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Last May, a team of 13 American lawyers visited Iraq to assess the state of its shattered judiciary and to make recommendations for recreating it free from the influence of Saddam Hussein. During the course of six weeks, the team, which included former U.S. District Judge Stephen Orlofsky and current federal public defender Richard Coughlin, interviewed dozens of bribe-taking Iraqi judges and the unpaid lawyers who appear before them. They also visited courthouses, jails, torture chambers and mass-grave sites across the country. However, the team’s report, which outlines the resources that the new justice system would require, was filed with the U.S. Department of Justice months ago and hasn’t been seen since. It was classified as “sensitive” by the department, according to Orlofsky. The Justice Department did not return calls requesting comment. But in an interview with Orlofsky, in congressional testimony and in documents written or provided by members of the team, a picture of the team’s recommendations emerges that is surprisingly familiar: The new Iraqi justice system could end up looking a lot like the American one. The Judicial Assessment Team had a wide-ranging brief, from nuts-and-bolts issues (such as replacing photocopiers stolen from courts by post-war looters) to the highest principles of law (such as a ban on torture), according to Orlofsky. The result is that important rights provided under the U.S. Constitution might find themselves grafted onto Iraq’s existing patchwork of Sharia-, Egyptian- and French-based code. In terms of civil rights, the report covers at least two areas that are staples of U.S. law but entirely new concepts in Iraq: the right to counsel and the right to silence for criminal defendants. Iraqi judges and lawyers “all talked about Miranda warnings,” Orlofsky said, which they had seen in American movies even though Iraqis have been banned from watching foreign TV and radio broadcasts for more than three decades. “The lawyers I talked to liked it,” Orlofsky, now a partner with Blank Rome in Cherry Hill, N.J., said of the warning. That is not surprising: Iraqi prosecutors told him that perhaps 30 percent of their criminal convictions are obtained by using torture to produce confessions. The team drafted several memos detailing amendments to Iraqi law that would establish Miranda-style rights and protect suspects from being tortured, bribed or coerced during investigations. It was not known whether Paul Bremer, the administrator of the Coalition Provisional Authority, signed the drafts into Iraqi law. The State Department referred calls to the Justice Department. Messages left with the Justice Department, the Coalition Provisional Authority and the U.S. Central Command were not returned. Of course, with a right to legal advice comes a further Americanization of Iraqi law: attorney compensation. The Coalition Provisional Authority has started gathering paperwork on the issue. One memo from the assessment team, dated June 15, outlines a “model plan” for regional panels of private attorneys willing to represent criminal defendants. Attorneys on the panels would be paid according to hours worked and expenses incurred, “based on prevailing wages and professional fees.” The proposal is strikingly similar to the per-diem pool attorney system run by U.S. public defender offices — even down to a provision for removing lawyers from the panel if they accept compensation from a conflicting source. But before Iraq gets to the big questions on human rights, it must claw its way out of a morass of smaller, more practical problems. Almost all of Iraq’s courthouses have been looted “from light bulbs to doorknobs,” Orlofsky said. “They were shells.” In Ad-Diwaniyah, the court had been destroyed and was being rebuilt by U.S. Navy Seabees at a cost of about $150,000, Orlofsky was told. Among the most intact courthouses, “none would be considered acceptable by U.S. standards,” according to an article in the September-October edition of The Pennsylvania Lawyer written by another member of the team, Frank McGovern, general counsel at T.A. Title Insurance in Media, Pa. Most have no telephones, computers, furniture, power or lighting, McGovern wrote. “Many lost all legal and administrative records in the looting,” he continued. Transport, fuel and security are all sketchy, Orlofsky added. Orlofsky saw only two courts that were actually hearing cases — a criminal investigative court and a family court. Those proceedings made the Westerners wince. While the judges denied there was corruption, the lawyers claimed that bribe taking was rife. A female criminal defense attorney told McGovern that if she wanted to win cases she would have to have sex with the police officers in charge. DE-BAATHIFYING THE BENCH The judges were in a similar state of denial about their political loyalties. In Iraq, Hussein appointed all the judges, Orlofsky said. About 35 judges were questioned about their membership in the dictator’s Baath Party, in an effort to weed out Hussein loyalists. In a scene reminiscent in form, if not content, of the anti-communist hearings conducted by Sen. Joseph McCarthy in the 1950s, Orlofsky asked them all, “Were they members of the Baath Party?” All but one denied membership or claimed a low-level affiliation undertaken merely to get the job. One likened it to joining the Republican or Democratic parties. The last judge admitted that he was a Baath Party member, thus disqualifying himself from the job under the coalition’s “de-Baathification” process. “I thought to myself at the time, we ought to keep this guy — he’s the only one who has told us the truth,” Orlofsky said. One of the recommendations is that a vetting system be put in place to weed out Baath Party members from the bench. Turnover is already happening. Some local military commanders have appointed new judges in the regions they control, and in other regions current judges and lawyers are holding judicial elections. In Najaf, for instance, 12 judges received votes of no confidence from their peers, reducing the Najaf bench to 29 judges. This sort of ad hoc approach has been the subject of criticism. Last June, the chairman of the Iraqi Jurists Association told a Senate judiciary subcommittee that the Najaf process was a farce. The military official who ran the Najaf election was “a recent law school student and Army reservist from Wisconsin with one year of training in Arabic,” Sermid Al-Sarraf, a Los Angeles solo practitioner, testified. “If this were done in Los Angeles Superior Court, I can guarantee you that many lawyers would not be voting for the best qualified, most impartial judges,” he added. Al-Sarraf also berated the Judicial Assessment Team. “Not one of [them] were Iraqi legal professionals or even native Iraqi-Arabic speakers, despite the fact that the DOJ conducted a two-week training program on international humanitarian law for 25 to 30 prominent Iraqi jurists in late March,” Sarraf told the senators. “If I were a jurist inside Iraq, witnessing these events, I would think to myself that the CPA [Coalition Provisional Authority] and/or the U.S. are not taking this task seriously.” Orlofsky brushed that off. “I think it’s a cheap shot,” he said. “We may not be Iraqi jurists, but we certainly know something about running courts and making courts functional.” In addition to the need for physical amenities, judges’ attitudes have to change, McGovern wrote in his article in Pennsylvania Lawyer. “[T]hey do not seem to be working too hard. They work from 9 a.m. to 1 p.m., six days per week. Even during those hours, as we walked around the respective courthouses, most judges and courthouse employees were milling about and not too busy working.” Orlofsky agreed: “These judges had no concept of case management.” The Judicial Assessment Team worked in harsh conditions. Daytime temperatures rose to 130 degrees. There was no air conditioning and power for the fan in Orlofsky’s hotel room was intermittent. Every meal was accompanied by a swarm of flies. The food, often meat kebabs, was “awful,” Orlofsky said, and they eventually subsisted on slightly more palatable military “Meals Ready to Eat.” Many team members — including Orlofsky — contracted food poisoning and had to take antibiotics. To ward off malaria, the team took Larium, which produced nausea and dizzy spells for up to four weeks after they returned home. Outside the capital, team members were received warmly, but in Baghdad they were subjected to continual sniper fire, much of which hit their hotel, Orlofsky said. They were issued helmets, bulletproof vests and chemical suits for protection, but going outdoors generally was risky. Snipers fired at Coughlin once when he stepped outside to use a satellite telephone to call his wife; he told her it was just firecrackers from a local celebration, Orlofsky said. Coughlin did not return calls seeking comment. It was the visit to the mass grave in which hundreds of Iraqis had been buried — some ploughed over alive — Orlofsky said, that left the deepest impression on him. “There were family members at the site literally on their hands and knees digging through the gravesite looking for remains of their loved ones,” he said. Their Iraqi interpreter told them later, in a sentiment Orlofsky heard expressed more than once, “She was afraid this was all a dream and she would wake up and Saddam would be back.”

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