Sunday, April 27, 2008

City lawyer teaches law to Afghans - WISCONSIN STATE JOURNAL


By GEORGE HESSELBERG
608-252-6140
ghesselberg@madison.com


Erik Guenther opened his e-mail a year ago and found a mass mailing offering adventure, danger and unusual conditions to lawyers interested in a mentoring and education program abroad. Some travel and training required.

Oh yeah, the destination was Kabul, and the training was in how to recognize a suicide bomber.

Guenther, 31 and single, was employed by one of the leading defense lawyer firms in Madison, feted as a rising star in the state legal establishment and already a teacher in cutting-edge legal issues and a civil liberties expert.

Why not interrupt a promising legal career to teach baksheesh-avoidance in a land where assisting the defense means helping with a Kevlar vest?

Guenther, a criminal defense lawyer for Hurley, Burish & Stanton in Madison, recently ended a volunteer assignment in Kabul, Afghanistan, where he joined a unique program that tries to establish a "rule of law " in shattered justice systems.

If conjoining "rule of law " and "Afghanistan " seems a challenge, Guenther is now in a unique position to provide a limited explanation of justice in a territory where there seem to be more rusted Russian tanks than lawyers, defense or otherwise.

'For my country'

He went to work for the JSSP, or Justice Sector Support Program, which is mid-trickle in a trickle-down list of supporting agencies that begins public (State Department), goes private (PAE-HSC Inc.) and gets subcontracted (National Center for State Courts).

In the bureaucracy 's own terms, "the JSSP program seeks to develop and strengthen the institutional and operational capacity of the Afghan criminal justice sector institutions to perform their respective roles in delivering fair and effective justice services to citizens."

Guenther was not particularly restless or seeking new challenges when the e-mail arrived. He hasn 't been long in Madison and, in addition to his lawyer job, is the president of the board of directors of the American Civil Liberties Union of Wisconsin. So he was busy.

"I wasn 't really looking for something. I knew this work existed, but I was not familiar with it, " he recalled from his smallish, sparsely-decorated office incongruously located in the Hurley legal firm 's opulent new offices on the Square.

"It may sound kind of cheesy, but in a way I thought it was something I could do for my country, " Guenther said.

Guenther was looking at an established program with long-term goals on a topic dear to a lawyer 's heart: explaining a system of justice to people who want to learn about it.

In Madison, Guenther was able to find a unique counselor on that topic in John Vaudreuil, a U.S. attorney who has made 22 trips abroad on behalf of the Justice Department to teach courses in countries with emerging adversarial legal systems.

Vaudreuil, who has taught one-week sessions in Albania, Macedonia, Uzbekistan, Georgia, the Mideast, the Czech Republic and elsewhere, thought Guenther to be a fine fit for the program.

Few defense lawyers

After the usual vetting and profiling and permission to take a leave from lawyering here, Guenther made it to training in Virginia last September.

He got lessons in non-courtroom-related defensive tactics, with serious repercussions for anyone not paying attention: what to do in hostage situations, how to disarm someone who is pointing a gun at you and how to determine what sort of weapon it is. There was also training in combat driving, the consequences of suicide bombing and even the unspoken signals used by the security team protecting you.

"We wrote our own obituaries, " he recalled.

Bunked with the lawyer team in a new compound in Kabul, Guenther settled in to a regimen of security -- provided by both private and military units -- and setting up training and mentoring of legal system workers: lawyers, prosecutors, judges, correction officers and others.

The diversity was not only in profession, but in experience. Some Afghan lawyers have been to law school, some judges are simply old wise men with no legal training, and illiteracy is a significant problem, Guenther said.

There are few defense lawyers in the country, he said.

"There are a fair amount of lawyers working for the government, mostly, " he said. "There are few private practice attorneys, though the idea of a criminal defense lawyer is fairly new. "

Also little understood were concepts of active cross examination, challenges to detention, even the right to having a defense lawyer, though the Afghanistan Constitution guarantees it.

"There are people in jail who do not know what a defense lawyer is. "

Nor was there an organized public defender system.

Guenther and his group allied with the Legal Aid Organization of Afghanistan, which he described as "people fighting the good fight. "

Americans welcome

Guenther may have been teaching the rule of law, but he was also quickly learning the back doors of a system that is already in place. He was also learning that danger is always present, especially for foreigners. During his tenure, a terrorist bombing in January of a hotel popular with journalists and diplomats was a bloody reminder of that reality.

The irony was that, in general, Guenther and his colleagues were well-accepted.

"Yes, you don 't really get that from the media (which) gives the impression that there are terrorists hanging out all over the place. Most of the people I talked with hated the Taliban. Everyone has horror stories about life under the Taliban. Kids wave to you, and a fair number of people recognize you are there trying to do some good, " Guenther said.

He describes the Afghans he met as good-humored and, "like everyone else, trying to get along in the world. America and Americans are very well received. "

On a professional level, Guenther said the program he worked with and the concepts of defense lawyering were well received by most, especially police and often not judges.

"Police like the idea of a defense lawyer. Because it is easy to get falsely accused, or come up for false allegations, " defense lawyers are a credibility buffer for police.

Judges, however, "were less accepting because they couldn 't as easily approach the accused for bribes, " Guenther said.

Judges also would try to call cases without any lawyers present, a process not allowed under the constitution. Lawyers would hire runners to post at courthouse doors to keep track of the schedules.

Attributing the widespread corruption in the legal system to very low wages, Guenther said bribery -- or baksheesh -- exists on two scales. The smaller-scale bribes are used for daily requirements, such as changing a court date or schedule. The larger-scale bribes can make a difference between being set free and going to prison.

Learned a lot

After six months and a safe return, Guenther is back into the defense lawyer schedule.

In Afghanistan, he said, "I learned a lot more than I taught. It gave me an appreciation for how all the pieces in the justice system matter. "

In private, there was an inevitable reference to the irony of the presence in Afghanistan of American law.

"They 'd ask, what are you talking about (with rule of law)? You 've got Guantanamo Bay, and extraordinary rendition (secret transport of suspected terrorists)? Those are fair questions. What I can talk about is one-on-one diplomacy. My clients get constitutional guarantees, and this is what happens if we all play fair. You have to be an ambassador every day, " he said.

That was also the message he got initially from Vaudreuil, who said "you not only see the world in ways few others get to see it, you see the furnace of the world, and you are meeting people who want to succeed, people who care.

"The goal we share, " said Vaudreuil, "is that we want a system that works fairly. "

Will this program have any effect?

Maybe in 15 to 20 years, Guenther said.

"For this to have any chance for real success, I think it will take a steady commitment by the international community for that length of time. "

There are signs, however, that the work is valued.

If there was an indelible moment, Guenther said it was at a training session where the American lawyers were mobbed by attendees.

"You would have thought we were giving away rock concert tickets, " Guenther said.

What they had, however, was even more valuable and rare: complete written sets of Afghan laws.