Assistant DA returns from Afghanistan

July 09, 2006|by DON AINES


One of the hallmarks of democratic governments is a functioning legal system, but what constitutes a justice system in Afghanistan bears little resemblance to what Westerners have come to expect.

The country combines aspects of Western law with tribal and religious legal traditions, said Franklin County Assistant District Attorney Matt Fogal, who recently returned from a six-month assignment in the Central Asian country.

"My duty was as a mentor to the attorney general of Afghanistan," said Fogal, 34, a captain in the Pennsylvania Army National Guard.


As a liaison between the Combined Forces Command and the Attorney General's Office, Fogal said he worked on detainee and counternarcotics issues, and on an assessment of the country's criminal justice system.

"I was bummed I wasn't out in the weeds with the SF (special forces) bubbas," said Fogal, who was to have advised special forces on wartime legal issues.

Fogal had been assigned to the Combined Joint Special Operations Task Force, but his background as a prosecutor resulted in his spending most of his tour living and working in the nation's capital, Kabul.

"They have a substantive criminal law from the 1970s" adopted in the years before the Soviet invasion of 1979 and subsequent takeover by the Taliban, who were ousted from power in 2001, Fogal said.

The country also has a procedural criminal law drafted by the Italians, he said.

While that formal legal structure would be recognizable to Westerners, there also is "an informal system which is somewhat pragmatic, given the geography" of the mountainous region, Fogal said.

Because there are few judges or lawyers in the country, many disputes are settled by Jirgas, a panel of tribal elders that hears civil and criminal complaints.

"Some of the remedies we in the West don't really care for," Fogal said. In some instances, he said, "they'll exchange women as restitution."

Although tribal law has some religious influences, Fogal said it is not to be confused with Islamic law, or Shari'a, the body of law derived from the Quran and other religious sources that often falls under the jurisdiction of the formal legal system.

While Fogal was in Afghanistan, the case of Abdul Rahman received worldwide publicity when he faced the death penalty under Islamic law for converting to Christianity. It was not a violation of a criminal statute, but a religious violation, Fogal said.

Through the intervention of the international community and maneuvering within the country's legal system, Rahman eventually was declared mentally unfit for trial and left the country for Italy.

"It's a good example of how the legal system has all these moving pieces," Fogal said.

Establishing a legal system in Afghanistan is "a tall order," Fogal said. While Americans often complain about the influence of lawyers, Afghanistan had fewer than 100 criminal defense attorneys for a country of approximately 25 million people, he said.

By contrast, there are approximately 125 full-time practicing attorneys just in Franklin County, said Carolyn Seibert-Drager, the executive director of the county Bar Association.

Fogal spent most of his time in the capital city, but did see other parts of the country. There were instances of roadside bombs and insurgent rocket attacks in Kabul, and he heard small arms fire while in Jalalabad, but did not experience "anything that put me in real danger."

It is a war zone, however, and soldiers wore body armor while being driven from their quarters to offices by civilian drivers in unarmored vehicles.

Since joining the District Attorney's Office in 2002, Fogal has found himself away from the office for extended periods of time to serve with the National Guard. In 2003-04, he was deployed to Kosovo in the Balkans, and last year, he was sent to New Orleans following Hurricane Katrina.

"They don't send me to nice places," he said.

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