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Why are American citizens charged with international crimes being tried in a foreign court, without U.S. officials strongly insisting that due process protections must be implemented. Especially considering the recent U.S. military prison torture scandal.
Some of the most brilliant attorneys or judges I have met, worked with, or trained under, are from Afghanistan, Pakistan, Bangladesh, India and other parts of Asia. Many are trained in the Western Common Law or Civil Law traditions. At this stage the question of the Judge's competence does not raise a flag in my mind.
Afghanistan has a new constitution since January and new guidelines are being drafted by International organizations. The new criminal code has due process protections in its language, "but the implementation is the problem, according to Tiffany.
His concerns are valid. I remember being highly impressed with the flowery language of the U.S.S.R. Constitution when I was studying law in Moscow and St. Petersburg. But the application and interpretation of that constitution was frighteningly arbitrary. The state of Afghan's legal system, from what Tiffany said, is not very encouraging.
The United States has concurrent jurisdiction with Afghanistan in this case. Generally, under International Law, the United States allows its citizens, accused of violating laws in another country, to fry. That policy especially applies to common crimes -- those crimes, such as robbery or murder, which are not codified by the international community in a treaty.
Torture and hostage-taking are international crimes, and the United States is party to the torture and hostage treaties, among other conventions. Visa violations fit in the category of common crimes.
If a crime has been codified under International Law, the United States can claim concurrent jurisdiction with the country where the incident occurred. Under the circumstances, Afghanistan would probably cooperate, although the argument would certainly be made that the evidence and witnesses are present in Afghanistan and that moving the trial to the United States would be cost-prohibitive.
Another stumbling block is that the charges include common crimes, as well as International Criminal Law violations.
In addition, the United States jealously guards jurisdiction over activities of its military or citizens when it comes to national security. Charges of impersonating U.S. military personnel by American citizens would probably fit into that category.
I am not aware of any effort thus far to have Idema and his American co-defendants repatriated to the United States to face trial under U.S. Constitutional protections.
Tiffany, planning an imminent trip to Afghanistan believes that the United States involved officials were instrumental in Idema's orchestrated arrest and rush to trial. His goal is to have Idema and his co-defendants deported to the United States to face trial under U.S. constitutional protections.
The important thing is that the United States makes sure the Afghan legal system respects basic tenets of justice: innocent until proven guilty, and other due process rights. Judging by the media frenzy, this will be a high profile case with a global audience.
The United States and international organizations must assure that guarantees under the International Convention on Civil and Political Rights and the Universal Declaration of Human Rights are respected. Afghanistan is party to those Conventions.
The Afghans are affording more due process thus far than the United States has afforded suspected terrorists apprehended in Afghanistan, and held in U.S. custody. But much is lacking-for example, the presence of attorneys for Idema for trial. In the rush to trial, according to Tiffany, the Afghans and U.S. officials are not allowing enough time for a proper defense.
I warned in previous SOF articles that a U.S. policy of arbitrary detention, ignoring due process, and trying terror suspects in military tribunals, will come back to bite us. Let's hope the Idema case does not prove to be an example of that reckless ill-thought-out policy.
After a Lifetime of Skating on the Edge, Has Keith "Jack" Idema Finally Slid
By Martin Brass Soldier of Fortune Magazine
The badlands of Afghanistan have become a magnet for adventure-seeking "soldiers of fortune," private contractors, self-proclaimed counter-terrorism experts, and/or security guards.
Bounty hunters and fortune seekers, fed up with low-paying, boring grunt work, arm themselves, preparing for a wild chase with high financial rewards. Some hope to capture the ultimate prize -- Osama bin Laden -- for the $25 million bounty, placed on his head by the United States.
This new breed of non-uniformed warriors has replaced men in uniform, in roles traditionally reserved for the military.
"You'd see them speeding around in SUVs with tinted windows, sipping tea with Afghan warlords and commanders, barrel-chested men in their thirties and forties with short-cropped hair and accents from the South and Midwest. Ask them who they were, or what they were up to, and you'd get a broad, insolent grin.
"'Just visiting,' one such goon replied. 'Didn't you hear? Afghanistan's open for tourism!' He carried enough guns and ammo to take out a large Colorado high school," Ted Rall, noted syndicated columnist and cartoonist, reported while covering the Afghan war in 2001.
"Burly men with guns ran the war -- roughly a hundred six-man Special Forces commando units, authorized to wear local garb, with "relaxed grooming standards", and otherwise apply "unconventional warfare" worked alongside a new CIA "Special Activities Division" composed of about 150 retired fighters, pilots and specialists. These operatives "spearheaded the U.S. war against the Taliban, coordinating air strikes, bribing Northern Alliance warlords," Rall said.
"They favor desert boots, camouflage pants, wraparound sunglasses and short haircuts. They drive Toyota Land Cruisers and do their evening drinking at the seedy Mustafa Hotel. If you're blond or a Westerner and you're wearing black sunglasses, carrying a pistol in a leg holster and driving a car without a license plate, nobody would ever question who you are," Qais Asimy, Kabul businessman, told Knight Ridder. "People just assume you're CIA or Special Forces or someone dangerous. People stay away from you."
Afghanistan, largely put on the back burner by the press and U.S. public since the Iraqi invasion, has seen a recent resurgence and intensification of violence. More than twenty-five U.S. troops have died this year already, compared to twelve in 2003. Attacks against aid workers and other foreigners have also escalated. At least sixteen aid workers and independent contractors have been killed this year. U.S. troops have nearly doubled to 18,000, and NATO forces are to be increased from 6,500 to 10,000. The Taliban, having had time to regroup, has intensified its attacks, terrorizing rural regions as well as urban areas.
As the action gets even wilder, more security guards and private operatives are needed to provide protection.
The war offers to fulfill many a rogue's dream -- a starring role in a real life drama, fraught with danger and possible riches -- that requires no audition. What captures the imagination is the chance to fight terrorism with your bare hands -- or even better, with lots of weapons you don't have to register.
Private security guards, most with military experience, "can be seen in dark glasses and camouflage gear, sub-machine guns slung over their shoulders as they ride through the city," Duncan Campbell and Kitty Logan of the Guardian report from Kabul.
Among the many adventurers drawn to Afghanistan was former Green Beret Jonathan Keith Idema.
We first met Idema in Fayetteville NC, after he had come back from Afghanistan in 2001. He fit the part perfectly -- handsome, rugged, flamboyant, and driven. He showed us dozens of photos while he relayed his riveting tale of combat with the Northern Alliance, against the Taliban. He explained that he had found some revealing tapes of Al-Qaeda terrorist training techniques, portions of which were later aired on CBS's 60 Minutes II, and continues to be run every time a news broadcast needs shots of Al-Qaeda in training.
Idema's wife, Viktoria Running Wolf, states that he has donated all monies from broadcast of these tapes to Afghan relief projects.
The video showed al-Qaeda terrorists training to storm a school, shoot children and take hostages. Khalid Sheikh Mohammed, the mastermind of the Sept. 11 attacks was the instructor.
"Idema had "JOINED the Northern Alliance! He bonded with their fighters and marched with them following the American invasion, from their once-beleaguered base in the north, down though the capital, Kabul, and clear on down to Kandahar," says Barry Farber, an Idema supporter and radio talk show host in Newsmax. Before his return to Afghanistan, Idema appeared as a frequent guest.
Idema allegedly threatened to punch out the flashy, publicity-starved, often-obnoxious Geraldo Rivera, Fox News roving reporter. Idema claimed he had "messed up the operations of the Northern Alliance by irresponsible reporting," according to the Guardian.
Robin Moore, author of The Green Berets, intrigued by Idema's tales, wrote the saga of the Task Force Dagger: The Hunt for bin Laden. This best-selling non-fiction featured Idema as the star in the hunt.
Idema, restless to return to the action, recently showed up again in Afghanistan. He has "been in touch and working with U.S. officials. He corresponds with them and has served as an adviser to Afghan forces through "ongoing contacts with the (Afghan President Hamid) Karzai government," his defense attorney, John Tiffany of Bloomfield, N.J., said.
"He's been working with their full knowledge and cooperation" Tiffany said.
Idema wanted to "rescue Afghanistan," Ted Kavanau, former CNN news executive, who was preparing for a journalistic mission to Afghanistan.
On 5 July, after three months back on the ground, Idema's high-profile anti-terrorism adventure came to a grinding halt.
Afghan security forces, and agents of the new National Security Directorate Intelligence Agency, raided the building that Idema rented in the suburb of Kart-I-Parwen, on the outskirts of Kabul, arresting him and two other Americans, Edward Caraballo and Brett Bennett.
Caraballo, a free-lance investigative journalist, was collecting footage to complete a video documentary on Idema, according to Caraballo's brother, Richard. Ed Caraballo is a four-time Emmy award-winning journalist who planned to create a PBS-style documentary that would feature Idema, says Richard Caraballo. Caraballo had no military expertise.
Caraballo's family had been cut off from direct contact with him at the time I contacted his brother, a week after the trial.
"Those of us who rely on the courage of freelance journalists to be our eyes and ears in the world's trouble spots will do well to monitor -- and speak out -- to influence a just outcome," pled a very concerned Richard Caraballo.
Bennett was reported by the Fayetteville Observer to have been a soldier in the 82d Airborne Divison, a friend of Idema's who asked to come along.
Four Afghan suspected accomplices, two interpreters, a cleaner and a guard, were reportedly arrested with the three Americans.
A piece of paper was found on the wall, after the arrests with a "Missions to Complete" list. Item No. 2 was "Karzai." Item No. 4 was "pick up laundry."
The news hit the global presses immediately.
"A former Poughkeepsie man is being held by Afghan authorities for allegedly operating as a mercenary, 'arresting' eight Afghans and imprisoning them in a Kabul home where he allegedly had them hanging by their feet. Jonathan Keith Idema, 48, is being held along with two other American men by Afghan security officials after they were arrested and detained Monday in the Kabul home where they allegedly kept their prisoners, said Brenda Greenberg, a State Department spokeswoman," the Poughkeepsie Journal reports.
The arrests came after international peacekeepers contacted the U.S. military about their own suspicion of Idema's group.
A mysterious article, written by an unidentified journalist, appeared in the Afghan press and set the stage for the events just previous to the raid:
"Driving a beat up old SUVs, wearing low-slung holsters like Clint Eastwood, long hair, beards, and Afghan scarves, the Green Berets operated the way they did on the 2001-2002 war, with no rules, no oversight, and no plan... They seem to appear and disappear at will… A 'super-secret group' of 'renegade Green Berets' had decided to break up a major terrorist plot in Kabul without United States support and without government funds. The former commandos, frustrated by U.S. government inaction, had called themselves Task Force Saber and had arrested thirteen people suspected of terrorism since arriving in Afghanistan three months ago."
David Rohde of the NYT speculated that it could have been written by an American, and included an accurate description of the illegal arrests by Task Force Saber, Idema's group.
"We were working for the U.S. counterterrorism group (Actually CounTerr Group is a corporation that Idema owns -- SOF) and working with the Pentagon and some other federal agencies," Idema told reporters.
"The American authorities absolutely condone what we did. They absolutely supported what we did," Idema said. "We have extensive evidence of that. We were in contact directly by fax, and email and phone, with Donald Rumsfeld's office, with the Deputy Secretary of Defense for Intelligence, and with Kevin Anderson, four-star ranking officer level at the Pentagon … We did not want to go under contract because that would have meant that we couldn't work with the access to Northern Alliance people we were working with," he said according to Agence France Presse.
The U.S. Central Command issued an advisory, distancing the U.S. military. "After additional and careful review, records indicate that Coalition forces received one detainee from Jonathan K. Idema on 3 May, 2004 at the Baghram Collection Point. We accepted this detainee because Idema claimed the individual was associated with the Taliban. We determined this individual was not who Idema claimed and we released him the first week of July. This incident prompted us to investigate Idema and led to our media advisory on 4 July 2004, which still stands.
The advisory stated, "U.S. citizen Jonathan K. Idema has allegedly represented himself as an American government and/or military official. The public should be aware that Idema does not represent the American government and we do not employ him."
"That doesn't mean that at the time we knew Mr. Idema's full track record or other things he was doing out there," Major Jon Siepmann said.
Embarrassed NATO military commanders also admitted that they cooperated with his group on at least three missions, believing it was a legitimate Special Forces anti-terror unit. NATO peacekeepers had sent explosives experts to help Idema during three raids in June, according to Knight Ridder News.
NATO troops said they were duped because the men wore US military uniforms, and had provided them with bomb disposal services. Since February, 2002, U.S. consular officials in Kabul had warned newly-arrived Americans to steer clear of Idema. Coalition authorities hung wanted posters describing him as "armed and dangerous" and "interfering with military ops," Newsweek reports.
A preliminary hearing was held Monday, July 19, in a formal drawing room, before three judges and three prosecutors, who sat on sofas. Judge Abdul Baset Bakhtiari handed out the charges and set the trial for that Wednesday. A NYT reporter, one of two pressmen allowed in the room, said that Idema spoke for two hours, stating that he wanted to call Afghan ministers, ambassadors, generals and corps commanders, with whom he was working, to his trial.
One witness is to be the Minister of Education, Yunus Qanuni, and his brother and security chief, Haji Ibrahim. Idema said his unit had uncovered a plot to assassinate Qanuni. Idema said he worked for a secret counterterrorist unit directly responsible to the Pentagon, and the U.S. embassy knew of his activities.
He claimed to have captured a high-level Taliban official, and handed him over to U.S. forces. He claimed to have uncovered plots by Al- Qaeda, the Taliban and Gulbuddin Hekmatyar, the wanted Pushtun warlord and terrorist, to assassinate Qanuni, and defense minister Marshal Muhammad Qasim Fahim. And also -- while they were at it -- to blow up fuel tankers in the United States and NATO military headquarters.
On Wednesday, 21 July, the tribunal was opened to the public for a pretrial hearing, with hundreds of journalists and Afghans present. The hearing was vastly different from the arbitrary, draconian tribunals held by the Taliban when they were in power.
A bearded Idema, wearing his customary dark glasses, appeared in court in khaki uniform, with a reversed American flag on the shoulder.
The prosecutor Muhammad Naeem Dawari read the charges.
Caraballo's brother said that the family had been in contact with the U.S. State Department and his defense attorney, who had made it to the hearing. On-site sources confirmed that the trial had begun and that the charges were "having a personal jail, taking hostages, and torture."
Dawari alleged that Mr. Idema had admitted under interrogation that he had no connection with any American government agencies, and that he had entered Afghanistan, from India, without a proper visa. Under pressure, Idema also supposedly admitted detaining men in his house.
Maulavi Siddiq Ullah, a prominent Islamic cleric told the judge he had been beaten and starved, and said he was humiliated by being stripped and forced to use the toilet in front of his captors, says Knight Ridder News.
Taxi driver Ahmad Ali, told the court that he had been seized in his taxi, en route to Kabul from Northern Langhman province. He said he had his head dunked into a basin of water repeatedly and was beat on the feet and stomach. He testified that he was fed two pieces of bread in seven days. "They kept showing me pictures of people and asked if I knew them," Ali said. "They said they'd bring my family and beat them as well," AP reports.
Kabul shopkeeper Sakhi said he gave his captors the name of fellow detainee Mohammed Arif Malikyar, and Afghan Education Ministry official, in an attempt to stop repeated beatings, after he failed to recognize any pictures of terror suspects Idema's group had showed him," AFP
Idema's wife, Viktoria, continues to be as staunch a supporter as she was several years ago when I met her.
Jim Morris, Special Forces three-tour Vietnam vet, author, war correspondent for SOF and for Rolling Stone, who has known Idema for twelve years, said, "The press deems it perfectly acceptable and sensible for the government to offer a huge reward for the capture of OBL, Mullah Omar, and others, but somehow disreputable for anyone to try to collect it.
"There is little question that Keith would have accepted the reward if he had captured someone significant. He is in business; he has expenses.
"I should like to point out that a trained and experienced privateer, in Afghanistan or anyplace else, has an advantage that no one else has. He doesn't have to get permission from some bureaucrat, scared to death that he will ruin his career, to make his move.
"Time after time, and I know this from active duty Special Forces operators in Afghanistan and Iraq, leads have been blown while higher dithered.
"An ancient rule of thumb for guerrillas and terrorists is that you never stay in one place for more than seventy-two hours, and, in today's world, seldom for more than twelve. Bureaucracies can't make decisions to move that fast. That is the sole reason OBL and Mullah Omar are still at large. A privateer doesn't have the resources of the government, but he can move fast and take chances no bureaucrat would ever countenance. Apparently no journalist will either," said Morris.
In the 1980s, Idema formed an academy to train people in anti-terrorism techniques, John Idema, Keith's father, told the Poughkeepsie Journal.
Idema said his son trained different government agencies, including U.S. Customs. When President Reagan dedicated the Statue of Liberty in 1986, John Idema said, the government called on his son to help provide security.
"He's a very good and intensely American boy," John Idema said. "He thinks of nothing else but that. Really, he is a dedicated American, and we should have a few more of them."
Barry Farber, writing in Newsmax, said, "The soldier, who more than a decade ago first warned the Pentagon about the Russian Mafia selling suitcase nuclear bombs to terrorist-supporting nations, now languishes in an Afghan prison, along with other members of his independent antiterrorist team.
"We smell FBI vengeance, payback fueled by Keith's volunteer success in rounding up the bad guys. We're open to being proven wrong. The other side doesn't seem to be open to anything."
"In contrast to these official torture allegations, a NATO spokesman, who claimed his troops were deceived into going on three raids with Idema's group, spoke of, 'their apparently professional approach - also in handling prisoners,'" Ted Kavanau said.
NATO bomb-disposal teams found traces of explosives in two houses raided by Idema's group, Richard Caraballo cited from an AP account.
Judge Abdul Baset Bakhtiari, who granted a fifteen-day adjournment for the defendants to prepare, said, "I like Mister Jack. He has a lot of good things going for him. He is very active and very confident."
However, this same judge, who spoke those friendly words in front of a crowd in the preliminary hearing, also said, "We are creating a government here, and only the highest government authority is entitled to solve ministers' problems or to decide what to do," Judge Bakhtiari reportedly said. "Afghanistan is not a forest that any animal can behave how it wants.
"This is the clearest case I have seen in my twenty years as a judge," he said. "The criminals were arrested at the scene of the crime; they were armed, and their prisoners were there for the police and everyone to see" Judge Bakhtiari said, according to the New York Times.
Wonder what he'll say after actually hearing all the evidence?
Dr. Martin Brass is an International Lawyer and longtime
contributor to SOF.