US: New Legislation on Military Commissions Doesn’t Fix Fundamental Flaws - Human Rights Watch

Proceedings to Try Detainees at Guantanamo Remain Substandard

October 8, 2009

The US Military Commissions at Guantanamo Bay.

2008 Reuters

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More Human Rights Watch reporting on the military commissions at Guantanamo Bay

Special feature on military commissions trials

Tinkering with the discredited military commissions system is not enough. Although the pending military commissions legislation makes important improvements on the Bush administration’s system, the commissions remain a substandard system of justice.

Joanne Mariner, Terrorism and Counterterrorism Program director

(New York) - Draft legislation on military commissions fails to remedy the system's serious flaws, Human Rights Watch said today.

The amendments to existing military commissions legislation - to be called the Military Commissions Act of 2009 - were included in the conference report on the National Defense Authorization Act (NDAA). The new rules are expected to be passed by Congress this week.

"Tinkering with the discredited military commissions system is not enough," said Joanne Mariner, Terrorism and Counterterrorism Program director at Human Rights Watch. "Although the pending military commissions legislation makes important improvements on the Bush administration's system, the commissions remain a substandard system of justice."

The Military Commissions Act of 2009 revises the procedures governing the use of military commissions to try alien "unprivileged enemy belligerents" (individuals labeled "unlawful enemy combatants" during the previous administration). The draft legislation addresses some of the worst due-process failings of the Military Commissions Act of 2006.

Notably, the bill limits the admission of coerced and hearsay evidence and grants greater resources to defense counsel. The revised system would still, however, depart in fundamental ways from the trial procedures that apply in the US federal courts and courts-martial. Nor does it satisfy the constitutional and policy concerns set forth by the Obama administration in recent months. It does not, for example, include a sunset clause to set a time limit on military commission trials, a provision the administration had specifically requested.

Human Rights Watch warned that as the latest version of the military commissions created by the Bush administration, the revised tribunals would be viewed globally as unfair, harming international cooperation on counterterrorism. It noted that trying only non-US citizens before the commissions would raise further concerns about fairness and discrimination. And it pointed out that by allowing child suspects to be prosecuted in military proceedings, the US was bucking a global trend to end this practice.

The very purpose of the military commissions is to permit trials that lack the full due-process protections available to defendants in federal courts, Human Rights Watch said. Tinkering with the procedures of tribunals created from scratch forfeits the benefits of using long-established civilian criminal courts whose procedures and protections have been tried and tested via years of litigation.

The federal courts have shown themselves to be fully capable of trying terrorism cases while protecting intelligence sources and the due-process rights of the accused. In the more than seven years since the military commissions were announced, only three suspects have been prosecuted, while the federal courts have tried more than 145 terrorism cases during the same period.

Unlike the federal courts, which enjoy constitutional protection against executive pressure, the commissions lack independence. Indeed, the previous commissions were highly susceptible to improper political influence, leading several military prosecutors to resign in protest.

Human Rights Watch also raised concerns about the overbroad scope of the commissions' jurisdiction, emphasizing that civilians should not be prosecuted before military tribunals. The administration has continued to deem terrorism suspects unconnected to armed conflict to be law-of-war detainees, and the new legislation even allows alleged supporters of terrorism to be tried in military proceedings.

In light of President Barack Obama's promise that the federal courts would be the first option for trying detainees, Human Rights Watch called on the Obama administration to prosecute terrorism suspects currently held at Guantanamo in the federal courts.

"Anyone responsible for terrorist activity against the US should be tried in the regular courts, whose verdicts, unlike those of military commissions, are recognized both domestically and internationally as legitimate," said Mariner. "Any verdict obtained in the military commissions will be controversial and subject to reversal on appeal."

Afghan Men Tricked Into U.S. Trip, Detained - washingtonpost.com

Image by DVIDSHUB via Flickr

Possible Witnesses Have Been Forced To Stay Since 2008

By Carrie Johnson
Washington Post Staff Writer
Saturday, October 10, 2009

For Ziaulhaq, an Afghan driver who had never ventured outside the borders of his war-torn country, the prospect of a trip to the United States seemed like the adventure of a lifetime. He pleaded with his bosses at a contracting company near the U.S. air base at Bagram to include him on the whirlwind trip to Columbus, Ohio.

But the all-expenses-paid travel -- billed as a conference to honor Afghan businesses -- turned out to be an elaborate ruse to draw Ziaulhaq and two co-workers to the United States. Prosecutors wanted them here as witnesses in a bribery case against U.S. servicemen and some Afghan contractors.

And what began as a celebration in the summer of 2008 has become an agonizing extended stay for Ziaulhaq, who is not accused of any crime but has been forced to stay thousands of miles away from his sick wife and six children at home. Ziaulhaq and two countrymen have spent more than a year confined to a hotel in a drab industrial area near Chicago's sooty Midway Airport.

Their saga highlights anew the power of a controversial U.S. statute that allows prosecutors to hold people, without suspicion or criminal charges, as material witnesses in ongoing investigations. After the Sept. 11, 2001, terrorist strikes, the Bush Justice Department used the law to round up Muslim men, giving rise to a lawsuit against then-Attorney General John D. Ashcroft that experts say could make its way to the U.S. Supreme Court. And at least one key Senate Democrat has tried, to no avail, to introduce more safeguards into the material witness process.

Authorities say they want Ziaulhaq's testimony in their prosecution of a bribery scheme at Bagram, an Air Force base 27 miles north of Kabul, in which servicemen accepted kickbacks from Afghan contractors. The servicemen, according to prosecutors, packed the cash in boxes that they sent home by way of the U.S. Postal Service.

But the little-noticed case has been beset by delays and confusion. It has drawn increasingly sharp complaints from lawyers and an Afghan diplomat who say that Ziaulhaq, 39, is a casualty in the U.S. government's efforts to crack down on corruption and military contracting fraud in Afghanistan and Iraq.

Justice Department officials declined to comment on the bribery case, but they noted that the lengthy detention was approved by a federal judge.

Ziaulhaq, a slender former veterinary student with a scraggly black beard, came to work as an office aide and a part-time driver for the contracting company because of family ties. He says he had no contact with the military and knows nothing about the case.

"I made him available to both sides and he doesn't know anything," said Michael J. Falconer, a court-appointed attorney for Ziaulhaq, who uses just one name. "Unless there's some surprise waiting in the wings, he won't be a material witness because he's got nothing to say that's material. . . . This poor guy just got swept up in the mess."

Ziaulhaq and his confederates -- Bashir Ahmad, 30, and Kiomars Mohammad Rafi, 27 -- had been employees of companies that provided concrete security barricades and other materials to the U.S. military at Bagram. Now they spend their days attending prayer services and cooking in their small kitchenette of their hotel, where monthly rates range from $2,000 to $3,000. The hotel sits next to a $3 carwash and across the street from an industrial strip occupied by discount-store distribution centers.

They rarely venture out and are subjected to nightly curfews and calls from probation officers. Prosecutors secured court permission to detain the men as flight risks, arguing that they might never return for trials if they were allowed to go home. A few months ago, however, the Afghans were released from electronic monitoring.

At the same time, some of the men who have been indicted in the case have successfully petitioned a judge for permission to travel to the gym, study English and attend a funeral and a family reunion in Wisconsin, court records reflect.

"It's just terrible," Falconer said. "They do not have any identification, so they can't do anything. They can't even go to a health club or cash the checks they get for witnesses' fees."

Nearly a year ago, court-appointed lawyers exhorted a federal judge to schedule depositions, giving the Justice Department and defense attorneys a chance to question the three witnesses so they could return to their families. But the judge deferred a ruling. Another bid in June to hold an "emergency" deposition for Ziaulhaq passed without action.

A letter to the Justice Department by Afghan Ambassador Said T. Jawad expressing his concern about "the lengthy and unwarranted detention of three Afghan nationals" received a reply but did not accelerate the pace.

Prosecutors and defense lawyers are blaming each other for the delays.

"Since the return of the indictment, the United States has sought to expeditiously move this case toward resolution," Justice Department antitrust division chief Christine A. Varney wrote to the ambassador in August.

The Justice Department does not control the trial date in the complicated case, a spokeswoman added. But court-appointed attorneys for the witnesses and lawyers for the Afghan contracting companies are questioning why prosecutors lured the Afghan men into the country, only to wait nine months before expanding the criminal charges in the case and adding new defendants, all of which meant further delays.

The Afghans are hoping that a court proceeding later this month could finally pave the way for their return to their homeland.

"He is not a criminal," said Zuriden, Ziaulhaq's brother, in a telephone interview from Afghanistan, conducted in English. "More than one years he is in America. I don't know what is his problem. There is not anyone to help him."

Adding to the mystery of Ziaulhaq's long confinement is a recent statement in a court filing by prosecutors that they would need to interview him for only an hour, raising questions about how critical his testimony is to the case. The other two men detained as material witnesses may have more relevant information because they had more contact with people at Bagram, according to lawyers involved in the matter.

The path to Chicago was a serpentine one for Ziaulhaq, Ahmad and Rafi. They arrived at O'Hare International Airport on Aug. 25, 2008, after 36 hours of flights that took them from Kabul to Delhi and Tokyo before they landed in Chicago. The men -- accompanied by some of their supervisors who have been charged with bribery and other crimes -- thought they were en route to Ohio, where they would be feted in an event marking the seventh anniversary of Operation Enduring Freedom at a dinner aimed at "honoring the past and building the future."

"We have been very busy here gearing up for what promises to be a great conference and chance to honor those of you who have helped us make such great strides in building the future of Afghanistan," wrote a man identifying himself as a "special programs coordinator" for the Defense Department in a 2008 e-mail to the Afghan contracting company.

Just days earlier, prosecutors had secured grand jury indictments against several military men, Afghan business owners and their companies for allegedly paying and accepting bribes to grease the skids for contracts at Bagram.

Court documents said the material witnesses had each worked for the contractors who had been charged and had "gained information, engaged in conversations and/or performed acts that constitute . . . evidence against one or more" of the defendants.

Three of the U.S. servicemen pleaded guilty to bribery last summer. Air Force Master Sgt. Patrick W. Boyd, who doled out contracts for concrete bunkers and asphalt paving, admitted to accepting $130,000 in bribes, prosecutors said in court papers. The government pegged its losses in the case of former National Guard Maj. Christopher P. West at $400,000 to $1 million. A friend of West's pleaded guilty to receiving stolen property -- at least $100,000 that West mailed from Afghanistan in 14 boxes.

The case against the foreign companies and the four Afghan men who owned them continues.

Gina Talamona, a Justice Department spokeswoman, declined to disclose exactly how much authorities had paid to keep the three witnesses in hotels, although prosecutors last month called it an "extraordinary effort and expense." The men earn $88 per day to cover witness fees and incidental expenses, according to one source. But an attorney for Ziaulhaq said that cashing the government checks is "cumbersome" because his client does not have an identification card to show the bank teller.

Talamona noted the Justice Department's efforts in an ongoing multiagency task force to crack down on international contract corruption. The department's antitrust division brought 11 cases last year alleging criminal fraud schemes in Iraq and Afghanistan.

"How long a material witness will be held is determined by the court," she said, adding that, when it is possible, the department will ask a judge to expedite a witness's release using a deposition to gather the testimony.

Chuck Aron, an attorney for Ahmad, said he does not discuss pending cases. Matthew Madden, an attorney for Rafi, declined to comment.

"These people have no constituency," said Kirby Behre, a District-based lawyer at the Paul Hastings firm who is representing Assad John Ramin, an owner of one of the companies named in charges. Ramin denies the criminal charges against him.

"This is clearly abusive, but perhaps because these are Afghan nationals and not Americans, nobody seems too concerned about the treatment these men are receiving," Behre said.

Staff writer Kari Lyderson in Chicago contributed to this report.

When Culture Trumps Law - Nation

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In November, Adriana gave birth to a child she never wanted and spent two months fighting not to have. The first time Adriana was raped, on January 29, 2008, a stranger forced her into his car and drove to a parking lot near the airport in João Pessoa, the capital of the state of Paraíba in northeast Brazil. The stranger's gang rented a house on her street. The second time, he drove a different car and threatened to go after her family if she told anyone what had happened.

Adriana, whose name has been changed to protect her privacy, stayed inside her home for four months. Each day, her attacker passed by the window, holding two pointed fingers to his head to remind her of what she stood to lose. When Adriana, 26 and a virgin before she was raped, realized she was pregnant, she knew she wanted an abortion, but she didn't dare ask anyone in her family for help. She knew her evangelical father, in whose house she lived, would tell her to have the child, and that her mother would be ashamed. So in early June, when the gang finally left the house on her street and moved on, Adriana went to the local public hospital.

Under Brazil's penal code, abortion is a crime except in cases of rape or direct threat to the mother's life. When Adriana went to the public maternity hospital, Instituto Cândida Vargas, on June 10, she explained that she had been raped, estimated that she was nineteen weeks pregnant and asked for an abortion. The receptionist sent her to the hospital psychologist, who told her that women have a responsibility to have children. The doctor held up the stethoscope so she could hear the baby's heartbeat, told her the hospital only does abortions until twelve weeks and sent her away.

Adriana's case received far less attention than that of the 9-year-old girl who received an abortion in Recife, a nearby city in the state of Pernambuco. In early March, the Catholic Church excommunicated two doctors for performing the abortion, which fell under both exceptions to the penal code: the girl had been raped by her stepfather, and her hips were too narrow to safely give birth to the twins she was carrying. (Following an international uproar, the Church withdrew the excommunication.) The doctors agreed to the procedure, but in an interview on Brazilian national television the next day, Archbishop José Cardoso Sobrinho of Recife announced that when government laws and the "law of God" conflict, "the human law has no value."

Adriana knows what it means for a law to lose its meaning.

Adriana didn't know that the Brazilian Ministry of Health's recommended limit for abortions--the one cited in hospital policy--was twenty-two weeks, not twelve. She didn't know the law entitled her to an abortion and required the public hospital to perform it. She didn't know that within the past two years, João Pessoa, ten minutes from her house in Bayeux, a city of 92,000, established a government commission on women and opened a domestic violence center. Opposition to abortion in Brazil, the nation with the largest Roman Catholic population in the world and a growing evangelical movement, disproportionately affects women who don't have money for private abortion clinics or a sense of entitlement to services from public institutions. Adriana might have given up if a nurse hadn't suggested she visit a local feminist organization called Cunhã. Cunhã staff immediately brought her to the dignified purple-and-white house in the center of João Pessoa, where the government-funded domestic violence center opened in September 2007.

When Adriana arrived at the center in June, having been turned away by the hospital, it looked as if the law was one thing she had on her side. Within a few hours a team of dynamic lawyers, psychologists and other staff members decided that Adriana would go to the police station and report the rape, and someone would go with her. She would find a lawyer and collect the necessary paperwork. She would go back to the hospital and demand an ultrasound. And she would bring this information to a judge, who would issue an order for the abortion to which she was legally entitled.

Regina Alves, a psychologist at the center, insists that when it comes to working with a victim of violence, "what matters is what she says." Though Adriana arrived at the center without an ultrasound or proof that she had been raped, the staff immediately contacted hospitals in nearby cities to find out their abortion policies. Lila de Oliveira, a tall and outspoken social worker from the center, stood beside Adriana through weeks of testing and waiting. Adriana and Lila went to the public defender's office to ask a judge to intervene, then started putting together a file with an HIV test, a medical report and a police notice, hoping the evangelical judge put in charge of Adriana's case would order the hospital to carry out an abortion.

By the time the tests and documentation the judge ordered came back from the police station and the hospital, it was June 30. I went with Lila and Douraci Vieira dos Santos, the head of the government commission on women, to meet Adriana at the bus stop and bring her to the hospital. Adriana came from tutoring students in her home and planned to go right back to teaching as soon as they set a date for her abortion. She was poised and steady next to me on the green couch in the bare white room, Lila on her left clutching the blue plastic folder of documents. Having the right documents takes on a certain urgency in a hospital where reported abortion protocol changes from one day to the next, and in a country where without proof of rape or threat to maternal health, victims and doctors who carry out abortions can be imprisoned for as long as three years.

Hospital director Eduardo Sergio swept in and said the fetus was 722 grams, too heavy to abort. The Ministry of Health recommends against aborting fetuses above 500 grams. After exceeding this weight, an aborted fetus is likely to come out breathing on its own, in which case the hospital is legally bound to do everything in its power to keep the premature baby alive. Though Douraci and Lila had begun putting together funding to fly Adriana to a hospital in another city, even doctors in Recife and São Paulo said it was too late to carry out an abortion. Adriana crumpled, almost imperceptibly, but she was sitting next to me and I could feel her shaking. She wrapped her arms around her stomach and spoke, audibly but quietly. "I don't want this inside of me. Why did you have to grow? I didn't want you to grow."

No single person stopped Adriana from having an abortion to which she was legally entitled. Adriana was forced to give birth to her rapist's child because of backs turned and services denied or delayed that together pushed the abortion off until it was too late. Between June 11 and June 30, Adriana and a representative from the center went to the hospital five times, the police station five times and the public defender's office three times. "There's an excuse in every case," Lila explained dryly, on the day the hospital staff announced that it would take a month to produce the results of a medical exam needed to show evidence of rape, and the policemen were on lunch break well into the afternoon.

Adrienne Germain, president of the International Women's Health Coalition, traces the problem to Brazil's restrictive abortion laws and lack of infrastructure for enforcing the legal exceptions that do exist. "Most people perceive, in Brazil and elsewhere, that abortion is illegal," Germain said. "But if it's legal for any reason, it must be provided safely. Every medical institution should provide training; every site should have equipment and personnel to provide a safe procedure."

In João Pessoa, not all professionals know the law, and those who do know don't necessarily follow it. When Douraci went to Cândida Vargas hospital asking for documentation of the protocol that limits abortions to twelve weeks, Dr. Sergio told her the standard they followed was twenty-one to twenty-two weeks, not twelve. Adriana had been eligible for an abortion the day she set foot in the hospital.

As director of the maternity hospital, Dr. Sergio has overseen abortion services at Cândida Vargas since 2005, when city government responded to pressure from the local women's movement to incorporate abortion services into João Pessoa's public healthcare system. Until then, women like Adriana could go to a private clinic or try to find care in another city. Dr. Sergio told me he wasn't at the hospital when Adriana first arrived. If he'd been there, he said, he would have done the abortion right away, since doctors have to "be careful that our social and religious values don't interfere with our process of attending to women." Douraci insists that whether or not Dr. Sergio knew about Adriana's situation during her first visit to the hospital, she discussed the case on the phone with him that same week, when Adriana was less than twenty-two weeks pregnant and still within the recommended timeline for an abortion.

Adriana's case may seem to come down to technicalities like weeks and weight. But the cultural attitude toward abortion in Brazil is more deeply ingrained--and harder to change--than laws and numbers. The majority of abortions in Brazil are performed under illegal, unsafe conditions. Of the 1 million to 2 million Brazilian women who receive clandestine abortions annually, 250,000 end up in hospitals with complications resulting from the procedure. Reproductive rights activists had hoped that Luiz Inácio Lula da Silva, the leftist president elected in 2002, would introduce more progressive policies regarding women. In May 2007--a week after Mexico City legalized abortion through the third month of pregnancy--Lula identified illegal abortion as a public health concern because so many women die each year from them. Public health minister José Gomes Temporão questioned Brazil's conservative abortion law, particularly the legislated imprisonment of women who seek illegal abortions, and called for a national referendum on the issue. But in July 2008 a proposed bill to legalize abortion, on the table for seventeen years, was voted down by Congress, 57-4. Lula has appointed seven of Brazil's eleven Supreme Court justices. His most recent appointment, Carlos Alberto Menezes Direito, openly defends the notion of life beginning at conception, allying himself with at least three of Lula's six other appointments known for antichoice rulings.

Sixty-nine years after an amendment to the penal code made abortion legal in cases of rape, five of Brazil's twenty-six states don't have a facility that provides abortions. Even facilities designated for female victims of violence don't always support women's decisions. In 1985, Brazil established a network of all-female police stations designed to improve care for victims of rape and domestic violence. João Pessoa was the third city in the nation to open such a station, called a delegacia da mulher. Since Bayeux is too small to receive government funds for an all-female police station, Regina and Lila brought Adriana to the delegacia in João Pessoa. Though delegacias were designed as safe spaces for women to report crimes, Regina reported to her colleagues that "when they [delegacia policewomen] learned it was a case of rape and abortion, they didn't want to listen to what we had to say." Adriana then went to the police station in Bayeux, where she faced a line of policemen at the door, alerted to the case by their colleagues in João Pessoa and already prepared to turn her away.

Each doctor who examined Adriana told her to have the child. Finally she asked one of them, "And if you were in my place? What would you do?" The doctor didn't answer. He left the room.

When I asked Rosana de Lucena, director of the domestic violence center, why so many officials stood in the way of an abortion, she responded that "they don't want to grapple with this fear"--the fear felt by women like Adriana, who face family members who don't believe in abortion, and by public officials concerned about their careers. It's one thing to choose to work at a domestic violence center, Rosana explained, and "another thing to work at a hospital where suddenly you're told you're dealing with violence against women." Doctors, in particular, fear prosecution. Without proof that the mother's life is on the line or that a rape occurred, carrying out an abortion in Brazil means committing a crime.

"There's a large gap between the law and the application of the law," notes Mayor Ricardo Coutinho, the first mayor to require the local maternity hospital to provide abortion services. As mayor, he says, it's easier to change the laws than to change how people are treated in public facilities. Even in cases where abortion is legal, "the medical professionals are very reluctant because there exists a kind of professional terrorism. There's a lot of pressure on them because of efforts to characterize them as baby killers, as murderers."

Dr. Sergio sees the case as unfortunate but inevitable. He knows it could have turned out differently, but in his view each decision was necessary to protect Adriana's safety and the hospital's reputation. I met with him during his overnight shift. Women in a mix of street clothes and hospital gowns lined up outside his office, and he continued to usher them in and out as he spoke, stopping his conversation with me only to help a woman off the examining table and explain why she needed to stay in the hospital overnight. He told me that as head of the hospital, he was responsible for carrying out an abortion if the doctor on duty refused to do so. I asked when he had carried out this procedure, but Dr. Sergio didn't answer directly and instead explained why the responsibility fell to him. "In the same way that these women were victims and still have their rights and their liberties," he told me, "I can't force someone to carry out a procedure he doesn't believe in from a religious or social standpoint."

Efforts to fully legalize abortion, and to obtain abortions in cases where the procedure is already legal, take place against a strong current of religious opposition. At the national level, mobilized religious groups in Brazil's Congress are pushing proposals to recognize fetuses for tax purposes and create a national Day of the Unborn. The staff of the domestic violence center in João Pessoa work with women from all sorts of religious backgrounds; in almost every case, they told me, religion shapes a woman's beliefs on abortion and the way she is treated at home and in public institutions. The Catholic Church has a firm stance on abortion: any woman who has an abortion, or any doctor who aids in the procedure, is automatically excommunicated. The case of the 9-year-old girl in Recife shows that this is not an empty threat.

While each staff member at the domestic violence center is deeply invested in individual cases, as a team they've learned to take a long view and focus on crafting a model for a public institution that treats people with dignity and respect for their choices. In April, the women who worked on Adriana's case will meet with feminist leaders in two northeastern states, Rio Grande do Norte and Pernambuco, to build a regional coalition out of their many local initiatives. This follows a history of strong women's rights activism in Brazil. Brazilian women were the first in Latin America to introduce abortion information into medical school curriculums and among the first to develop underground abortion networks for poor women. In partnership with Cunhã and the government commission on women, the domestic violence center in João Pessoa used Adriana's case to hold the hospital accountable for repeated attempts to stop women from having abortions. Based on a report they submitted to the Ministry of Health about Adriana's case, the ministry removed Dr. Sergio from his position as director of the hospital; but he didn't lose his place as an influential physician until another rape victim reported that she, too, had sought an abortion at Cândida Vargas and was turned away.

In Brazil, the public battle for abortion rights--the one that makes it into international newspapers--is a legal one. But the less visible battles are equally important. Cases like Adriana's are battles to make the law mean something to people on the ground, and the people waging them have taken on more than a single doctor who refuses to do an abortion. They also confront what Douraci calls "the inequalities, the power of machismo, the violence and the silence" that shape women's lives in João Pessoa and throughout Brazil. When I interviewed Douraci during the week that Adriana began prenatal care and newspapers reported that Congress voted against a bill to legalize abortion, she insisted that simply enacting new policies for women "does not further the debate on gender relations in those women's lives." That debate takes place outside state legislatures: in the waiting rooms of domestic violence centers and in the hallways of public hospitals, where what the law says doesn't correspond to what the doctors do. Legal rights are put to the test in these waiting rooms and hallways, where people fight to turn rights on paper into rights in reality.

About Emma Sokoloff-Rubin

Emma Sokoloff-Rubin is a sophomore at Yale University and an associate editor of The Yale Globalist. Research support for this article was provided by the Thomas C. Barry Travel Fellowship.

Corporate Raiding Underlines Dismal State of Russia's Legal System

By Philip P. Pan
Washington Post Foreign Service
Thursday, August 13, 2009

MOSCOW -- When three of Russia's finest lawyers agreed to represent the investment fund Hermitage Capital, they thought they were taking on a routine tax case.

Then they uncovered evidence of a breathtaking crime: Top police and tax authority officials appeared to have quietly seized ownership of Hermitage firms and used them to arrange a $230 million tax refund.

Now, the lawyers themselves are in legal trouble. One has been jailed. The two others have fled the country. All three face charges that seem intended to discredit Hermitage and divert attention from the enormous theft.

Their plight highlights the hazards of practicing law in Russia's corruption-ridden courts despite nearly two decades of reforms supported by hundreds of millions in U.S. and European aid. Prosecutors and police continue to dominate the judiciary as they did in the Soviet era, but unrestrained by the institutions of the old Communist system or the checks of a genuine democracy, the opportunities for abuse have grown.

No crime illustrates the state of the legal system better than what is known as "reiderstvo," or raiding -- the takeover of businesses through court rulings and other ostensibly legal means with the help of crooked judges or police. The practice is so widespread that local media have reported what raiders charge: $10,000 to alter a corporate registry, $50,000 to open a criminal case, $300,000 for a court order.

Hermitage, once Russia's largest foreign shareholder with more than $4 billion in holdings, says it encountered a bold variation on reiderstvo: When raiders failed to seize its assets, they looted the Russian treasury instead, then went after the lawyers who caught them.

President Dmitry Medvedev, a lawyer himself, has called "legal nihilism" the main obstacle to growth in Russia and has condemned raiding as "shameful." But neither he nor his government has responded to Hermitage's pleas for help or the protests of the Moscow bar association and international legal groups.

In a statement last month, the Interior Ministry touted its success in solving the tax theft. But the money has not been recovered, nor have any officials been arrested. Prosecutors have charged only a convicted killer named on documents as Hermitage's new owner.

Courts in Cohorts

For years, Hermitage targeted corruption in the state enterprises in which it invested. In 2005, it upset someone in power, and its British chief, William Browder, was barred from entering Russia. As a precaution, the fund sold its Russian assets and moved most employees overseas.

Then, in June 2007, police raided its Moscow offices and those of its Moscow-based law firm, Firestone Duncan. Brandishing warrants for material about a Hermitage affiliate suspected of tax evasion, they confiscated much more. When one lawyer objected, police beat him so badly that he was hospitalized for two weeks, said Jamison Firestone, the American head of the law firm.

Three days later, Hermitage hired the prominent Moscow defense lawyer Eduard Khayretdinov.

A taciturn former cop and judge, Khayretdinov, 50, was among a pioneering generation who joined the bar in the early 1990s as lawyers first began to operate independently of the state. It was a hopeful move, he recalled, made as then-President Boris Yeltsin's reformers were trying to build an impartial judiciary.

Nearly two decades later, Russian lawyers are the embodiment of that incomplete task. Some are corrupt middlemen, pulling strings and delivering bribes. Others risk arrest and violence in pursuit of justice. Most try to avoid trouble, though figuring out how is more difficult than ever. If the party once controlled the courts, now the highest bidder often does.

Khayretdinov tried to make a difference. In a nation with a conviction rate near 99 percent -- higher, some say, than under Joseph Stalin -- he managed to win the release of five clients in 15 years. "I understood that our system was getting worse, but every time I prepared to speak in court, I honestly believed the court would hear me," he said.

In October 2007, he discovered that lawsuits had been filed in St. Petersburg against three Hermitage firms that once held shares of Gazprom, the state energy giant. Without telling his client, judges had issued more than $400 million in rulings against the firms.

Photographing each page of the court files, Khayretdinov realized that lawyers representing the firms had essentially pleaded guilty in every case. But Hermitage had never hired them.

In Moscow, Hermitage checked the government's corporate registration database and was astonished to discover that it no longer owned the subsidiaries. A business in Kazan, 400 miles from Moscow, was listed as the proprietor.

Complex Maneuvering

Raiding, a mix of extortion, identity theft and simple thuggery, has emerged as major problem for the Russian economy, where property rights remain clouded by the chaotic privatizations of the 1990s. A U.S. Justice Department official in Moscow has described it as "a new and sophisticated form of organized crime" that "poses a serious threat to foreign investors" and has even spilled into American courts.

In one high-profile case, the Norwegian telecom giant Telenor is battling an attempt to seize its stake in a Russian mobile operator after a Siberian court issued a $2.8 billion ruling against it. But smaller domestic firms are usually the victims. One veteran police official has estimated that as many as 10,000 takeovers occur annually but that fewer than 100 are prosecuted and result in convictions.

Raiding is difficult to investigate because it relies on police and judicial corruption and often involves complex legal maneuvering. Hermitage turned to Sergei Magnitsky, 37, a specialist in tax law at Firestone Duncan who was also a licensed auditor. "The best I ever saw," Firestone said.

To take ownership of the firms, Magnitsky concluded, the thieves would have needed original corporate seals and founding documents -- items that police had seized in the raids.

The lawyers suspected the involvement of Lt. Col. Artem Kveuznetsov, an Interior Ministry official who supervised the raids and had been poking around Hermitage bank accounts. He had no clear link to the lawsuits, but raiders often use criminal cases to smear their victims and obtain key documents.

On Nov. 29, 2007, Hermitage confronted Maj. Pavel Karpov, the officer supervising the tax probe, with its findings. The company says he blanched and motioned one of its attorneys to his desk. Apparently worried that his office was bugged, he typed a message: Kuznetsov had pressured him to open the inquiry.

Kuznetsov and Karpov referred a reporter's queries to the Interior Ministry, which did not respond to faxed questions.

Only one law enforcement agency opened a probe into Hermitage's allegations. But when Magnitsky showed up 10 minutes early for a meeting with its investigator last summer, Kuznetsov was in the office.

Looting the Treasury

Why would anyone go to the trouble of obtaining multimillion-dollar judgments against companies that no longer hold any assets?

The mystery stumped Vladimir Pastukhov, 46, a longtime Hermitage adviser and a law professor at the Higher School of Economics. "No one knew what the crime was, but it was clear that if we didn't immediately argue our case, Hermitage would be blamed for something," he recalled.

He and the others filed a series of court motions. Prosecutors responded by indicting Hermitage executives in absentia and disclosing that the powerful Federal Security Service, the domestic successor to the KGB, had initiated the tax inquiry.

It was Browder, the company's British chief, who first suggested that the raiders might be using the court rulings to erase profits on paper and apply for a huge tax refund. The lawyers were skeptical. Magnitsky noted that it often took years to get a refund in Russia.

But then they discovered that the firms had opened accounts at two banks that reported a spike in deposits afterward. With more digging, they confirmed that $230 million was deposited days after the companies applied for a tax refund. The money quickly disappeared overseas.

When Hermitage reported the fraud in July 2008, police went after the lawyers, summoning them to Kazan.

After speaking to police, Pastukhov concluded that he would be arrested if he went. "I used to believe that if you were persistent and targeted, you could get results, even in the Russian courts," he said after fleeing to London. "But I've changed my mind. I'll never step into another courtroom again as a Russian lawyer."

Khayretdinov was sure he could prove his innocence and hid in Russia for months. But then police accused him of improperly representing the stolen firms because Hermitage no longer owned them. He decided he had no hope in court and flew to London.

Magnitsky never considered leaving because he didn't believe he could be jailed for nothing, colleagues said. But in November, police charged him with helping a Hermitage firm evade taxes in 2001. His attorney said he didn't even begin working with the firm until 2002.

"They've told him that if he says bad things about Hermitage, they'll let him go," Firestone said. "But Sergei told them no. . . . He believes the only way that Russia gets better, the only way the law starts to work here, is if good people stand up for it."

Lawyer Leads Local Fight Against Illegal Immigration

By JULIA PRESTON

DALLAS — On a recent morning, Kris W. Kobach, a conservative law professor, rushed late into a federal courtroom here with his suit slightly rumpled and little more than a laptop under his arm. His mission was to persuade the judge to uphold an ordinance adopted by a Dallas suburb that would bar landlords from renting housing to illegal immigrants.

A team of lawyers from a Latino advocacy group had set up early at the opposing table, fortified with legal assistants and stacks of case documents. Unfazed, Mr. Kobach unleashed a cascade of constitutional arguments. Case names and precedents spilled out so rapidly that the judge had to order Mr. Kobach several times to slow down.

Mr. Kobach is on a dogged campaign to fight illegal immigration at the local level, riding an insurgency by cities and states fed up with what they see as federal failures on immigration. As these local governments have taken on enforcement roles once reserved for the federal government, he is emerging as their leading legal advocate.

The Dallas hearing — the judge has yet to rule — was one match in an immigration contest playing out in courts in Arizona, California, Missouri and Pennsylvania, among other states, with civil liberties and Hispanic groups on one side and, increasingly, Mr. Kobach on the other.

A professor at the University of Missouri-Kansas City law school and a Republican politician, Mr. Kobach developed his immigration views while working in the Justice Department at the time of the Sept. 11, 2001, terrorist attacks. The cases he has championed — like housing restrictions on illegal immigrants in Farmers Branch, Tex., and sanctions for employers in Valley Park, Mo., who hire such immigrants — are fiercely fought, with Mr. Kobach’s opponents accusing him of fostering discrimination against Hispanics and dividing immigrant communities.

But Mr. Kobach’s allies say he has borrowed a page from the Mexican American Legal Defense and Educational Fund and other pro-immigrant groups he confronts before the bench, by re-thinking the conservative tenet that the courts should not be a forum for policy change.

And with the Obama administration indicating that it will put off an overhaul of immigration until late this year or beyond, the courtroom campaign for tougher rules is likely to expand as cities and states remain the main battleground for shaping immigration policy.

“To rigidly separate local government from federal government when we think about immigration enforcement is not only legally incorrect, it’s also bad policy,” Mr. Kobach said in an interview.

Lawyers who have confronted Mr. Kobach in court say the cases he pursues would cover the country in a patchwork of local immigration rules that are contrary to federal law and costly to defend.

“These laws divide communities, stereotype Latinos, burden businesses and trigger needless and expensive litigation,” said Lucas Guttentag, the director of the Immigrants’ Rights Project of the American Civil Liberties Union.

Mr. Kobach rejects any accusation that his strategies unfairly single out Latinos.

“The driving principle is to restore the rule of law,” he said. “You have members of Congress throwing up their hands and saying the system is broken. I really think that’s a cop-out. Different parts of the system are working fine. The question is, How do you actually enforce the law in a vast nation that has very different circumstances in different states?”

So far, his results are mixed. He lost an early round in a case defending Hazleton, Pa., which passed an ordinance that sought to punish employers who give illegal immigrants jobs as well as landlords who rent to them. In a suit led by the Puerto Rican Legal Defense and Education Fund, the Federal District Court in Scranton, Pa., struck down the ordinance, and the city is awaiting a decision from the court of appeals.

But when Mr. Kobach defended a similar ordinance in Valley Park, Mo., on the outskirts of St. Louis, a Federal District Court upheld it, after major revisions. It survived an appeal last month.

Mr. Kobach lost a suit against Kansas to block a statute allowing illegal immigrants to pay in-state tuition rates in public colleges. But he won a similar case in California; it is now before that state’s highest court. And he helped Arizona defend a statute that cancels the business licenses of employers who repeatedly hire illegal immigrants; it was upheld by the federal courts.

Lou Barletta, the mayor of Hazleton, praised Mr. Kobach for empowering local governments by helping his city craft “a masterful ordinance that at the end of the day will have a great effect on this country of eliminating illegal immigrants.”

The recently elected mayor of Valley Park, Grant Young, was more guarded, noting that the town of 6,500 had paid some $270,000 in legal fees.

“Like most Americans, I do not support illegal immigration,” said Mr. Young, who has not met Mr. Kobach. “But as a fiscal conservative, I’m going to scrutinize any bill of that size.”

A Phi Beta Kappa graduate of Harvard with a doctorate from Oxford University, Mr. Kobach, 43, earned his law degree from Yale. He is “by no means reactionary or hidebound or anti-immigrant,“ said Peter Schuck, a professor of immigration law at Yale who taught Mr. Kobach. “He simply strikes a different balance between national security and undocumented immigrant rights than immigrant advocates do.”

Mr. Kobach joined the Justice Department barely a week before the Sept. 11 attacks. As officials scrambled for information about the hijackers, Mr. Kobach said, he was stunned to realize that several had been in the United States illegally and had recently been stopped by traffic police, who had no information about their immigration status.

“That impressed on me in a very salient way that there was a huge missed opportunity there that might have caused the 9/11 plot to unravel,” he said.

He started thinking of ways to turn the local police into the “eyes and ears,” he said, of federal immigration agents.

While at the department, Mr. Kobach also was the prime mover of a program that required temporary immigrants from 25 Muslim countries to register frequently with federal authorities. The program led to the deportation of more than 13,000 immigration violators. But some Muslim leaders said it traumatized their communities.

Mr. Kobach also worked with Attorney General John Ashcroft to streamline the immigration appeals court, reducing the number of judges and making it easier for them to dismiss an appeal. Immigration appeals did become speedier, but the changes clogged the federal appeals courts with cases from immigrants claiming they had not been fairly heard.

After leaving the department in 2003, Mr. Kobach ran unsuccessfully for Congress in Kansas in 2004. He served as head of the Kansas Republican Party, and recently announced a run for secretary of state there.

Some of his adversaries have emphasized his ties to the Federation for American Immigration Reform, or FAIR, which calls for reducing immigration to the United States. The group helped mobilize voters to defeat a bill in Congress in 2007 to give legal status to illegal immigrants. Mr. Kobach is partially paid by the Immigration Reform Law Institute, a nonprofit group described by its general counsel, Michael Hethmon, as the legal arm of FAIR.

The Southern Poverty Law Center, a group in Alabama that favors legalization measures, has named FAIR a hate group, claiming a history of “associating with white nationalists” by its founder, John Tanton. The center has produced no evidence of bigotry by Mr. Kobach.

Mr. Kobach calls the center’s assertions slander. “I would immediately disassociate myself from any litigation that was racist in nature,” he said.