pakol, a brimless hat typically worn to express one’s belief in Islam (or so I’m told).    Around his ankles he wears cuffs attached to a chain just long enough to permit him to walk.  A sturdy, wide, nylon belt is locked to his waist.  Nylon straps, approximately two feet long, attach his wrist cuffs to the belt while still allowing some movement of his arms.  This permits him to move in and out of the courtroom and sign documents without giving him the ability to pose a physical threat to those around him.  As I study him he looks at me, his dark eyes empty of feeling.  He shows no shame, no remorse but neither does he show hostility.  He is expressionless.

The courtroom is a small room in a fairly non-descript building.  On the wall at the front of the room, is a large Afghan flag.  Four polished, but somewhat distressed tables are arranged in rectangular form.  The tables are barren of any material; no pens, no paper, no trial folders.  A red Afghan carpet occupies the area between them.   The larger of the tables is placed at the front of the room and has three chairs for the panel of judges.  At the other end of the room, directly across from the judge’s table is the table for the defendant, which has chairs for him and an interpreter.  The sides of the rectangle consist of tables for the prosecutor, or saranwali, and the defense attorney.  The back of the room has chairs for the audience and a desk for the court interpreter.  There is no court reporter.

The Afghan criminal justice system is a three-tiered court system.  The primary court is where the initial trial takes place.  Once a verdict has been announced, either the defense or the prosecution can appeal to the second level, the Court of Appeals.  The appellate court conducts a de novo review of the case meaning it looks at the case anew and can dismiss the case and increase or decrease the sentence.  Once the appellate review is finished, a case can then be appealed to the Supreme Court wherein that court’s review is limited solely to legal issues to ensure compliance with the law.

After spending quite a bit of time reading and working through the Afghan Criminal Procedure Code in preparation for submittal to the Afghan legislature, I finally got a chance to see it in action.  I took a trip up to Bagram (about a 15 minute flight from Kabul) to see the Justice Center in Parwan, which is where national security cases (i.e. terrorism; insurgency) are handled.  Afghanistan’s legal system is based on civil law and, therefore, will be foreign to most US attorneys.  However, it is by far the most common legal system in the world.  Having no real experience with civil law prior to coming here, I cannot speak to Afghanistan’s version of it as compared to others.  Perhaps some of my attorney friends from civil law systems can post a comment as to how Afghanistan compares from a procedural perspective. 

We stand as the three judge panel enters the room.  Once seated, the senior judge opens court in the name of Allah and nods for the prosecutor to begin.  The prosecutor stands and recites the indictment, periodically stopping to point to evidence in support and answer questions from the judges.  During this prosecutorial presentation, the Accused is allowed to speak and, in this case, does so.  In fact, the prosecutor and defendant engage in light argument.  “Do you have any proof against me?” asks the Accused.  “Just you wait and you’ll hear,” answers the prosecutor.  As the prosecutor goes through the indictment, I’m quite surprised that (1) the Accused speaks for himself rather than through his attorney and (2) he and the prosecutor basically argue the case with the judges periodically interrupting to ask questions. 

Roughly 30 minutes into the trial, the defense attorney finally speaks.  He makes a brief statement that basically reiterates what the Accused has already said.  The Accused uses this opportunity to complain about his poor treatment in the “black prison” (e.g. cold, little food, etc.) and the dog bites he received during his capture by US troops (okay maybe I do like dogs).  The judges question him on this and then marvel as he shows them the dog bites.  The questions from the judges come for another few minutes and the trial is over.

The trial lasted 45 minutes during which the defense attorney spoke for only about three.   The Accused essentially argued his own case.  Now this may seem strange to those familiar with common law systems, but perhaps there is more to this than meets the eye.  The judges get all the documentation, evidence and the indictment prior to the actual trial.  So, it seems to me that the trial is merely an opportunity for the Accused to say his piece.  Here, I’m still a bit confused and I’ll need to consult more with the court’s US advisors to get a better understanding of the pre-trial procedure.

In this case, the Accused was charged with possession of various weapons (pistol, AK-47, AK-47 magazines with ammo, a mortar stand (i.e. the metal legs that attach to the tube), and 600,000 Afghanis (Afghan money, approximately $13k).  He argued that the pistol was for protection and the AK-47 stuff was old and left over from the war against the Soviets; I didn’t catch what he said about the mortar stand).  I thought he did a pretty decent job.  However, as he got deeper into his story and provided way too much information, he began to contradict himself.  His luck was holding, however, and neither the judges nor the prosecutor pointed out these inconsistencies.  This is the main concern with the Afghan legal profession.  Critical thinking is apparently not taught in law schools resulting in an inability to thoroughly work through legal issues.  

So, was my initial reaction to the Accused accurate?  Of course it was.  After deliberating for approximately 20 minutes, the judges reconvened and announced a guilty verdict with a sentence of two years.  Since the charges involved only possession of weapons, I thought this was fair.  The State Department lawyers I attended the trial with disagreed and thought 4-6 years was a more accurate sentence.  We were told afterward that the average sentence was 4.4 years.  However, the sentence is really irrelevant from a rule of law perspective.  What really matters is the process and, although it is much different than the common law system I am used to seeing, it does seem fair.  Afghan judges and lawyers participate in trails against Afghan defendants and the process is open to all.  In fact, from the perspective of the Accused, there is little room for complaint.  The only persons with a complaint would be the judges and prosecutors as the literally risk their life doing their job as they currently have no protection to and from work.  They are the true heroes of Afghanistan and should be admired for risking all in the name of law.

Quantity > Quality: Initial Thoughts on Measuring Success in Rule of Law

Metrics.  There is nothing so loved in the military as metrics.  Boxed in nice, neat little packages, metrics give you a measure of something you value.  In Afghanistan, we measure all sorts of things.  How many Afghan National Police do we have today?  134,000?  Why, that’s an increase of 15% from last year.  We must be doing better.  How many patrols are we running in Helmand province?  A 10% increase?  Wow, we’re doing better.  We’re winning the war.  The problem with this approach is that it values quantity over quality; an acute problem with rule of law programs.

It is sometimes said that the newest person in an organization brings the most unbiased eye.  This is typically so because the new guy has no stake in what has been done before and neither has he been corrupted by group think.  It is in this vein that I offer my initial observations based on many discussions with many folks.  Of course, there is always the risk that initial opinion is colored by naïveté.  Only time will tell whether that is the case here, but my initial view is supported by some of the “oldtimers” in Afghanistan that have a number of years in the business.  Judgment will have to be reserved until near the end of my tour I guess.  Well, on with it….

Metrics are used in a number of ways in rule of law programs in Afghanistan.  We measure the numbers of courthouses, judges, prosecutors, training programs, law schools, textbooks per class, etc.  We also determine the ratio of sharia-trained judges to the number of civil law trained judges among a plethora of other things. 

There are 398 districts (think counties) in Afghanistan spread among 34 provinces (think states).  Of these districts, 188 have no judges, 130 have no prosecutors, and 120 have no courthouse.  Now these numbers are fairly dismal, but there has been improvement since 2001.  Does that mean we’re winning the rule of law war?  I’m not so sure.  Let’s think about this for a moment while focusing on courthouses since that seems to be a favorite of many rule of law folks here.   The numbers tell us we have 278 courthouse in Afghanistan; thus, 70% of districts have a courthouse.  That number sounds fantastic in light of the fact that Afghanistan is an undeveloped country, right?  So what’s the problem?

Well, that number doesn’t tell you whether a specific courthouse has a judge, a prosecutor, or is even open.  Indeed, even if provided a courthouse, judge, prosecutor and all the other things you might imagine, we still might be losing the battle.  To have effective rule of law, you must get buy in from the people.  If the people do not trust your legal system and refuse to use it, you’ve lost.

Another problem lies with the law schools here.  The facilities are dismal.  My own law school, the University of Tennessee, scream law when you walk in the building.  Italian marble floors, oak paneling and banisters, a law library that puts many to shame, and some mighty fine professors (all in the heart of Knoxville, the best damn college town in America IMHO).  Here, the story is quite different.  The buildings would likely be condemned in most US cities, bathroom are non-functional, there is no library – students shares books, and truly educated professors are hard to come by.  Some have bachelor degrees with legal training; others were educated in Sharia at the madrassa.  So, naturally, the solution to “winning” is building schools, filling law libraries and get regular professors – all things that can be measured with metrics.

The problem, however, is that law students are not taught critical thinking, even with a regular professor.  Students are taught law, but not how to apply it to differing situations. For example, imagine that two farmers conspire to steal livestock from a neighbor. They make a plan for the first man to distract the neighbor, while the second takes the animals. The men carry out their plan, and are later caught. Should the two men receive the same punishment? If the men decide at the last second not to take the animals, should they be punished? What if they men mistakenly believe the animals actually belong to them?*  These are issues that Afghan law students are not taught to work through, while any first year student in the US would at least have a coherent thought process for dealing with them.  To be fairly applied, the rule of law must have able attorneys and judges capable of engaging in a critical thought process so that laws are evenly applied.  Otherwise, law is applied arbitrarily and lacks legitimacy in the eyes of the population.  Without legitimacy of law, we lose. 

*This example taken from Afghan Legal Education Project, “An Introduction to the Law of Afghanistan,” 2d ed., 2009.   

Strap-hanging

A few days ago, I was asked to write some remarks for the Ambassador to use at a Judicial Security Unit (JSU) graduation and a talking points memorandum for a meeting between him and the Chief Justice of the Afghan Supreme Court (the ultimate boss of JSU).  Of course, I only wrote a rough draft and the Ambassador’s people gave it a once over, but the foundation of what I wrote remained. As a result, I was asked to go out to the JSU compound for the event.

The JSU is a special unit of the Afghan National Police responsible for security of three national level courts.  Their responsibility will eventually expand to court security for the entire country.  The US Marshals Service is currently training them.  The event was to include the graduation, a demonstration of JSU capabilities, and a discussion between the Ambassador and Chief Justice regarding current and future security issues.  I was quite surprised at receiving an invitation given the high-level nature of the meeting.  I should not have been.  As it turned out, I did not get to be in the room during the discussion and spent most of my time waiting outside, strap-hanging.  That will teach me not to make assumptions!

Knowing that the US had spent roughly $11.5 million dollars on this program, I was excited to see the demonstration.  It was outside so I got to see it.  The JSU has staged three vehicles at one end of the compound: two police trucks and an armored Toyota Landcruiser.  As people moved toward the demonstration site, I eagerly awaited the climax of the day’s events.  The police loaded into their vehicle, an unarmed policeman playing the role of judge.  They all sat in the vehicle for a few minutes to simulate driving, I guess.  Then, all at once, everyone jumped out, weapons raised, immediately surrounding their “judge.”  The walked 50 feet from the vehicles, turned around, walked back and got into the vehicles.  Demonstration concluded.  Jaw completely open as a result of this $11.5 million demonstration, I looked to one of the trainers.  He shrugged and said that was all they could do.  I was dumbfounded.

However, I failed consider the unique circumstances of Afghanistan before passing judgment.  Three high-level Distinguished Visitors were present that day, each with their own heavily armed security detail.  One of the Afghan details was armed with AK-47s and a bag full of Rocket Propelled Grenade launchers in their vehicle.  Since a typical JSU demonstration involves flashbangs (used to simulate a bomb), it probably wasn’t a good idea to go all out given that most of the guards were fairly jittery.  This goes double for one of the Chief Justice’s guards who insisted on carrying his AK by the pistol grip with his finger in the trigger guard.

In the graduation speech, the Ambassador said they were not protecting just a single judge, but an entire justice system.  Yep, that was mine.  I’ll have to be content with that.  :-)