Oregon State Bar Bulletin — OCTOBER 2007



Oregon State Bar members have played an important role the past two years in a tough task that one of them, William L. “Scotty” Sells, describes as “legal nation-building” in Afghanistan.

When about a half-dozen Oregon attorneys, along with a total of 900 other members of the Oregon Army National Guard’s 41st Brigade, were called up in February 2006 to go to that country to mentor and train the budding Afghan National Army, lawyers such as Capt. Bryan J. Libel endeavored to mentor and train the Afghan army’s legal corps. Libel is a full-time military lawyer in Salem with the Oregon Military Department.

Another Oregon attorney, Maj. Gregory L. Day of Grants Pass, served in Afghanistan as an infantry officer. Although he was there in the capacity of a National Guard member, not a military lawyer, Day still used his legal background to try to impart to the Afghan military leaders some understanding of and appreciation for the rule of law.

A third OSB member, Sells, of Kelso, Wash., was in Afghanistan as a contractor to advise the Afghan deputy minister of defense for legal affairs.

The three shared with the Bulletin some reflections of their experience in a place they found foreign in unexpected ways.

-Cliff Collins

Building a Military Legal System for Afghanistan

By Capt. Bryan Libel

When I first arrived in Afghanistan in May 2006, I perceived it as very pre-industrial. The urban areas had signs of technology like cell phones, cars, modern clothing and DVDs. But other indicators of a modern society were noticeably absent, such as electricity beyond populated areas, a sewage system, running water, refrigeration and the ability to heat or cook without an open flame.

The former Soviet Union’s presence still pervades, with its abandoned military equipment littering the countryside and its dispersed land mines dictating where not to travel.

The rural areas had a biblical ambience to them. Shepherds watch over their flocks of sheep, nomadic tribes travel across the open land with camels, sheep and dogs, and villages hug the banks of the few streams in Afghanistan that flow year-round.

Shaping Our Mission
I was part of the advance team to help prepare for the 41st Brigade Combat Team’s arrival and assumption of command of the Combined Joint Task Force Phoenix V, which grew to over 5,000 service members from 32 states and two territories.

Although other judge advocates and I would be providing the task force with the legal support that normally is given in a deployed environment — such as command legal advice, military justice, legal assistance, claims and operational law — I considered how much more of an impact our legal team could have if we were involved in training and mentoring the Afghan National Army’s legal corps.

I was determined to get our legal team involved, and after a few days "in country," an opportunity presented itself.

One of the two judge advocates charged with training the legal corps visited our task force headquarters to solicit help. The two-lawyer team provided day-to-day mentoring to the senior officer of the Afghan army’s legal corps, but was able to visit each of five regional commands only once a month to train legal officers stationed there.

The result was they were not effectively training the lower echelons of the legal corps, where most of the action was occurring. To try to solve this problem, we crafted a plan for our task force to have a U.S. officer appointed at each regional command as a legal liaison to the Afghan army legal officers. The U.S. officer was to report on pending investigations and disciplinary matters. Lt. Col. Dan Hill, our task force’s senior judge advocate (and the circuit court judge for Umatilla and Morrow counties), concurred, and the task force commander approved the plan.

Not long afterward, we learned that three additional judge advocates were to arrive soon, as part of a Utah Army National Guard contingent. Our task force commander approved that each Utah judge advocate would be stationed at a regional command to advise the U.S. regional commander and to train and mentor the Afghan army legal officers.

By November 2006, the task force had judge advocates and legal liaisons at the five regional commands and one at the Afghan army military training center in Kabul — all training, mentoring and reporting pending investigations and cases through the task force to Afghanistan’s Ministry of Defense.

Further — and unique to the National Guard and military reserves — the task force also had officers who were Oregon lawyers but not Army judge advocates. At their respective duty locations, these OSB members readily used their civilian skills to help mentor the Afghan army legal officers.

Challenges — and Accomplishments
The Afghan National Army is that country’s first standing army, so that fact naturally presented significant challenges. The idea of having separate standards of conduct to which only its military must adhere is new to the Afghans. Although some soldiers may have had experiences with the Soviet army, most have lived only by Islamic teachings and Sharia law. To establish and maintain good order and discipline in the Afghan army, Afghanistan President Hamid Karzai directed the establishment of military courts in September 2005, and signed into law the Afghan military justice code in December 2005.

The Afghan people are humble, religious and family-oriented. They are very hospitable and like to gather for hot tea — regardless of what the temperature is outside. During one humanitarian visit to a local village, we met with the village elders and enjoyed tea, nuts and raisins. The village leader, who also had fresh fruit brought into the meeting, started peeling and slicing apples and offering them to us. He directed the other elders to do the same. To witness five men do such considerate, hospitable acts was moving and humbling itself.

Also, the routine call-to-prayer reminds Afghans of their religious obligations and Westerners of the nonsecular society we are visiting. In the marketplace, the Afghans enjoy the art of bartering, and have respect for those who drive a hard bargain.

Afghanistan has no communication infrastructure worth mentioning. For the most part, post mail, the Internet and telephony do not exist at the regional and national levels, and even at the local level in most parts of the country. And Afghanistan essentially has only one paved road for cross-country travel — a fact the insurgents readily know and exploit — and this road must be shared with camels, horse-drawn carts, man-drawn carts, flocks of sheep, herds of goats and Afghans who have no driver training whatsoever.

Hence the value judge advocates and legal liaisons added by being stationed "down range" with their Afghan army counterparts, training and mentoring on the Afghan military justice code on a more recurring and consistent basis. Now an Afghan solider can obtain relief more quickly in a situation such as when, based on a mere allegation, his commander has ordered him to pre-trial confinement in a metal cargo shipment container, under the hot summer sun, with little food and water and with no judicial oversight.

Another concept requiring a paradigm shift — especially in establishing a military regiment — was time. The Afghans had regular clocks and watches to mark time, but they were less accustomed than we are to using an exact time schedule. For example, if you would say to an Afghan, "Let’s hold training tomorrow morning at 8," you could end up waiting hours before the person arrives. In our culture, we would focus on the 8 a.m. meeting time, while the Afghan would note only the morning time frame.

Also, on payday some Afghan soldiers will leave their military duties and go home to give the cash to their families, who may be living hundreds of miles away. Others will go home during harvest season to help with the field work. Eventually, these soldiers may or may not return to duty. Such widespread AWOL occurrences make training on personnel accountability, and disciplining this practice, a challenge.

Nevertheless, although any micro-level observation of the Afghan National Army will reveal issues that still may need working through, a look at the macro level will just as clearly show the phenomenal strides the Afghan army and Ministry of Defense have taken in the last few years.

I got the impression the Afghans have endured a lot since the late 1970s, with internal power struggles, the Soviets and the Taliban. The Afghans are mindful and proud of their deep history — dating back to before Alexander the Great — and consider their war-torn past as badges of honor, courage and perseverance.

But I also think they find the insurgent violence disruptive to rebuilding their country and would like to see it stop. Most of the populace understands and appreciates the U.S. and coalition force’s help, enabling the Afghan people to better secure and stabilize their country.

ABOUT THE AUTHOR
Capt. Bryan Libel is assistant judge advocate general to the Oregon adjutant general in Salem. Libel served spent seven months in Afghanistan last year.

 

Guns, Goats and Justice in Afghanistan

By Maj. Gregory Day

In early 2007, I was working as an adviser embedded with an Afghan National Army infantry battalion, and had been gone for about a year from our law practice in southern Oregon. I was stationed near a small town southeast of Kabul near the Pakistan border.

One afternoon in mid-January, I learned from a battalion commander that one of our Kandak (Afghan battalion) soldiers had gone down to town earlier that week, looking for some medicine that he’d decided he needed. Much of the Afghan economy relies on goods from Pakistan, but the Afghans believe Pakistan’s products are inferior in quality. This soldier insisted that the medicine he wanted would have to be the Chinese version, and not from Pakistan.

The local pharmacist assured the soldier that the product was from China, not Pakistan, but the solider didn’t believe him and used a form of nonverbal communication highly valued in their culture: He shot up the store and stormed out in a huff.

Getting His Goat
Over the preceding weeks I’d been teaching the Kandak officers and sergeants about their nonjudicial punishment code, trying to get them to use the rule of law in imposing discipline rather than just beating the daylights out of wrongdoers. It seemed to me that this situation of the soldier and his improvident discharge of a firearm was a good opportunity for the Kandak soldiers to see their fledging military justice system in action.

Persuading the Afghan army to use its own military legal system is harder than one might think. They’ve made some great strides in dealing with tribal and ethnic tensions, but equal opportunity and nondiscrimination are still new concepts to them.

Helpful in changing the cultural paradigms is the fact that we control the operational funds that are designated for the Afghan army’s benefit. We pay for facilities maintenance and improvement, parts and tools, contract work, firewood and a variety of other things. I informed the Kandak commander at the time that if this soldier wasn’t formally charged and an open hearing held to weigh his actions, I would cut off all funds until this was done. That got their attention.

I helped the Kandak commander with the legal forms, went over with him his responsibilities during the hearing, and acted sort of as his judge advocate during the hearing itself. It went extremely well. The soldier was found guilty of violating one of the articles of the nonjudicial punishment code, and the commander imposed 10 days hard labor as punishment, in accordance with their regulations.

At that point, I thought the issue satisfactorily resolved, but then discovered that members of the medical community of the town where the pharmacy incident took place had been deeply offended by the soldier’s conduct, and were threatening to pack up and move to a larger town to the north if "justice" wasn’t done.

I protested that justice had in fact been done, and that the soldier at that moment was scrubbing the kitchen floors down in the Kandak chow hall. But it seems that an important part of local legal tradition had been overlooked in our attempt to see the triumph of the rule of law. In the doctors’ eyes, it wasn’t good enough because, quite simply, the process had failed to include any goats.

You have to realize that this part of Afghanistan is heavily Pashtun, and they still tend to follow a tribal code they call Pashtunwali. Under this code, in a case such as this, when some members of the community had been deeply offended by the soldier’s actions, there needed to be some form of restitution to restore balance to the relationship between the Afghan army and the local community.

The way to do this, I was told, was to get the Kandak commander to give the doctors a goat. I drove down to the livestock pen, where we found an irascible male goat. We wrestled him into the back of the truck, and I took him over to the Kandak. The Kandak commander was highly amused in observing me handling the goat. I’d barely started explaining things to him when he interrupted me and said he completely understood what was required and would take care of it himself. He opined that most likely the doctors would butcher and cook the goat on the spot, inviting the Kandak commander and the security detail to the feast. Or, he added, they would simply give the goat back to him, thanking him for the gesture. I left it to him to take care of the rest of it. I figured that billy goat and I had parted ways for good.

An Unexpected Gift
Right about this time I received reassignment orders to serve as the adviser to the officer responsible for Afghan army operations in the Eastern part of the country, in the area of Tora Bora and Shah-i-kot. After learning this, the Kandak and my team got together to throw a little going-away party. Halfway through it, the senior Afghan and U.S. officers present told me that they had a going-away gift for me. I immediately became suspicious, and with good reason. The door to our little meeting room opened and in came that goat, with a bright, cheerful ribbon and bow around his neck.

It turns out that the doctors didn’t actually want a goat, they just wanted to be given a goat. Once they were given the goat, they magnanimously gave it back, as the Kandak commander had predicted. The Kandak figured that having the goat back tied in well to my leaving. My team members, knowing that Army officers are not generally permitted to travel or conduct operations with a live goat (nor a dead one, for that matter), of course told the Kandak that a goat would be an ideal going-away gift for me.

I explained to everyone that though I much appreciated the goat, I was moving and didn’t have any place to keep a goat. Besides, it was a seven-hour ride over rutted tracks, and I really didn’t have any way to transport it. My interpreter whispered to me that refusing the goat would be offensive, but he was smiling as he said it.

My solution to this was to accept the goat but ask them to keep it for me. Maybe, I suggested, we could have a barbecue the next time I got back down here. All smiled and nodded their heads, and I figured I’d dodged that one.

The next morning all my gear was loaded on a truck. I looked over at the lorry with the gear in it, and a couple of Afghan soldiers were tying my goat to the side rail next to my luggage. Our S.P. (start point) was in about five minutes, so I had to accept the inevitable and take my goat. All the way up I worried about what I was going to do with that goat, and how I was going to explain it to my new boss up there. When we arrived, I told the sergeant in charge of billeting that I had three duffel bags, a toughbox, a rucksack, an assault pack — and a goat.

So, within a few minutes, everybody wanted to see my goat, take pictures of it, and make some sort of smart-alecky comment about it to me. This was not exactly the first impression I’d wanted to make, but it was out of my hands at that point. The lieutenant colonel I was replacing was particularly tickled by it, and despite all the "teamwork" ethos we’re supposed to have, neither he nor anyone seemed interested in helping me out with it. Instead, they appeared to enjoy watching to see what I would end up doing with my goat.

In a flash of brilliance it occurred to me that if the goat was an acceptable going-away present to me, then perhaps it would be just as acceptable a welcome gift to my new counterpart. I got the interpreters to keep the goat for me that night, and the next morning I held up traffic loading my goat into a borrowed truck. Luckily one of the gate guards was a ranch hand from Oklahoma, and he got the kicking, squirming thing up into the truck and tied down for me.

I introduced myself to my new counterpart, and told him I had a gift for him. He seemed pleased but somewhat confused at the gift. I very much doubt that any Americans he’d previously worked with had ever given him a goat. He had one of his sergeants come and get the goat, and I was relieved to finally have the thing off my hands.

This has been quite an adventure so far. The majority of Afghans I’ve encountered are friendly and supportive of coalition efforts to stabilize their country. Most of them just want normality and the opportunity to make a decent life for themselves and their families. Despite the somewhat desperate efforts of the insurgents shown in the news, you really can see progress being made here, with local citizens increasingly participating in and supporting their own governance.

ABOUT THE AUTHOR
Gregory Day is a partner in the firm Davis, Adams, Freudenberg, Day & Galli in Grants Pass. At the time he wrote this account in March, he was on his way to Italy to meet his wife, Linda, for his mid-tour leave.

 

A Mentor’s Tale: Legal Institution-Building in Afghanistan

By William "Scotty" Sells

Returning to the Northwest after two years of active duty as an Army judge advocate, I applied to Military Professional Resources Inc., a government contractor actively seeking retired judge advocates to advise and mentor the Afghan Ministry of Defense legal department and the Afghan National Army judge advocate branch. In March 2006, after a quick orientation at corporate headquarters, I was "boots on the ground" in Kabul.

During a two-week overlap with my soon-to-be predecessor, I became acquainted with the heat and dust of the capital city, the Camp Eggers military compound (a ramshackle collection of aging Afghan structures and corrugated metal ocean shipping containers recycled into office space), my heavily guarded residence, my driver (from the kamikaze driving tradition) and my mentoring clients.

My predecessor, along with an Army judge advocate and other military lawyers, had crafted modern military justice codes for the Afghan army. U.S. and Afghan proponents revised and refined the codes, Parliament approved them, and they became the Afghan military’s jurisprudence.

I participated in several training sessions and a mock appellate hearing. The next step was to take the training into the field, teaching commanders and staff officers about the new laws and procedures. Without exception, the Afghan army leadership welcomed the clear and direct guidance of the military codes, and continually expressed their gratitude to the mentors who introduced them to the new laws and taught them how to administer them.

I observed the first court-martial conducted under the new codes, which went well. Although the participants lacked the degree of comfort and familiarity shown by American or NATO JAG counterparts, all of the judges, lawyers and court staff demonstrated knowledge and understanding of the new codes and procedures, and how they were to apply them.

Inventing Wheels
I next turned my attention to other aspects of legal mentoring at the Ministry of Defense legal department. I soon learned that neither the leadership nor the rank-and-file had a clear grasp of their jobs or how to do them. A serious lack of office space and equipment further complicated getting the job done, and several lawyers — often an entire department — shared tiny work spaces in a decrepit Soviet-era building, with no desks, file cabinets, computers or other necessities of legal practice.

Meetings with my mentoring clients took place in the office of the principal deputy, over innumerable cups of chai tea and plates of pistachio nuts and raisins. More people than necessary attended these meetings, and all expressed strong and highly vocal opinions; occasionally some even touched on the topic of discussion. But eventually, everyone’s views were aired, and the participants arrived at something resembling consensus.

At first, I often felt less like a mentor, and more like the second-grade playground monitor. But eventually these free-for-all, unstructured diatribes in a mysterious foreign language began to make sense, and I realized that this time-consuming process was, in fact, necessary as a customary part of Afghan culture, and allowed a full discussion of the issue, with those involved often contributing fresh insights.

For several months my daily efforts focused on a collaborative process to identify the organization’s truly essential tasks and to develop coherent job descriptions for each member of each department or directorate. Starting with the best-managed and best-organized directorate, I led all of the departments’ professional staff through a simplified Socratic dialogue, getting them thinking and talking about what they and their colleagues did, and what they thought they should do.

The process was alternately amusing, exasperating and ultimately gratifying. After several months of strenuous effort (occasionally resembling "herding cats"), the result was a workable document for each department that, for the first time, clearly defined and described that department’s duties and responsibilities. Although this process expended an enormous amount of time, effort and chai tea, it is now accomplished, and the results adopted as departmental policy.

I also began identifying and responding to legal issues affecting other departments of the Ministry of Defense, such as drafting ministry procurement regulations and standards of conduct for the Afghan army, and training ministry lawyers in the ins-and-outs of parliamentary process.

Much of the work involved scrapping Soviet-era laws, regulations, policies and procedural rules, and encouraging national leaders, commanders, judge advocates and military lawyers to abandon their Soviet-induced mind-set of passivity and timidity. Not an easy job, especially while the country is fully involved in an armed conflict.

The Next Chapter
Afghanistan is a fragile nation-state that nonetheless remains a key player in the global war against terror, and stability in Afghanistan remains a critical U.S. national priority. My hope is that the generous international investment of financial and human resources in security, economic development and stable government will continue.

An overwhelming majority of Afghan citizens, including political, ethnic and religious leaders, will continue to oppose Taliban extremism and violence. The Afghan National Army has become the most respected national institution, and will continue evolving in size and quality.

Additional international mentoring and investment will develop the once feared and despised Afghan National Police into an honest and effective security force. Illicit opium production, which helps fund the Taliban, will continue for the foreseeable future, until meaningful solutions are developed. These changes will take many more years to achieve.

I will always have deep affection for those in the U.S. armed forces and the international community here in Kabul working to make a difference, and those Afghans I’ve come to know as proud and enduring people, with strong values and a love of their homeland that surmounts extreme hardship and physical danger.

ABOUT THE AUTHOR
Southwest Washington resident William L. "Scotty" Sells wrote this account early this year. At that time, his one-year contract was near its end, and he reported that he was about to leave for "Baghdad and all of its unique challenges," to work for the Iraqi government and to "continue institution- and nation-building."

 

ABOUT THE AUTHOR
"Postcards from Afghanistan" was compiled and edited by Cliff Collins, a Portland-area freelance writer and frequent contributor to the Bulletin.

© 2007 compiled and edited by Cliff Collins from writings by Capt. Bryan Libel, Maj. Gregory Day and William "Scotty" Sells.


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