Page Date: 9/7/05
Case Related Links:

Hot Links Out:

The Original Motion In Limine

The press said the Defense argued the case based on "Jack's interpretation of the law" and that there was no law in Afghanistan.  On both accounts they were lying.  It was not Jack's interpretation, they were the actual rules. 
Furthermore, there is law in Afghanistan, it's just that nobody follows it.  Especially the Taliban Judges and Taliban Prosecutors that Karzai re-appointed to their positions in a secret deal with Mullah Omar.
The original motion, like all motions filed, was ignored by Bakhtyari, who claimed the Interim Criminal Code, was merely a guideline, not really law, and that the laws of his former Taliban government would be applicable. 

There have been over a dozen documents filed by the defense in the Primary Court Case.  Not one was ever ruled on or considered by Judge Bakhtyari.  The press categorized Jack's arguments in court as "Jack's" interpretation of the law. However, it was not Jack's "Interpretation," it was in fact, the law.  Judge Bakhtyari just didn't want to follow it, and he never had to follow it when he was a judge for the Taliban.  You can read about most of these filings on the past filings page.

Photo of the file in Maxim Magazine

Although the Defendants have never been allowed to see the Court's file, nor have the lawyers that flew there to help them during the summer, the evidence file has been widely distributed. In fact, Judge Bakhtyari, and Prosecutor Mohammed Naeem Dawari offered the files up for sale on a regular basis.  The going rate for any journalist to see the file was $100.  The Secret NDS File cost $150 to photograph (that included Prosecutor Dawari delivering it to the journalist's guesthouse or hotel room), and for a $50 tip NDS would leave it with you overnight.  This picture in the graphic below, which appeared in Maxim magazine, was taken after dinner when Dawari brought the confidential, evidence file to a journalist's hotel (if this isn't breaking the chain of evidence nothing is).  Associated Press paid a $200 bonus to keep the file for two days.  In other words, neither the defense lawyers or the defendants could see, read, or even touch, the secret NDS file, but journalists could buy a copy at anytime.  Oh, yeah, this was a fair trial, just ask any first year law student.

For the record, no copyright violation by us here- the original photos are owned by the defendants, and Maxim Magazine used photographs of the photographs, for commercial purposes.  Therefore, Maxim is in violation of US Copyright Laws (copyright infringement; 17 U.S.C. §§ 101, et seq.), and Prosecutor Dawari and Judge Bakhtyari are liable for contributory copyright infringement (Copyright Acts of 1909 and 1976, 17 U.S.C. §§ 101 et seq.), among other things, such as Conversion, a civil tort.   Simply put, the photos belong to Task Force Saber/7, therefore, only they have the right to make a derivative work (a picture of the pictures).  Two very important cases deal with this.  First, the Twelve Monkey's Case, and second, The Devil's Advocate case.  In both of those films they infringed on another's copyright by using a derivative work in the film, without licensing the original work from the creator.  A third case, involved an original photograph of the US Supreme Court Judges in the late 1800's.  A recent case in the news involves a painting called "The Charged Image."  You may recall that Damian Loeb used a picture to create a painting.  He did not have the right to make a derivative work.  Nor did Maxim have the right to make a derivative work in this case.  Donald Trump, who wrote in the same issue, that he will sue anyone that uses his trademark phrase "You're Fired!," just bought Maxim.  Well Donald, what's good for the goose is good for the gander... suggest you get out your checkbook. 

On the other hand, our graphic with the cover of Maxim is fair use.  Why? Because it was "published" and therefore, we have the right to use it to tell a story about that issue's violation of copyright. 

The Geneva Conventions Books about the laws and rules that certain bloggers say do not exist.

Contrary to press assertions, reports, and theories, it is undisputable that all seven of the defendants had Geneva Convention POW status.  POW status is established by simply asserting the status upon capture or arrest in a conflict area.  At that point you have POW status.  After that, it is up to the high contracting party (one of the countries that is a party to the conflict) to either accept or deny status.  However, status continues until such time as a Geneva Military Tribunal meets and either awards permanent status, or rejects status.  But, and this is an important but, from the moment of assertion, a person "in custody" or "confinement" has automatic status the moment they assert that status, either verbally or in writing.  TASK FORCE SABER / 7 personnel did that very quickly, and followed it up in writing.

To Read More about the Geneva Convention and the POW Status Legal Brief Jack and his men filed with the Central information Bureaux in Geneva Switzerland, click on the button above.

What these guys need are lawyers, more lawyers-

Al-Qaida tried to kill Jack and the others on December 17, 2004.  In the process, two Iraqis, one Arab, and one Pakistani terrorist were killed, another Arab terrorist was critically wounded but survived.  Four Afghan military officers were killed defending the SuperPatriots.  Two of them were very close friends, including Colonel Sherzaman, who ran into the middle of the terrorists with just one magazine of bullets.  The Colonel killed two and wounded one.  The remaining terrorists critically wounded the Colonel, and then executed him twenty yards from the SuperPatriots.  Northern Alliance Generals quickly came to Jack's aid and rescued the unarmed Americans as they held off 300 terrorists with barricades.  That is what REALLY happened, so we assure you that press reports to the contrary are complete fiction and fabrication.

Warren Zevon sang about lawyers, guns, and money.  Jack doesn't need money, nor does he want it, but he says he sure could use some more guns and a lot more lawyers.  To find out more about that, just visit his Co-Counsel page:

Current On-Going Litigation
in the Afghan Criminal Case-

Legal Filings in the 2005 New Trial:

Appeals Court of Afghanistan

National Security Division

 NDS (Amniat),
                 vs.
Mr. Jack, Mr. Brent,
Mr. Ed, Major Ezmerai Amin,
Lt. Wahid Rasuli, Syhail Shohabi,
And, Sherzai Ahmadi,
Defendants.

Motion in Limine to Exclude Evidence Obtained and/or Presented in Violation of the Law & Motion To Dismiss Based
On Illegal Government Actions

To the Honorable
Judges Presiding:

The accused, as undersigned below, and having filed a joinder in all previous defense motions, hereby move this Court for an order to exclude, all unsworn statements of alleged victims based on perjury and other violations, unsworn witnesses, and statements taken from the accused through torture and illegal drug rendering.  Further to exclude all other physical evidence illegally obtained from any consideration by this court and use at trial.  Further, to immediately dismiss all criminal charges pending based on new evidence of actual innocence.  In support thereof:

Background Facts:

Defendants were illegally convicted of all charges in the Primary Court on September 16, 2004 and sentenced to lengthy terms of imprisonment.  Thereafter, defendants appeared in the Second Court (the Afghan Court of Appeals of the Supreme Court of Afghanistan), and engaged in several closed door hearings.  In November 2004, defendants were granted a Trial de novo (a completely new trial) and the convictions were declared null and void.

Over the next 45 days, several additional evidentiary hearings were held.  In the course of those closed door hearings, the Court of Appeals heard sworn testimony for the first time in the process (other than the sworn testimony of Mr. Jack which was ignored by the Primary Court Chief Judge).  As a result of that sworn testimony, from government officials, Ministry of Justice Police Officers, and Ministry of Defense officers, the Court of Appeals found all four Afghan defendants innocent and ordered the release of Major Ezmerai, Lt. Rasuli, Sohail, and Sherzai.  Although the Afghan defendants requested the Court delay their release until all seven were freed, a colloquy followed between Mr. Jack and the Court during which it was decided that all would be released with the agreement of Mr. Jack.  However, voicing strong objections, Lt. Rasuli, a Ministry of Defense employee, still refused to be released and opted to stay with the American defendants until such time as the release of all defendants.  Mr. Jack, with the unanimous approval of the Court, agreed that Lt. Rasuli would not be released and would remain with the group.  Hearings were subsequently suspended between December 7 and December 14, 2004 at the request of Mr. Jack and due to other Court business related to this case.

Over the next 30 days defendants were prepared to proceed, but it appears the American FBI has again successfully delayed this case for another 30 days and has still refused to return the evidence.  The US government continues to withhold evidence.

Reader Note- For the Record:

The defendants have repeatedly asked for the right to view the evidence against them.  They have never been allowed to do so.  No one in the defense has ever seen any witness statement, or ever seen a single shred of evidence against them.  All of the defense evidence, such as the tapes Caraballo made, the emails on Jack's computers, the film, photos, and documents signed by government officials and everything else that could help the defense, was all either destroyed or confiscated by the FBI and most of it was never allowed to be used at trial, except for a few videotapes the defendants were able to assemble.

This case is ready to continue with the trial de novo based on the merits and new evidence.  Further, due to exculpatory evidence uncovered by, and subsequently heard by this Honorable Court, additional hearings are required.

However, as much as the accused defendants appreciate the efforts and fairness exhibited by this Honorable Appeals Court, there still remains the issue of multiple violations of the Afghan Interim Criminal Code by the Primary Court, the NDS, and specifically, Judge Abdul Baset Bakhtyari.  The Afghan Interim Criminal Code, hereafter referred to as the Interim Criminal Code or Criminal Code is unbending, inflexible, and specific in its’ design and details of how a criminal investigation and trial must be conducted. 

 Reader Note- For the Record:

The Codes Journalists don't think exist.

This is the Afghan Criminal Code, and this is what the defendants'  based their defense on, but Judge Bakhtyari said, "it is more of a guideline than actual rules"- he had obviously seen Pirates of the Caribbean, but still allowed no parlay.  You can read more about it on the past filings page.  The Arguments and basis of the defense are outlined herein. [Note to Reader: Contrary to third string freelance reporters and basement weblogs, Afghanistan does have a formal written law, and this is the law....

However, in spite of the clear text of the Criminal Code in both English, Dari, and Pashtu, Judge Bakhtyari constantly ignored the Code, and stated on the record that the Criminal Code is just a guideline, and holds no valid force.  This is a complete misstatement of the law and facts.  The Rule of Law, a phrase so often yelled out in court by the Primary Court Saranwal (prosecutor) Nahim Dawari, is not a guideline subject to a Judge’s whims.  It cannot be superseded.  It cannot be altered or modified.  It cannot be ignored, and it cannot be violated.  To violate the rules of the Criminal Code is in itself a violation of law subject to punishment enforced against the government officials propagating the violation or violations.  The government is neither at liberty to violate it or ignore it.  To do so results in only one possible end.  The dismissal of the case in the interest of justice.

Rights, guaranteed by the Afghan Constitution and National Law, cannot be trampled.  The Criminal Code, like an chicken’s egg, cannot be broken by the government, and then once broken, put back together again and served for breakfast to the defendants.  Simply put, the Rule of Law, once broken, is permanently broken.

Reader Note- For the Record:

This Motion requested dismissal of the case based on the first Motion in Limine.

Motions To Dismiss in criminal cases are rarely ever granted.  they are usually just a formality and to put some defense position on the record for appeal processes.  However, in this case, there was a good reason why the various motions to dismiss should have all been granted.   You can read more about it on the Past Filings page.

Therefore, this Honorable Court has no choice under the law other than to dismiss the case in the interest of justice. 

The only other alternative is to exclude all NDS evidence- specifically statements,[1] and provide discovery of, and access to, exculpatory evidence, and evidence illegally removed by the American FBI, for use during the new trial.  And then, the Court must hold a full and fair public trial.

Reader Note- For the Record:

John Tiffany is an attorney from Bloomfield, NJ that specializes in federal criminal defense cases. 

By Mid-August 2004, Attorney John Edwards Tiffany had arrived from NY with Bob Fogelnest, a well-known criminal defense lawyer who practiced in the Hague. assembled.  It would not do much good.  The Taliban Judge ignored the "Rule of Law" completely.  More than 100 violations of 26 Afghan Law statutes continue below in the facts of the Motion:

This alternative would provide such a compelling case for a verdict of absolute innocence, that defendants actually prefer the second alternative and a final decision on the actual merits in the case.  Only through this venue can the accused regain their loss of reputation, freedom, and morality which has been unduly destroyed in the international community as the result of false accusations by international terrorists, by unscrupulous NDS officials who received money from third parties to prosecute this case.  By a judges and prosecutors who were former employees and followers of the Taliban terrorist regime, and by the American FBI which sought to discredit various factions within the US and Afghan governments.  Therefore, the accused request this Court review the following conduct by the Primary Court, the Primary Court Saranwal, and the American FBI:

Open a new window
in your browser and
read the U.N. Law.

A.               Violation of Article 15; which states that the arrest and trial are null and void and so declared when the procedure of the Criminal Code has not been followed.  This requires the immediate dismissal of all charges.  This is perhaps the most important Article of Law quoted in this case because it gives this Appeals Court the power to dismiss all charges and release all parties based on the intentional Criminal Code violations of Judge Bakhtyari, Saranwal Dawari, and the American FBI.  This Court has a moral, ethical, and legal obligation to dismiss this case under the law based on Article 15 of the Criminal Code.

B.               Violation of Article 16; which states that any and all violations of procedural provisions of the Criminal Code bring about the invalidity of the procedure if they are denounced by the interested party.  And further, that when that denunciation is made during investigation or trial the court has the right to make a decision, and must exercise that right to dismiss the case or will be overturned by the Courts of Appeals or the Supreme Court.  The accused did make these denunciations, and filed a written motion outlining the violations, and now this Appeals Court must dismiss the case or it will be removed to an international tribunal or court, which will dismiss it under international law and treaties signed by this government.

C.                Violation of Article 4, #1; because Article 4 assumes all accused are innocent until proven guilty, it limits the deprivations of human rights to the need for collecting evidence.  In other words, the Criminal Code actually allows for the torture of suspects to collect leads, but only for 24 hours (see: Article XX). 

1.     However, in the case of Mr. Jack, the torture inflicted was not for any investigative purpose, it was merely for fun.  Five others were also tortured to varying degrees, including; electrocutions, burnings, and beatings.

2.     The physical evidence of the torture was well documented by the U.S. Embassy Consulate Officer, and by four different doctors.  Formal complaints were lodged by the U.S. government.  Jack requested the formal complaints to be suspended because the abuse increased each time a complaint was made.

3.     These deprivations of human rights also require a dismissal of charges for violations of law by officials.

D.               Violations of Article 5, #4; Article 5 states in paragraph 4; the suspect and the accused shall not undergo intimidations or any form of physical or psychological pressure.

1.     However, Mr. Jack, Wahid, Ezmerai, and Sohail all underwent excessive abuse and torture in the first court, as evidenced by statements under oath and documents which were presented to this court in camera.

2.     All accused were threatened by NDS officials and foreign agents if they did not make written statements.  The First Court previously stated that merely because our “alleged” victims claimed they were abused the Court was forced to let them free under the law.  It is clear on the record that the reason for this was because Judge Bakhtyari and Malawi Sidiq were close friends and it is indisputable that both were Taliban officials.  It is also now indisputable that the prosecutor was a former Taliban official.

3.     As an example, Sherzai Ahmadi testified in the Court of Appeals during the December hearings, that he was not only tortured and beaten by NDS, but was given narcotics (Diazepam/Valium) to render him helpless while NDS forced his thumbprint on multiple written confessions (his is in fact, illiterate).

4.     In summation, in accordance with Article 5, the statements of all accused may not be used, read from, quoted, or considered, and all criminal charges should be dismissed for those tortured.

E.                Violation of Article 5, #5; which states that all statements shall be made in a condition of absolute moral freedom.

1.     Defendants were tortured, threatened, beaten, burned, electrocuted, and drugged.  Some defendants were unable to resist the torture and made statements during the torture or under the influence of psychotropic drugs.

2.     These statements were coerced and therefore can not be used or considered.

F.                 Violation of Article 5, #6; which states that the accused have a right to abstain from making any statement to the police. 

1.     Not only were none of the accused informed of this right, they were actually threatened with beatings, hangings, and electrocution if they refused to sign the statements.

2.     Therefore, the statements can not be used.

G.               Violation in Article 5, #7; which states the police, the Saranwal, and the Court, are duty bound to clearly inform the accused that they have a right to remain silent, right to representation at all times by defense counsel, and right to be present during searches, examinations, and trial.

1.     No NDS agent, police officer, or FBI agent, EVER informed any of the accused as to these rights, nor did the Saranwal, nor did the Court.  In fact, defendants have repeatedly asked for counsel, asked and demanded to be present during searches and examinations, and refused to give statements until they were either tortured or threatened or drugged.  Jack and Ezmerai[2] refused to give statements even after brutal extensive torture.

2.     These rights in the United States are known as the Miranda Rights, established more than thirty years ago in the case of Miranda vs. California.  They are guaranteed by International Law, by the Geneva Conventions,[3] and by the Afghan Interim Criminal Code.  They are un-waiverable.  In all cases the failure to advise an accused of these rights invalidates all statements, and in cases such as this, requires their release.

H.               Violation of Article 19; which states; “A suspect or the accused is entitled to have a free defense attorney appointed to him…” 

1.     As stated in several other motions filed in the Primary Court, the appointment of a defense attorney is not a privilege under the law, it is a right, and can not be denied upon petition of the accused.

2.     The failure of the Court to appoint a defense lawyer when requested to do so was a severe violation of the Code.  Judge Bakhtyari knowingly and intentionally violated this rule.

I.                   Violation of Article 20; which states; “The accused who does not know the language used during the investigations and trials…shall be given an interpreter…” 

1.     This does not say “may” be given an interpreter.  It says “shall,” meaning must be given one.

2.     Article 20 states the interpreter shall be given to the accused for the purposes of 1) explaining the charges, 2) explaining the indictment, 3) assisting in interrogations of witnesses, and 4) confrontations of witnesses, the Saranwal, and the evidence.

3.     Each of the Americans requested an interpreter at each Primary Court hearing, at each meeting, and at each trial appearance.  We lodged formal complaints with the United States Embassy, the Court, the Office of President Karzai, the Geneva Convention Central Information Bureaux in Switzerland for POWs, and with the Red Cross Legal Division.  Each time we were assured by Judge Bakhtyari that the issue was being addressed.  In fact, Mr. Brent and Mr. Jack requested their own interpreter on at least 7 (seven) different occasions in open court.

4.     Throughout the trial we had no idea of what was being said– in other words, the events and testimony of the trial were being conducted in secrecy – because we did not know what was being said.  This not only violates Article 20, but it also violated at least six other Articles that “require our presence” at every stage of the proceedings.  If you do not understand the language being spoken, then you are not effectively present, which is another violation of the Criminal Code.

5.     Further, the interpreters that were present in the Primary Court neither translated the entire statements nor translated our words correctly.  Those translators in the Primary Court were used solely for the Court’s convenience and for the press by Judge Bakhtyari.  They were not defense interpreters.  The only interpreter[4] that actually did his job, and tried to translate correctly, was promptly fired by Judge Bakhtyari and threatened with arrest if he returned to court.

6.     Additionally, it is clear and known by the international community present that the interpreters were in fact altering the statements of both sides by concealing prosecution statements from us, and by altering the statements of the accused and of prosecution witnesses.  As an example, the court’s “former” communist regime official, who acted as a translator, stated in English that prosecution witnesses said they were hung upside down and doused in boiling water.  This was a complete outright lie.  These statements were never said; only used to incite the international press.  When our own translator, Lt. Rasuli, a Ministry of Defense translator attempted to inform Mr. Jack that the translation was incorrect and the translator was intentionally lying, Lt. Rasuli was later beaten, threatened with execution, and kept in full body chains for thirty days.

7.     This was a severe violation of the Interim Criminal Code, and requires immediate dismissal and misconduct charges against Judge Bakhtyari and the Primary Court.

J.                  Violation of Article 23, #3; which states the Saranwal is duty bound to evaluate and make available exonerating or exculpatory evidence.

1.     Although exculpatory evidence exists, the defense has not been allowed to access it.  We have never seen the files (except when waved in the air in court by Judge Bakhtyari), never been given a copy of the file (even though this has been promised to us on at least four occasions), never been allowed to copy the file (even though our American attorneys were promised a copy by Judge Bakhtyari), and never allowed to use the file in court proceedings.  This was in complete violation of the law.

2.     Additionally, the American FBI seized evidence, destroyed evidence, and concealed evidence.  In the first incident, the American FBI confiscated all physical evidence in the case.  This occurred in mid-July 2004.  The FBI, which has NO JURISDICTION in this case, and NO AUTHORITY to view, examine, or take the evidence, removed extensive evidence from the NDS evidence room.  This evidence included approximately 200 videotapes, 500 pages of documents, more than forty rolls of film.  Even if the FBI were allowed to view the evidence, under the law it must be done in the presence of the accused.  Instead, the evidence was removed.  Once the evidence was removed and in the illegal possession of the American FBI, videotapes were erased, documents either destroyed or lost (they were never returned) videotapes missing, and all film missing, along with laptop computers and hundreds of emails between US government officials and the accused (and also Afghan government officials, including the offices of the Vice-President and President himself).  After much argument in court, and extensive pressure by Caraballo’s defense lawyer, the FBI returned SOME of the evidence during an August trial.  Still missing were videotapes, documents, all film, and the laptop computer and emails.  All of the evidence missing was completely exculpatory in nature and would have provided a complete defense of the accused. 

3.     During the Appeals Court process evidence continued to disappear.  Prior to that, the videotape in which Minister Qanooni, a member of the National Security Council, authorized the arrest of one of his employees, turned up missing the day after a portion was played in Court proving the initial statements of the accused.  Then, in a completely illegal and unwarranted interference in the appeals process, the FBI AGAIN CONFISCATED the evidence on or about November 27, 2004, just one week before the accused were to use the remaining videotapes for their defense.

4.     Because ALL of the exculpatory evidence is now missing, this Court has no choice under the law but to dismiss the entire case and find the FBI guilty of negligence, witness tampering, destruction of evidence, and theft of evidence. 

K.               Violation of Article 31, #1; which states the police have a maximum of 24 hours to inform the accused of the reason for arrest and interrogate them.

1.     No interrogations took place for more than 72 hours, only torture took place.  Interrogations continued for approximately 90 days.

2.     NDS officials, and General Babajan told the accused that the FBI and CIA only wanted to talk to us.  The CIA denied being involved at all (which is a fact, the CIA  had no knowledge of this incident).  It is now clear from statements of officials which have testified during closed door sessions, that the entire matter was orchestrated solely by the FBI, and no other agency, American or Afghan.  Further, American FBI agents were present at NDS when American and Afghan detainees were interrogated and severely tortured repeatedly during questioning, an egregious violation of rights by “actors” of the FBI and FBI.

3.     Therefore, all evidence obtained after 24 hours must be excluded from evidence and this includes all statements made by the Afghan accused, and all other statements in the file, both signed and unsigned.

L.                Violation of Article 32, #3; which states that defense counsel and the accused have the right to be present during all searches, seizure of objects and documents, inspection of premises, taking of photos and interrogations, and all investigation/questioning phases.

1.     This is guaranteed by Article 38 of the Code.  But in this case none of the accused were allowed to be present during any of these activities.

2.     As an example of how this could provide the NDS with false evidence and false statements, Mr. Jack was not allowed to be present for the questioning of Defendant Sherzai.  In Court the Saranwal told the Court that Sherzai told the police that Jack threatened to kill him if he ever discussed the terrorists.  However, Sherzai, says he never said this. 

3.     In fact, Sherzai testified twice under oath during the new Appeals Court trial, that he was beaten, he is illiterate, he refused to sign a statement against Jack, and that he was then given Valium, rendered semi-conscious and his thumbprint forcibly placed on a statement he never read or made.

4.     This violation requires the exclusion of all statements and prosecution evidence.  More importantly, it requires the complete dismissal of the case under the law.

M.             Violation of Article 36; which states that indictment must be delivered to the Court within fifteen days of the arrest, and the Court may extend it an additional fifteen (15) days, and it must be immediately presented to the accused.

1.     Even if the Court extended the time, 30 days long passed and the accused have still not see the indictment in the Primary Court.

2.     This egregious prejudice to the defense by Chief Judge Bakhtyari and the Primary Court, requires dismissal.

N.                Violation of Article 38; which states defense counsel and accused have the right to be present during all interrogations, during searches, and will be notified by the Saranwal during the investigation phase to be allowed to be present during all searches, confrontations, and questioning.

1.     Not only were the accused specifically not informed, they were never allowed to be present during any of these activities, and during the investigation there were dozens of interrogations, numerous searches, and repeated questioning.

2.     As examples; Ed Caraballo was repeatedly questioned alone, and in private by the NDS after he had defense counsel, and after he told NDS interrogators that he wanted his lawyer present he was threatened.  But nothing is more alarming or disturbing then the part the FBI played in this case.  Your Country’s freedom is new, your people are not yet trained in the law, but the FBI is highly trained and educated in these rights and principals.  During the investigation American FBI agents repeatedly violated every one of these articles. 

·      The FBI removed exculpatory evidence from NDS
·      The FBI Destroyed evidence by erasing tapes
·      The FBI destroyed evidence by destroying MOD and DOD documents
·      The NDS acting under the orders of the FBI, conducted repeated interrogations with the accused or without defense lawyers present
·      The FBI took custody of exculpatory evidence illegally in Mid-July 2004
·      The FBI conducted searches and took photos without defense counsel or the accused present.
·      The FBI seized exculpatory evidence again on or about November 27, 2004 

3.     The FBI continues to refuse to return the documents, computer files, computer, videotapes, film, and other evidence, and has refused to provide Ghulamsaki’s confession to the Court or the defense, allowing an admitted and known terrorist to kill again (the August DYNCORP bombing).  Further, the NDS and FBI have intentionally withheld the recent arrest of a Supreme Court Judge for his implication in the DYNCORP bombing, and have intentionally released false information to the press stating that the arrested judge was from the Panshir Province, when in reality, he was a close friend of arrested terrorist Malawi Sidiq, and housed the DYNCORP bombers.  This interference by the American FBI in the investigation, withholding of exculpatory evidence and misconduct warrants not only the exclusion of evidence but the immediate dismissal of all charges.  Furthermore, this also violated Article 39, #6.

4.  From the start, this case was illegal.  The NDS officials who entered the compound in Karte-Parwan were in fact agents of the FBI and therefore also violated the 4th Amendment of the US Constitution, International Law, and Afghan Law, they did so in violation of Articles 32, 37, and 38. 

O.      Violation of Article 40; which states the Saranwal shall give notification to the accused of all investigation activities such as interrogations so that the accused may be present.  No notifications have ever been given to any activity.  Interrogations were continually conducted for 5 months without any defense representation EVER.  As just one example, in September, just days before the trial, NDS was still conducting secret interrogations of witnesses without informing the defense.  One of these interrogations was of the driver and bodyguard of General Bishmullah Khan, the Deputy Defense Minister.  Not only should the defense have been present[5] but they should have been informed of the interrogation and given a copy of any statements made, especially because the statements were exculpatory in nature.[6]

P.      Violation of Article 42; preparation of trial; which states the indictment shall be served on the accused at least five (5) days in advance.

1.     No indictment was ever served on the accused, in the first court.  Although the accused requested a copy of the indictment on four (4) separate occasions in open court, and every time Jack met with the primary court Saranwal, and although the Primary Court ordered the United States Embassy to provide a copy, no copy was ever provided to the accused, until after the second new trial began.

2.     In fact, only a day after the Primary Court ordered the United Stated Embassy to provide a copy of the indictment to the accused the United Sates government advised Mr. Jack they would not provide a copy of the indictment because it was not their responsibility.  The Embassy finally provided a copy several months later, which is mentioned in paragraph 1 above.

3.     This Violation also requires dismissal of all charges. 

Q.               Violation of Article 43; which states that the accused and defense counsel are entitled to examine the documents (including photographs) in the files and the objects seized.

1.     This is one of the most egregious and severe violations of the Criminal Code.  NOT ONCE have the accused been able to examine any court or evidence file.  The files are waved in the air at the accused, shown to the press, shown to alleged victims, and have been repeatedly promised to the accused.  But still, after ten court appearances in six months, the files have never been seen by the accused.  However, the NDS files have been sold to the press by the Primary Court Prosecutor, Saranwal Naeem Dawari.

2.     Furthermore, the NDS files were given to reporters to review overnight and therefore the chain of evidence was violated and broken.  The files are no longer inviolate, and therefore are tainted evidence.

3.     With evidence taken by the FBI, the chain of custody destroyed, documents missing, and repeated violations of almost every section of the Criminal Code this case is a travesty of justice.  No matter what this court does to correct these injustices it is too late, the damage is done, it was done long before the Second Court took over this case.  It was done by untrained police who broke the rules in their zeal to pander to, and help, the FBI.  It was done by NDS officials and the Primary Court Saranwal who were under pressure by the American FBI, and it was done by the FBI.  This Court has no choice, when faced with this many blatant and intentional violations but to exclude all prosecution evidence, all statements of all persons (and require testimony as set forth under the law), and finally, to dismiss all charges. 

R.               Violation of Article 48; which states the Court will give verbal notice to the accused of each successive hearing date and hour, but no notice has ever been given to the American accused because the final orders and the statements of the Primary Court were never translated.  Even still, the accused are only give a few hours notice before a hearing starts.  This press is notified days before, but the accused are usually told only a few hours before.  We are still not notified of the date of new trial hearings.  This IS COMPLETELY ILLEGAL.

S.                Violation of Article 50; which states all witnesses over the age of 14 (Fourteen) are duty bound to swear under oath in Allah’s name before testifying to tell the truth and be honest in their testimony.

1.     No prosecution witness called by the Primary Court Saranwal or the Primary Court was ever required to swear under oath or in Allah’s name, or has ever been required to testify under oath.

2.     Only defense witnesses have ever testified under oath in the new trial.[7]

3.     All NDS testimony must be stricken under the law and not used in this case.

T.                Violation of Article 52; which states that the order of the hearing will be explained to all persons present by the Head of the Court.  Nothing was ever explained to the accused by the Primary Court.  The accused had no idea of what was going on, or in what order it would take place.

U.               Violation of Article 53; which states the court reads out the indictment (#3).  This prevents the Primary Court Saranwal from reading the indictment incorrectly or adding inflammatory statements to incite the Court, which is exactly what happened in this case.  In fact, Saranwal Dawari consistently added wild accusations and new lies on a repeated basis to stir up the press and audience into a frenzy.  The defense is now aware that several of the statements in the indictment alleging immorality, were not provided by witnesses in the case, but were unsubstantiated rumors told to Dawari during dinner sessions with journalists, and which he later added into the indictment as fact.

V.               Violation of Article 53, #3d; which states the investigating officers must make oral reports at the hearing and provide sworn testimony.

1.     Because the Court has relied only on written investigation reports, the accused have been unable to cross-examine or interrogate the investigating officers.

2.     The denial of the right to confront also violates Articles 5, 15, 16, 32, 43, 50, and 53g of the Interim Criminal Code.

3.     Additionally, the accused MUST be allowed to call the following witnesses: Mustak, Modafea, all NDS investigators, Mohammed Naeem (CIA Liaison on loan to the FBI), Amrullah Saleh (who personally tortured Idema and Rasuli), and Police Commandant Babajan (who greeted Jack at the airport on arrival), NDS Deputy Director Engineer Ali (who worked with Jack during the 2001-2002 war on a weekly basis at the request of the US government), and Police Commandant Basir Salangi (who worked with Jack during the Shomali battle in 2001 and was the officer in charge during the Sidiq raid).

W.             Violation of Article 53, #3g; which states the accused can ask questions of the witnesses.  However, three Saranwal witnesses “testified”[8] and not once were any of the accused or the defense lawyers allowed to ask questions.  Furthermore, accused were forced to testify but their co-defendants (the other accused) were not allowed to ask them questions, which was a violation of law which requires dismissal.

X.               Violation of Article 55; which states that the records and statements of witnesses can only be used as evidence if the accused or their defense counsel were present during the statement and only if they were allowed to ask questions and make objections.  Therefore none of the statements or testimony of any witness can be ever be used in court or for any decision.

Y.               Violation of Article 56; which states if the Saranwal adds additional facts or crimes to the indictment (he did verbally at almost every Primary Court hearing) the accused must be notified in advance to prepare a defense.  During each Primary Court hearing the Primary Court Saranwal added facts, accusations, and new crimes to the case, yet the accused were never notified in advance, which was a violation of law which requires dismissal.

Z.                Violation of Human Rights; there is clear and convincing evidence in the possession of the United States Embassy Consular Officer that there was torture in this case, but that torture was not inflicted upon the terrorists.  That torture was inflicted upon the accused in violation of Article 5, by the NDS and with the knowledge and approval of the American FBI.

1.     The evidence consisted of eyewitness observations of physical injuries, and medical reports.

2.     The accused must be allowed to call witnesses to testify in regards to these injuries and torture, and must be allowed to call the government officials who participated in the torture.  In fact, anyone at the NDS prison could testify to hearing screams for four and five nights throughout the prison.

3.     The FBI agents that witnessed this torture, and later, the affects of the torture, must also be put at our disposal for providing testimony to this Court.

Conclusion 

Even ignoring, discounting, and agreeing with all of these violations, blatant on their face, there is one violation that rises above all else.  That is the clear statements made by Judge Abdul Basset Bakhtyari, a former Taliban Judge who was allowed by this government to hear a case against Americans, one of which had been fighting the Taliban and al-Qaida terrorists since the first day of the war in 2001.

That was a clear case of injustice and earmarked by egregious prejudice by Judge Bakhtyari against the American and Northern Alliance defendants.  It was punctuated and made clear by Bakhtyari’s statements to the international press, before he EVER heard one shred of evidence, that all of the defendants were guilty.  In fact, Judge Bakhtyari stated on the record with the press, long before the trial ever began, that all defendants were guilty, and announced the defendants’ sentences 60 days before the verdict was rendered in Court and before the formal trial ever began.

Additionally, because the Court used a former Taliban Prosecutor as the Saranwal, and a former Soviet regime official as the interpreter, without disclosing this to the defense, this violated the presumption of innocence and the fair trial doctrines under the Criminal Code.  These were egregious violations; these officials announced to the international press their guilty decision one month before the verdict.  In fact, Judge Bakhtyari stated in open court that the defendants were part of the “resistance forces,” (maybe he considers Anti-Taliban Forces the “resistance”) yet he failed to allow any discussion of defendants’ Geneva Convention Status.

Further, the violations of Article 4, the presumption of innocence, require dismissal of all charges, and sanctions against Taliban Judge Bakhtyari for violations of the law, and the support of terrorism, which was tantamount to State-Sponsored Terrorism because they were Karzai officials.  There is no doubt that the Criminal Code was violated in every way possible.  Nor is there any doubt that the entire trial violated the Criminal Code, the rules of International Law, and the Geneva Convention, which takes precedent over all else in the case as an international treaty.  The thought that a Taliban Judge, a Taliban Prosecutor, and a former Soviet “Interpreter,” could arrest, try, and convict American counter-terrorist operators without a piece of evidence, with a single witness under the law, and without a shred of due process, is not unfathomable, but criminal and contrary to every assertion of freedom this government has given to obtain international assistance and support.

WHEREFORE, this Court must exclude all evidence, statements, witnesses testimony and physical evidence obtained up to this point, and may not consider it, and therefore must dismiss all charges for more than 26 intentional violations of the Criminal Code by the Primary Court, the NDS, and the American FBI, which are equally culpable for the violations which require immediate dismissal.

 This 11th day of January 2005

_______________
Jack
_______________
Brent Bennett
_______________
Ed Caraballo
_______________
Lt. W. Z. Rasuli Banderas
_______________
Major Ezmerai Amin

John Edward Tiffany, Esquire
Attorney For Defendants
PO Box 190
Bloomfield, NJ  07003  USA
Ph:   973/566-9300
Fax: 973/566-0007

Jack Idema, Prisoner of War
For the Defendants
c/o Russel Brown, United States Consul
United States Embassy – Afghanistan
6180 Kabul Place, Dulles, VA 20189-6180

Click on the Banner Above to Return Home

Disclaimers, Notices, and Legal Threats
With the exception of Magazine covers or News Logos or headline photos, or graphics depicting news
and blogging sites being sued by the SuperPatriots, ALL information on this site is
copyrighted by the authors, The SuperPatriots, and/or Caraballo Video/Ed Caraballo.
It may not be used without permission, nor reprinted in any way. News agencies and licensed educational institutions and/or universities may link to this site without permission.  No Blog or Blogger may link to this site in anyway without written permission, specifically, but not limited to Flogging The Simian.  No news organization involved in litigation with any one of the SuperPatriots may link to or quote from this site, specifically including; Columbia Journalism Review, New York Magazine, The Dallas Morning News, or the Associated Press.
Any violation, regardless of how small, will be met with litigation under the
United States Federal Copyright Acts of 1909 and 1976, 17 U.S.C. §§ 101 et seq.

EVERYTHING ON THIS WEBSITE IS COPYRIGHT PROTECTED
UNDER US COPYRIGHT LAW AND THE BERNE CONVENTION

All sections about the past and ongoing criminal case in Afghanistan were built with the assistance
of the American & Afghan Prisoners of War in Pulacharke Prison.
It was assembled and created as a public service by citizens concerned with truth and accuracy in the media.
 The world's press have already told the other side more than a thousand times, and rarely truthfully. 
This site is differs from all other reports because it is based on fact, not fiction.

© 2005 The SuperPatriots - Copyright Acts of 1909 and 1976, 17 U.S.C. §§ 101 et seq.

SuperPatriots is the Service Mark of American and Afghan Patriots in the War on Terror

Site Designed and Donated By RDX Graphics Corporation Ω The Last Line of Defense