Justice Department lawyers found themselves fending off judicial criticism this month in the federal district court in Chicago as they argued against a defense attorney's effort to depose several witnesses in Afghanistan in a bribery prosecution.
Kirby Behre, a Washington partner at Paul, Hastings, Janofsky & Walker, said the depositions in Afghanistan are essential because the witnesses and other evidence are there. At a hearing Feb. 16 in the U.S. District Court for the Northern District of Illinois, Behre said the witnesses he wants deposed have exculpatory information. And the witnesses, he said, have no desire to travel to the United States to participate at trial.
Behre, who spent three days in Kabul last December, said in court that the witnesses fear they’ll be buying a “one-way ticket” to the United States if they come here—and then are detained as material witnesses. (Behre unsuccessfully tried to get a government security escort for traveling in Afghanistan.)
Charges were filed against the Afghani company AZ Corp. and an owner, Assad Ramin, in Chicago in August 2008. Prosecutors say Ramin and others participated in a conspiracy to win Defense Department contracts through bribery. Behre represents both AZ and Ramin.
At the hearing earlier this month, lawyers from Justice’s Antitrust Division urged Ashman to reject the request for depositions in Afghanistan.
Trial attorney Kenneth Gaul said in court that Judge Ashman needs to be “very certain” that the defendants will suffer a constitutional deprivation before he sends “officers of the court into an active war zone where you’re putting the officers of the court, the witnesses themselves, the interpreters, and everyone else involved in the process in harm’s way.”
Ashman was puzzled. “That’s very strange coming from somebody from the government who refused to give security to the defense counsel who wanted some security in order to go to Afghanistan to investigate this case. That’s a very surprising comment. You guys can do it, but they can’t. That’s not fair, is it?”
An analysis of the risk is allowed when it comes to discussing depositions in a foreign country, Gaul said. “With regard to the dangerousness, look, I was there, and I know how dangerous it is,” Behre shot back.
The government knew of the danger in Afghanistan when it brought the indictment, Ashman said. He granted the defense request for depositions there.
Antitrust Division trial attorney Mark Rosman said the court hearing that the government is not interested in detaining the witnesses Behre wants to depose. "We would give them safe passage letters. We are not interested in them," Rosman said in court. Behre said the witnesses expressed skepticism over safe passage letters.
The Justice Department has not said whether it will challenge the ruling by asking U.S. District Judge David Coar to review it. No court papers had been filed by this afternoon.