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Don't Forget Afghanistan's Justice System

Robert C. O'Brien is the Co-Chair of the U.S. Department of State Public-Private Partnership for Justice Reform in Afghanistan and the Managing Partner of the Los Angeles office of Arent Fox LLP; Stephen G. Larson is a member of the Executive Committee of the Partnership, a partner at Girardi Keese in Los Angeles and a former United States District Judge.

President Obama has reaffirmed our commitment to winning in Afghanistan and American and British Marines are on the offensive in Marjah. Winning in Afghanistan requires that we, our coalition allies and Afghan forces, defeat the Taliban insurgency, end the rampant narcotics trade, and overcome pervasive corruption among Afghan officials. A key to success in dealing with all three areas is rebuilding the Afghan justice sector.

The task is large and will take time, but with a real partnership between the Coalition and Afghan police, prosecutors and judges, accountability, and patient dedication, it can be accomplished.

The challenges presented by the insurgency, the narcotics trade and public corruption are interrelated. The narco-traffickers in Afghanistan work hand in hand with the supposedly anti-drug Taliban and their fellow-travelers from Al Qaeda. They supply the Taliban with a share of opium profits in return for protection. The Taliban also provides the traffickers with logistical support as they move their deadly product to Pakistan, Iran, and, ultimately, Europe.

These transactions give the Taliban operational funds to terrorize the Afghan people through suicide bomb and IED attacks. Illicit drug profits also corrode the Afghan justice system as local and national policemen, prosecutors, and judges are paid off to ignore the narco-traffickers' criminal activity or to allow those who have been arrested to escape trial, conviction and jail.

The Afghan National Army is rapidly becoming the most trusted institution in the country.

In large part, this progress is due to excellent training and the resources provided the Army by Coalition forces, including the provision of a living wage to Afghan soldiers. Unfortunately, the Afghan National Police lags far behind the Army in reputation and capacity. This is in large part due to a lack of training, lack of equipment and lack of funds to properly pay the police. The judiciary has a solid reputation but is also in dire need of adequate funding. On recent visits to Afghanistan, we saw that Afghan law enforcement officials want for the most basic resources to conduct criminal investigations and trials.

What is urgently needed is the commitment by Afghanistan's allies to expand training for the country's police, prosecutors, and judges in all of Afghanistan's provinces. Much of this training can take place on the ground in Afghanistan where the current efforts of brave DOJ Attorneys, JAG officers, US Marshals, DEA agents, and State Department lawyers are having a positive but limited impact. Other training, such as recent intensive programs for prosecutors, women judges and defense lawyers, sponsored by the Public-Private Partnership for Justice Reform in Afghanistan, can continue to take place in the United States.

The physical infrastructure of justice must also be re-built. Afghanistan does not have enough prisons to house the insurgents and narco-traffickers that it detains. Many existing jails are not secure, as demonstrated recently by several high-profile jail breaks. These prisons also lack basic facilities necessary to humanely house inmates. Many towns and villages do not have court houses, police stations, or offices for prosecutors. Those government buildings that are being used for law enforcement usually do not have office supplies, furniture, or utilities. Prosecutors are in many cases unable to visit crime scenes because they do not have vehicles and, if they can get to the scene, do not have basic tools to lift finger prints, photograph the site or record witness statements.

Finally, salaries for the police, prosecutors and judges must be increased. The current salaries for such officials are generally hundreds of dollars below the basic cost of living threshold in Afghan cities. When officials do not make enough money to support their families, the temptation of corruption is almost irresistible. As we found in our visits to Afghanistan, corruption is much more a function of need than greed. Increased salaries have worked in the Afghan Army and will work to significantly reduce corruption in Afghan law enforcement.

An example of the impact that rebuilding the justice system can have is found in the well-funded, trained and staffed Counter Narcotics Tribunal in Kabul. The CNT operates out of a secure facility in Kabul complete with modern courtrooms and detention blocks. In 2007, the Tribunal had 278 convictions for narcotics offenses, up from 182 convictions in 2006. Final statistics for 2008 and 2009 are expected to confirm this upward trend. Despite the assassination of CNT judges, the Afghan judges and prosecutors there continue to do their duty with vigor as they reclaim their country from the Taliban and narco-traffickers.

The Afghan people can take their country back from the extremists, the narco-traffickers, and the corrupt officials who have saddled them with misery for years. Rebuilding the country's justice sector is a key to attaining that goal.

By Robert C. O'Brien and Stephen G. Larson
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