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Difficulty of enforcing rule of law in lawless land

U.S. suspect Idema speaks during a hearing inside a courthouse in Kabul
U.S. suspect Jonathan Keith "Jack" Idema, wearing sunglasses, speaks during a hearing at a courthouse in Kabul on Aug. 16. Brent Bennett, second from right, and Edward Caraballo on the right, are also charged with hostage taking and torture.Ahmad Masood / Reuters
/ Source: NBC News

The bizarre court case in Afghanistan involving three Americans charged with misrepresenting themselves, setting up their own private jail, and serving up vigilante justice demonstrates the wild west nature of Afghanistan and the difficulties of enforcing the rule of law where the justice system is still very much a work in progress.

Forget the Laci Peterson trial. In the fledging democracy that is Afghanistan, the "trial of the century" began this week in a Kabul courtroom jammed with a few hundred local and international journalists.

The three American defendants, a former U.S. Special Services soldier, Jonathan Keith “Jack” Idema;  Brent Bennett, who the prosecutor described as a “loyal soldier of Jack”; and filmmaker Edward Carabello, who had come to Afghanistan to document Idema’s activities, entered the court in handcuffs, which were released before they stepped into the dock.

Idema wore sunglasses throughout the proceedings on Monday, and he and Bennett were dressed in khaki fatigues.

Four Afghans defendants followed. All present stood when Judge Abdul Bassett Bakhtiari and two court officials entered, impressively dressed in heavy velvet robes.

So far it had all the appearances of a trial in most democratic countries.

But it soon became clear that all would not be smooth sailing.  After a mullah recited some verses of the Quran, the judge summarized the events that had led to this trial.

He had to stop repeatedly to let the translator do his job for both the American defendants and the foreign press. The small speaker propped up against a pillar distorted the translator’s voice, and foreign journalists and defendants alike had to strain to follow the proceedings.  It promised to be a long day.

Charges of vigilante law
The prosecutor, Mohammed Nameem Aware, presented his case against the American and Afghani defendants, first spelling out a lengthy list of accusations, then repeating the main charges: illegally entering the country, setting up and running private jails, conducting armed arrests of Afghan citizens, and misrepresenting themselves to Afghan government officials.

Aware said he had evidence, including photos and videos, to prove his charges, and witness testimony from the eight people who had been detained by Idema and his colleagues. Torture equipment had been found, including chains, ropes and blood stained fabric. He asserted that the International Security Assistance Force (ISAF) and “the Americans” had denied any connection with the defendants.

Aware accused the Afghan defendants of witnessing illegal acts without informing the authorities. He added that one of the Afghan translators had testified that “Jack” had threatened to kill him if he talked about the activities he witnessed.

Finally he asked the judge for a sentence in accordance with Afghan law.

Afghan law a work in progress
But Afghan law is a work in progress. Under the Taliban regime all previous laws were ignored, and Islamic law or Sharia was applied to every aspect of Afghan life.

Prison sentences were handed to people who traded during prayer time; a woman who left home without the burqa had her house marked and husband punished. Women were publicly stoned for committing adultery. 


The Loya Jirga, Afghanistan’s Transitional Government, approved a new constitution in January, establishing Afghanistan as an Islamic State, governed by democratic principles, for the benefit of the people and the government.

But the country’s penal code, drawn up in 1976, is being re-drafted and simplified as one of the country’s re-construction projects.  Judges and lawyers are still being re-trained.

Idema, or “Jack” as the judge called him, defended himself since his lawyer had not arrived from the United States.  He attacked the judicial process -- complaining that he had not received a written copy of the charges, neither in English nor in Dari. He also asked for an English translation of the applicable laws. 

During the next few hours a verbal ping-pong game ensued between the judge, the prosecutor and Idema. Idema repeated his demand for translations of the indictment, and accused the FBI of withholding important documents and videos that would prove he was working with the full knowledge of ISAF and the U.S. government.

Bakhtiari listened to this argument, but pressed Idema to answer the two main charges first: How did he enter the country, and who gave him authority to arrest, detain and interrogate Afghan citizens? 

Idema did not deny having interrogated Afghan citizens, but claimed to have used standard interrogation techniques: “No-one was beaten or hung upside down!” 

“But who gave you the authority to interrogate these people,” Bakhtiari asked again.

Idema produced an e-mail that, he said, proved his relationship with ISAF, and he re-iterated that the documents taken by the FBI would prove he was working on a legitimate anti-terrorist operation, with the knowledge of the Pentagon, the FBI, CIA and NATO forces in Afghanistan.

The Pentagon, the FBI and ISAF have denied they supported Idema’s operation, but the U.S. military has admitted it held and questioned an alleged Taliban official handed over by the vigilante group. The suspect was later released on lack of evidence.

When the judge pressed Idema again and again to answer the main charges, he blurted out “This is no democracy, in a democracy I should be able to call witnesses!”

Finally Bakhtiari seemed to lose his patience and replied “Don’t lecture me about democracy, answer the main charges!” 

At one point Idema flung his arms up in frustration, shouting “I cannot defend myself like this, just give me 15 years and let’s get this over with!” 

Free legal aid
Once Edward Caraballo’s opportunity to answer the charges arrived, he was represented by lawyers of Legal Aid of Afghanistan, which recently opened offices in Kabul to provide legal assistance for criminal defendants of Kabul. 

Michael Skibbie, an American and Caraballo’s lead attorney, said he never expected to be defending an American when he volunteered for the six-month pilot project to provide legal assistance in Afganistan.

Skibbie surprised the court by announcing the FBI had told him it would return the missing evidence to the National Security Directorate. Skibbie pointed out that, as the defense had not seen the evidence before the FBI removed it, there was no way of telling whether it had been tampered with.

He requested that the court provide information about who had had access to the files, and asked for a 7-day delay in the court’s verdict, so that all parties would be able to examine the new evidence. “By doing this you will restore confidence in this court and its proceedings,” Skibbie told the judge.

At the end of the day, without the testimony of the third American Brent Bennett or the two other Afghan defendants, Bakhtiari announced a one-week postponement during which the court would prepare an English translation of the prosecutor’s case, and the parties would have to examine the documents released by the FBI.

The trial resumes on Monday. If found guilty, the seven defendants could face jail sentences of between 16 and 20 years.