Afghanistan's U.S.-Funded Counter-Narcotics Tribunal Convicts Nearly All Defendants, Records Show
The Counter-Narcotics Justice Center, which was completed in 2009 with U.S. support, houses the only court to handle major narcotics crimes in the country. It has a conviction rate of nearly 98 percent, which one defense advocate calls "absurd."
KABUL, Afghanistan -- On a recent Tuesday morning, Ahmad Kazim, a 29-year-old Iranian, found himself sitting in a suspect box in a white-walled room, awaiting a trial for drug trafficking.
Three months ago, Kazim was busted driving across the border from western Afghanistan to Iran, in a car stuffed with more than 28 kilos of opium. Kazim says he had no idea it was in there: A friend had asked him to drive some bags of rice across and he never inspected the packages. Prosecutors said the drugs were concealed in dozens of small canisters throughout the car, indicating obvious planning.
Because the contraband weighed more than 10 kilos, Afghan law mandated that Kazim's case be transferred across the country to the only court in the nation that deals with major narcotics cases, the U.S.-funded Counter-Narcotics Tribunal, in Kabul.
"I don't feel good," he told The Huffington Post from his seat in the courtroom. He looked to the sky and offered a meek smile. "Only God knows what will happen to me today."
Predicting Kazim's fate, however, was much simpler than that. Internal records show that nearly 98 percent of defendants at this court are convicted.
For the next 40 minutes, the judge discussed the facts of the case with the prosecutor, who read out a sheet of charges, and a private defense attorney, who offered a counter-narrative and pleaded for leniency from the court. No evidence was introduced, no witnesses were called, and Kazim, who spent the whole trial sitting shell-shocked, was never invited to speak. Then, the court adjourned.
Fifteen minutes later, word trickled out to the defense lawyer and Kazim's brother, waiting in the hallway: Kazim had been found guilty. He would spend the next 17 years in the feared Pul-e Charkhi prison in eastern Kabul.
This is justice at the Counter-Narcotics Tribunal, part of Afghanistan's newest and most modernized law-and-order facility, the $11 million Counter-Narcotics Justice Center (CNJC), on the edge of town. Dreamt up and financially supported by the Americans and Brits -- although technically it is now "Afghan-led," a term that currently encompasses a wide range of actual responsibility and authority here -- the center was designed to handle every aspect of the investigation, detention and prosecution of major drug crimes, and thus circumvent Afghanistan's notoriously corrupt and leaky judicial system. According to the U.N., the vast majority of the world's opium, the main component of heroin, is derived from Afghanistan, and American military officials have deemed counteracting it a major strategic imperative of the mission.
But in the seven years since the counter-narcotics court started operating with U.S. support, its results have been deeply mixed. Afghan and Western officials proudly point out that thanks to the tribunal's "robust" handling of the law, the CNJC has sent hundreds of drug traffickers to prison, mainly to Pul-e Charkhi, and has done so with almost no hint of corruption or malfeasance.
"This center is the one place in Afghanistan where there is no hanky panky," said Ahmad Khalid Mowahid, the spokesman for the court. "Everything is transparent and honest."
Indeed, the strict rules of the legal process for drug crimes offer little room for improvisation: Any person who is arrested with more than 2 kg of heroin, 10 kg of opium, or 50 kg of hashish must be sent to the CNJC in Kabul for investigation. Prison terms are nearly as inflexible: Almost everyone gets between 15 and 20 years, although judges can grant reductions if the defendant provides information that leads to further arrests.
But over the past few years, defense lawyers and even some American officials say that the high percentage of defendants found guilty is becoming unnerving.
The conviction rate for drug offenses in the American judicial system is also very high-- 93 percent for federal cases in 2006 -- but that is largely owing to plea bargains (typically about 90 percent of all convictions) and the ability of state and district attorneys to use discretion to drop cases that don't merit prosecution. Judges also regularly grant reduced sentences to lesser offenders.
However, in a system where there is virtually no leeway for police or prosecutors to drop cases that are too small or poorly evidenced, defense attorneys say the high conviction rate means that just about every suspect who arrives at the court ends up in prison for a long time.
"The conviction rate is absurd," said Kim Motley, an American defense lawyer who several years ago started a second career defending foreigners from specious charges in Afghan courts. "That court is not on the up and up."
According to data produced by the CNJC, in the most recent Persian calendar year (March 2011 to March 2012) the center received 817 suspects and sent 788 defendants to trial. Of those, 768 were convicted (97.5 percent) and 20 were acquitted "due to a lack of evidence." Twenty more were released by an appeals court.
The numbers for the year before were very similar: The center saw 631 suspects, sent 649 defendants to trial (new defendants are often added in the course of the investigations), and 621 of those defendants were convicted (95.6 percent). Twenty-eight were acquitted in the primary court, and another 20 in the appeals court.
"Everyone is afraid of being accused of being corrupt, so they just pass the cases along," said one American adviser who is familiar with the CNJC's workings and asked to remain anonymous. He conceded that the conviction rate was "very high."
"We're working with the Afghans on that," he added.
U.S. State Department and Department of Justice officials declined numerous requests over the past two weeks to make an official available to discuss the CNJC. But in response to written questions, a U.S. Embassy official defended the criminal justice system, saying that public trials are usually just the last step in an investigative process that involves close review of an evidence file by the judges.
"We will not comment about the conviction rate statistics," the official's statement added.
But Motley says that while defendants do have certain rights -- to speak in court, to demand that evidence or witnesses be produced -- the defendants and their lawyers rarely seem to be aware of this.
"Afghan lawyers usually don't do that because they don't know to exercise these rights," she said. "What you'll usually see in court is the defense attorney talking to prosecutors about minimizing sentencing, not actually investigating. You'll be lucky if you see everybody has a defense attorney -- more often, it's five people with one defense attorney, not five people with five attorneys."
The Department of Justice has a program at the CNJC to mentor the prosecutors and judges, but there is no equivalent one for defense attorneys, officials say.
"DOJ is fully supportive of a competent, committed defense bar," the embassy official wrote. "DOJ has helped those who are advising the defense bar with materials and advice." But the official also acknowledged that the department's "primary role" is "the education and the development of the skills of the prosecution service in Afghanistan."
Meanwhile, despite a handful of major busts and high profile cases, the CNJC appears to handle mostly smaller-scale cases -- and there are no provisions in the law to allow the expediting of major cases, or the shelving of more insignificant ones, owing largely to the fear that flexibility would lead to corruption.
"Because it was filled with low-profile detainees, the Center did not have any available detention cells to hold mid- and high-profile drug traffickers," the report continued, counting 55 detainees in the prison at the time.
A few months later, in response to the report, the DOJ said that the number of high-level detainees at the center had risen to three.
Given the nature of the proceedings, and the minimal fail-safes that seem to be in place, an inordinate amount of the burden for the final disposition of drug cases inevitably falls to the first people who encounter a suspect, most often the Counter Narcotics Police of Afghanistan (CNP-A).
During a visit to Helmand Province, a southern region of the country that is one of the centers of poppy growth and western counter-narcotics operations, HuffPost was told that British advisers to the specialized unit had never seen the force decline to forward a case because it was deemed too insubstantial or the evidence was too weak.
The high conviction rate at the court, one British adviser said, constituted a "positive credible threat [to drug dealers] because it means that if you end up in the hands of the CNP-A, you're probably in trouble." (He also called the conviction rate at the CNJC "incredibly high.")
Base corruption and malfeasance may have been weeded out at the court in Kabul, but, according to the adviser, direct western oversight of the CNP-A's handling of smaller cases is minimal, and while he might "glance over evidence packs at times," there is little by way of a thorough mechanism for ensuring that the right suspect is being sent to Kabul.
The adviser also acknowledged that some of the lower limits for the court's jurisdiction, especially 10 kilos of opium, were a fairly common amount for average poppy farmers to possess.
"I would suggest that's probably a low figure, your average field," he said. "We send a lot of people up [to Kabul] who are not medium- to high-level opium dealers -- just your average farmer who stored up a bit of opium."
In Ahmad Kazim's case, there was no evidence introduced at the trial to even attempt to suggest that he was part of a major gang, or that he was a repeat offender.
Outside the courtroom that Tuesday, after the sentence was handed down -- it was not announced publicly -- Kazim's defense attorney, Mohamed Saeedi, said that justice had not been served.
"Everybody is convicted in this court," he said. In three years of private defense practice, Saeedi said, he has tried about 100 cases at the CNJC, and won acquittals in 10 of them.
"The lawyers here always say, 'We can't do anything wrong because the foreigners are always watching us,'" he said. "But they are doing it wrong. And the people blame the foreigners for this court system -- they say that the foreigners have brought it to us."
Kazim's older brother, Ali, who had traveled to Afghanistan to watch the trial, sat nearby in a daze.
"I had no idea what to expect coming here today. My heart was pounding in my chest all morning," he said, as he waited to learn if he could visit with his brother once more before the incarceration. "The court is so much harsher here than it is in my country."