Intellectual property practitioner Art Cody recently returned from a one-year deployment in Afghanistan, where he worked with Afghan officials to implement the Rule of Law in that war-ravaged country. Cody was 52 years old with four children—25- and 28-year-old daughters and 13- and 12-year-old sons—when he became one of the New York lawyers mobilized for Operation Enduring Freedom.

Cody graduated from West Point in 1982 with a degree in aerospace engineering. He joined the Navy Reserve after completing his active-duty commitment, rising to the rank of captain. He worked in the aerospace industry and received a masters degree in systems management at the University of Southern California before obtaining a law degree at Notre Dame.

He is of counsel at the New York City firm of Ostrolenk Faber, where he has represented clients in numerous technical fields including mechanical engineering, electrical engineering and computer software applications.

Cody also has been active in the Capital Punishment Committee of the New York City Bar. He was counsel for Richard Gaddy in post-trial and federal habeas proceedings. Gaddy died of liver disease after spending more than 17 years on Alabama’s death row for robbing and stabbing a high school teacher to death.

Q: What attracted you to the military?

A: I wanted to serve the country and like many teenagers I had some sense of adventure. The military at that time, as it still does, offered the opportunity to experience some unusual things and places. That has been the case in my career. My entrance to the military was via West Point. The academics and the tradition of the school was something I wanted to be a part of.

Q: Why did you remain in the Reserves upon the completion of your active duty commitment?

A: Remaining in the Reserves allows you to continue to do some of the “fun” things in the military, but also have a full civilian career. I had been a helicopter pilot in the Army. I joined the Navy Reserve on the West Coast. While most of the time I was a civilian engineer in the defense industry, I also flew helicopters for a Navy search-and-rescue squadron. It was a great weekend job.

Q: Did you volunteer for your recent deployment in Afghanistan?

A: I was involuntarily mobilized. Having said that, by choosing to remain in the Reserves, I accepted potential mobilization.

Q: What was your job in Afghanistan?

A: I was the staff director of the Interagency Rule of Law or “IROL” Section at the U.S. Embassy in Kabul for a year. I had approximately 30 lawyers working for me (some military JAGs, some Department of State, some Afghan nationals). My section worked in a variety of Rule of Law fields including anti-corruption/counter-corruption, judicial education and the promotion of human rights.

Art Cody visits the chief justice of a large Afghan province during his deployment. Cody says the whip on the wall that is often found in the chambers of Afghan judges is akin to the scales of justice displayed in U.S. courts. Photo Courtesy of Art Cody

In my director role, I was involved in each of those areas by providing overall supervision/coordination. One of my most important duties was to approve all “outside the wire” missions for people in my section. I took each of those decisions very seriously. I also had the opportunity to brief ambassadors, congressional delegations and senators fairly regularly on the overall state of Rule of Law.

I was most personally involved in the District Rule of Law program. The lack of formal justice (courts, prosecutors, defense attorneys) in the more dangerous, we called them “kinetic,” districts, was considered by both the Afghan government and the coalition to be a security issue that threatened the Afghan government’s legitimacy and potentially its survival. Afghanistan has about 400 districts. My job was to work with and, to some degree, mentor the Afghan government to establish courts (judges, prosecutors, magistrates) in 48 strategic districts.

There were four functional areas that I focused on: capacity (judicial education/training), infrastructure (courthouses), human resources (adequate manning for each district) and security (enough policemen to protect the courts). While I drew on my U.S. legal experience, the aim was not to put a U.S.-style justice template on an Islamic country, but to assist the Afghan government in an Afghan-led program to establish functioning courts. The hoped- for effects would be bolstering the Kabul government’s legitimacy, fostering fairer adjudications, and reducing human rights/gender rights violations.

Q: Was your assignment a good fit for a patent lawyer? Wouldn’t it have made more sense to have a criminal or constitutional lawyer?

A: My mission was largely to help the Afghans help themselves. Most of my work was done at the Afghan national level and as policy advisor within the U.S. Embassy. So long as one had an understanding of some basic components of any judicial system (e.g., education/training of legal professionals, security of courthouses, reliance on evidence, right to representation, and absence of corruption) one’s field of law was not critical. What mattered most was the ability to find commonality amongst some varying viewpoints and build on that. Diplomatic skills were very important.

Q: Why do you think you were selected to go?

A: The Rule of Law staff director job required someone at the colonel/captain level, a lawyer with both military managerial experience and civilian legal experience. Since Afghanistan is primarily an Army operation, it was a good fit that I was former Army and had some experience working with Central Command (the overall combatant command for Afghanistan).

Q: How do you define the “Rule of Law”?

A: There are many more sophisticated ways to explain it but I think the easiest way is “a fair shake.” It is trust that your judicial system, while it may be imperfect, generally speaking will give you an unbiased adjudication independent of outside factors such as ethnicity, gender or corruption. While a ruling may not go your way, you had a reasonable belief that you had the opportunity to be heard and a decision was rendered by an impartial judge. It does not have to be formal.

To a great degree in Afghanistan, we supported, and relied upon, the informal system (tribal elder) law. This is deeply seated in Afghan culture, particularly in the rural areas. Rule of Law also requires respect for human and gender rights. Training and education in those areas is a great deal of what we did.

Q: Why is it important to establish the Rule of Law and “access to justice” in Afghanistan?

A: Rule of Law is important for several reasons:

• As in other emerging post- conflict countries, establishing Rule of Law in Afghanistan is vital to stability. In the absence of justice mechanisms, to include police and a functioning court system, resort to vigilante justice becomes an attractive alternative.

• The ability to be seen as a dispenser of justice is a potential lever for the Taliban to gain popular support and was one of the ways that they first came to power in southern Afghanistan. A common perception in these more rural areas is that the Taliban can deliver efficient impartial, albeit often brutal, justice. To the degree that governmental or legitimate informal justice action can displace the Taliban as a judicial resource, the Taliban loses that leverage.

• The Afghan government gains legitimacy via a judicial presence particularly in the rural areas. The perception, hopefully justified, that the Kabul government can provide a fair justice system will increase the esteem in which the people hold the government.

• An important part of Rule of Law is the establishment of human rights, and as an important component to that, gender rights. A more formalized Rule of Law system and a better educated informal system will more likely foster respect for human rights.

Q: What obstacles stand in the way?

A: I would say three things:

1. First and foremost are cultural norms. In many areas of the country, the idea of equal rights for women is simply a foreign concept. Similarly, the presence of governmental corruption is far too pervasive and accepted. We are trying to change long-held beliefs and practices and introduce concepts that are just not familiar to the average Afghan. For example, I spoke with the chief judge in one of the larger districts, he was very proud of his courthouse and the efficiency of his criminal court. I asked him his thoughts on the quality of defense counsel, an Afghan constitutional requirement. “I have never seen one in my court, we really do not use them and the people do not understand why they should have them.”

2. Security. This is a vicious cycle, Rule of Law needs security and vice versa. It is very difficult to ask judges to conduct trials in areas where they have been threatened and their brethren assassinated. This is a significant reason for the NATO emphasis on training of the Afghan security forces. There is a direct correlation between the security of a district and those that are furthest along in Rule of Law.

3. Difficulty in coordinating Rule of Law efforts and priorities. While the United States has an overall Rule of Law ambassador who sets forth the strategy, that is less so in the international community. What one country or NGO thinks is important, another may not; sometimes it is difficult to get a unified international approach to a Pan-Afghanistan program. Certain countries worked very well together in Rule of Law. The United States, the United Kingdom and Canada had a great partnership.

Q: Have U.S. efforts been successful?

A: Rule of Law in Afghanistan is a work in progress. In some areas, we have had very significant gains—more women judges, better educated lawyers, and more functioning courts in the rural areas. Other areas remain problematic—corruption, gender rights, and due process come to mind. It was fairly common for capital defendants to have no representation at either the trial or appellate phases.

Q: What was the toughest thing for you to accept?

A: From a Rule of Law point of view, treatment of women. Rape victims were oft cast as adulteresses and the alleged perpetrators never arrested, much less brought to trial. Running away from an abusive husband was a crime and often resulted in imprisonment. I think we were able to significantly reduce the instances of the “baad,” a restorative justice technique amongst Pashtuns wherein a young girl is traded to another family to settle a dispute for her older relatives. Changing the manner in which the justice systems, both formal and informal, treated women was a focus area for the United States but very hard to change.

From a military officer’s point of view, the youth of our KIAs. The hardest part for me was visiting the forward operating bases in the tougher areas. Usually the main building would have a “Hall of Honor” or a “Never Forgotten” area or something like that where units commemorate their dead. While our losses in Afghanistan are not that of the Korea or Vietnam conflicts, I was reminded of General Schwarzkopf’s words during the Gulf War that every time we lose one son or daughter we suffer heavy losses. I just know that I saw too many young faces on too many walls.

Q: What is it like serving as a lawyer in the military? Do legal views carry weight among warriors?

A: I am not a JAG but rather a Navy Reserve aviator who is a lawyer in his civilian career. As far as working as a lawyer in the military, the combat troops understand the necessity for lawyers, particularly in promoting the Rule of Law. As Admiral Mike Mullen, the former chairman of the Joint Chiefs of Staff, said, “We can’t kill our way to victory in Afghanistan.” The military is very involved in developing the capacity of the Afghan government. In fact there is an entire unit dedicated to the supporting U.S. Rule of Law policy in the field, Rule of Law Field Force-Afghanistan (ROLFF-A). Much of their work was assisting the Afghans in developing infrastructure (courthouses) and enabling training for judges, prosecutors, and magistrates.

Q: What do you think that you personally accomplished?

A: Afghanistan, if it is ever going to be successful from a Rule of Law perspective, will not reach that end for at least a generation. It will be a long process. I would like to think that I helped lay the groundwork for that, particularly with respect to the District Rule of Law program. Most of the districts I worked on now have functioning courts. How they do long term—whether the Afghan people accept them and they are perceived as impartial, efficient dispensers of justice—remains to be seen, but I think I helped get the program started.

Q: As the United States winds up its 10-year commitment in Afghanistan, are you optimistic about the country’s future?

A: The youth of the country gives me hope. I had opportunity to talk to many college, law school, and military academy students. They understand that changing their society will be up to them and appear willing to take that on. Change will take many years—generational. When these students graduate and take their places in Afghan society (particularly in the Afghan government and military) they will have to make the hard decision whether to use their offices for personal enrichment or for the betterment of the Afghan people. If we did a good job in assisting the Afghan educational system, and I think we did, the results will pay off.

Q: You were stationed at the U.S. Embassy in Kabul. Did you travel to other parts of the country?

A: I was able to visit many of the outlying districts to speak directly with Afghan judicial actors. These trips gave me an “eyes on” perspective regarding some of the obstacles they faced.

Q: Was your assignment dangerous? Do you ever feel nervous or fearful?

A: I did not think my job was particularly dangerous, at least not by Afghanistan standards. My colleagues in other regions (e.g., Kandahar, Helmand) faced much greater risk. The first two or three weeks after you get to Kabul, especially if it is your first time, you are acutely aware of what country you are in. There comes a point where you settle in, accept the things you cannot change, and get very focused on your role and mission. The “fear factor” aspect becomes compartmentalized and you do what you have been asked to do. This is the scenario for about 99 percent of the people. I felt that as long as I did not get complacent and followed the security procedures, the odds were very much with me.

Q: What if anything do you miss about Afghanistan?

A: A couple things come to mind. One thing I miss is working in such a diverse international community. I often had meetings with representatives from most of the NATO nations as well as other coalition nations. One could walk down the main street at ISAF headquarters and see all the different flags. Like EPCOT, just with automatic weapons. I will miss the people I had the privilege of working with over there. Amidst the diversity of nationalities and cultures, the bond amongst the coalition troops is palpable. Not sure we experience that in the civilian sector in quite the same way.

Q: What effect did your absence have on your family?

A: It is not easy for military families and I have to give credit to my wife Stacy. She was able to juggle many things while I was gone. We all missed each other but at the embassy, where I spent most of my time, you have Skype and a phone to the States so I was able to check in on essentially a daily basis. Things went smoothly while I was gone. My sons’ grades, batting averages, and shooting percentages all went up. While it is not the same thing as being there, we worked through it.

Q: Why did you become involved in death penalty work in the United States?

A: That is rooted in my Catholic faith. The Gospels recount that Christ taught that the one who has no sin should cast the first stone and that what we do to the least of His brothers, we do to Him. As Mother Teresa said in a visit to San Quentin’s death row, what you do to these men, you do to God. I think that I have a particular vocation to this work.