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When the tall Afghan soldier in the dark blue shalwar kameez handed Canadian Major Anthony Farris a carefully folded piece of paper two days ago, he did so with understandable reluctance.

"It's the only proof he has that he should have been released [from an Afghan National Army prison]two months ago," Major Farris said yesterday. "Apparently, it's up to the prisoners to tell the guards when they should be let go."

Sometimes, presumably, the guards listen, but not in this man's case.

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Although the document says clearly he ought to have been a free man in June, he remains at the grim two-storey tower, made of crumbling concrete and surrounded by barbed wire, that serves as the prison for the ANA's 205th Corps.

In fact, no one at the jail seemed to know much about what the man's crime was, or quite what his sentence was, or if it had been extended or if it was being appealed.

All that the piece of paper says for sure is that he was tried and convicted, and all that's certain is that he's already done two months longer than he was supposed to have served.

It's a typical case: Of the nine prisoners Major Farris spoke to this week at Camp Hero, home base for the 205th and adjacent to the main coalition base at Kandahar Air Field, only two admitted to knowing why they were in jail.

"They're telling you lies," Colonel Sher Ahmad Zarak, the ANA's top legal adviser, told Major Farris yesterday with a shrug, and of course, they well might have been, there famously being no guilty men in prison anywhere.

But it's the fact that the jail's official records answer few of these questions - the why, what and when of the prisoners' convictions and sentences - and the dubious nature of the process that troubles Major Farris.

It's not that the ANA doesn't have its own justice system and rules; it does, although the code is written in Dari, one of the country's two major languages, while many of those in the Kandahar area speak and read Pashto.

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But encouraging military lawyers, prosecutors, judges, jailers and ANA commanders to follow the dictates of army laws and more important, to abide by the spirit of relative fairness to the accused that the laws embody is part of Major Farris's new job.

A lawyer with the Judge Advocate General, or JAG, in Ottawa, he's the first Canadian legal mentor sent to Kandahar, part of the ever-broadening reach of Canada's Operational Mentoring and Liaison Team, colloquially known as the OMLT (pronounced omelette).

In a country where pushtunwali - the unwritten feudal laws for living that govern the Pashtun people, including an ancient honour code that incorporates the concept of badal, or revenge - still exerts a firm grip on the culture - pushing another sort of law is a hard sell.

What Major Farris, like other OMLT mentors - and they're everywhere, working within Afghanistan's military and civilian justice systems and embedded in ANA units and at brigade and corps headquarters - is really trying to do is what strategic planners and non-governmental organizations call building capacity.

What that means is increasing the ability of Afghans to run their own show, with decreasing reliance on foreign or coalition nations for help.

"We're the way ahead for Afghanistan, we're the exit strategy," Captain Robbin Dove told The Globe and Mail recently. "If we [coalition nations such as Canada]want to leave this place, we have to push forward at training."

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Capt. Dove is posted at a small base at Ma'sum Ghar, where he is the mentor for the operations officer of the 3rd Kandak (or battalion) of the 205 Corps, Captain Rohallalha Safi.

"We need education," Capt. Safi said in a recent interview. "We need technical guys."

At Ma'sum Ghar, Capt. Dove and his boss, Major Jean-Sebastien Fortin, live cheek-by-jowl with their ANA counterparts, the officers of the kandak, sharing meals and conversations. While there's little the Canadians can teach Afghans about fighting -"They've been fighting all their lives," as Major Fortin said - they can help with logistics, the movement of supplies and big-picture operational planning.

If capacity-building is tough to define and describe, a wide-ranging discussion Major Farris had yesterday with Col. Zarak goes some distance to illustrating it.

Working with an Afghan interpreter, Major Farris told the colonel what he'd found in the little jail, and noted that some of the prisoners, not yet tried and some not yet even investigated, were alleged to have committed only minor offences and yet were locked up.

"In our system," Col. Zarak said, "whether you are accused of big or little offences, some people might escape."

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"But according to your military procedure code," Major Farris said, "in order to keep them in prison [before trial,]you have to have 'good and legal' reasons to believe they're likely to escape, not that they might ... you have to have proof that something will happen, not just think it."

"I rely on the fact that they will be convicted," the colonel replied serenely.

"But the starting position of every offence is that they're innocent," Major Farris said. "Otherwise, that is against your constitution."

"I knew you would say this," Col. Zarak replied, grinning. "I was telling you my feelings from my heart."

"Lawyers all over the world face that dilemma," Major Farris said. "The law and the heart in conflict. Our hearts won't always be right. We have a saying in Canada, 'Better that 10 guilty men go free than one innocent man go to jail.' "

"We also have that," said the colonel, finally agreeing that he would talk to the prison manager.

Then Major Farris brought up the man who should have been released in June, and showed him the folded paper that said so.

"When the judge sentenced him for three months," the colonel said, "the prosecutor didn't agree, he said he must do more time. The prosecutor said his crime was very bad."

"But it's not up to the prosecutor," Major Farris said. "The judge sets the sentence; your prosecutor can recommend it, but the judge sets it."

"No, no," Col. Zarak said, "in our law, it says the prosecutor can go against the judge."

Major Farris asked to see the relevant section, and while a clerk went to fetch the code, the colonel said that the man had witnessed a murder, and then brought the alleged perpetrator, a soldier, to the governor's house, when he should have been taken to the ANA: That was his crime.

The clerk returned with the code, and Major Farris had his interpreter note the section - 47 - and attempt to translate it. But the interpreter was unfamiliar with some of the Dari words, and the two men agreed to discuss it again today.

Last night, Major Farris researched Section 47 and discovered, as he suspected, that while the prosecutor could appeal a sentence, though the time for that in this case has long passed, he couldn't arbitrarily overrule a judge.

He printed off the relevant law, and will be back at it with Col. Zarak today, the hope not only that one ANA soldier might be released, but also that the notion of procedural fairness will take root: That's capacity-building.

cblatchford@globeandmail.com

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