Changes in military lawyering are
on display in Afghanistan
By Bill Hebert
President, State Bar of California
The truest form of civic engagement is the defense of one’s country. In today’s army, our country asks the lawyers in our military to apply their skills broadly. We ask our armed services, and the lawyers who serve in our military, to use their skills to bring together ancient and enlightened principles.
Unlike 50 or 60 years ago, when all of our families would have been related to someone serving in the armed forces, there is a disconnect now between the men and women who serve in the military and us, the people they serve. In the 1950s, every family could brag about a close relative who was serving in the military. Today, that situation has changed. There has been a change in the relationship between our soldiers and our society. Fewer and fewer soldiers leave the military to become part of the fabric of the law and the State Bar. In our largest law firms, maybe five or six are veterans.
There also has been a change in the way lawyers serve in the military. Col. Tom Umberg, a litigation partner at Manatt Phelps and a former Assembly member from Orange County, first joined the service in 1981. At that time, most military lawyers served in typical legal roles: They worked in justice courts where they prosecuted and defended soldiers in courts martial. Large law firms boasted many veterans among their ranks.
Today, our modern army and our modern conflicts call upon different skills. Lawyers who serve in the military are called upon to sift their knowledge of history, constitutional law and due process to craft solutions to complex social problems overseas. It is not traditional legal work. Our U.S.-trained lawyers build societies.
In Afghanistan, lawyers are closely involved in building confidence in the institutions that serve the Afghan people. It is not traditional legal work, but it involves legal training. Col. Umberg worked with the Afghan national police and the Afghan army to develop anti-corruption policies. They sought together to limit the opportunities for corruption. By way of example, before he arrived, the Afghan troops were paid by their commanders, who received the money to pay all of the troops under their command. Not surprisingly, not all of this money went to the troops. Col. Umberg helped to develop the logistical system that circumvented corruption in order to pay the troops.
I spoke to another lawyer who served as a Marine captain in Afghanistan at a large prison. U.S. policy and international law required that any person who was a criminal, not a terrorist or an insurgent, be turned over to the Afghans. But to do so required the writing of laws that govern basic due process, including the transfer of prisoners from coalition forces to the Afghan government; the recruitment of judges who would be independent and not, for example, paid by local drug lords; the selection and training of adequate defense counsel for the accused; drafting a code to dictate the appropriate timeline for these cases so the defense had an adequate opportunity to represent and defend the accused; drafting laws governing basic standards of due process so the prosecution of these defendants could withstand the scrutiny of the international community; and directing the expenditure of millions of dollars to construct facilities that satisfied basic standards of due process.
In the midst of using their legal skills and knowledge of history to create a legal system unknown in this part of the world, these men and women were required to be diplomats and peacekeepers. The defendants in these cases were detained at some of the most notorious prisons in Afghanistan. Our military lawyers drove to these prisons without security escorts. They were their own security forces. Our lawyers believed that if they were to represent a peaceful nation, they should travel without armed guards. Once inside the prisons, they dropped their weapons. Needless to say, the abandonment of weapons in prison was unsettling. The lawyers once again sought to show that they were from a peaceful nation in a hostile place, but they were willing to show that they could be vulnerable while furthering civil rights. All the while, they were shelled with mortar fire and exposed to attacks by insurgents.
The reach of the law was long and wide. Col. Umberg describes, for example, sitting down with village elders to address the settlement of civil disputes. Lawyers were very involved in building confidence in the melding of tribal and new Afghan institutions. Umberg worked with the Afghan national police and the national army to develop anti-corruption policies. He helped draft legislation that would set up a system of justice that was consistent with Afghan systems of justice but would pass muster in the international community. The lawyers we ask to serve in the military today are not serving traditional military roles, but they are involved in creating and melding the basic rules of law.
There is no doubt an opportunity for lawyers in California to get involved in the efforts by the military and the Department of State to assist in drafting new laws in Afghanistan. I would urge any California lawyer who has an interest in providing pro bono or legal services to the Afghan people to contact the Department of State, the U.S. Embassy in Kabul or the State Bar to direct you to the right person, who would welcome your assistance.