Saturday, February 6, 2010

(On Aafia Siddiqui) Legal eye: Blinkered Justice By Babar Sattar

The writer, Babar Sattar, is a lawyer based in Islamabad.
Posted Saturday, February 06, 2010

Original Article Posted here

Opinion Archive
The News International Pakistan

A Manhattan jury has condemned Dr Aafia Siddiqui for attempted murder of American soldiers and FBI agents in Afghanistan, on what appears to be pretty flimsy evidence. The prosecution theory has been that the 37-year-old neuroscientist, with a degree from MIT and a PhD from Brandeis University, was mixed up with Al-Qaeda and had come to Afghanistan of her own volition as an enemy planning attacks against the US.

That at the time of her arrest in July 2008 she carried in her handbag do-it-yourself dirty bomb instructions as well as a list of New York’s landmarks deemed prospective targets. When apprehended, she grabbed hold of a US army M4 rifle “lying around” and fired two rounds of shots at US soldiers in an Afghan police station. While no US security personnel were wounded, the soldiers responded and hit Aafia with two bullets, as a consequence of which she lost consciousness. The jury bought this piece of fiction on Wednesday and found her guilty.

There seem to be some obvious holes in this theory. There has been no effort to determine how Aafia got to Ghazni in Afghanistan. As she was missing since 2003, was she a one-woman contingent, or did she have other accomplices who were conspiring alongside to implement sinister plans against US interests? Given that one of her three children was returned to Aafia’s family in 2008, was he recovered by the US and Afghan authorities from Al-Qaeda in Afghanistan? Would details of where the child was being kept by Aafia not reveal the identity of her accomplices? If she was actually planning to carry out a terrorist attack outside the governor’s building in Afghanistan at the time of her arrest, why was she not armed?

And if she was an enemy combatant working with Al-Qaeda, and incriminating evidence was found on her person, why were no terrorism-related charges brought against her? Given that the FBI put her name on the most-wanted list of Al-Qaeda suspects, would it not have been appropriate to try her for aiding and abetting terrorism, as opposed to shooting at US soldiers in an attempt to get away from police confinement?

Even on the charge of firing at American soldiers and agents, why could the FBI provide no forensic evidence that M4 bullets were actually fired in the police station, as claimed by the prosecution? Why were bullet casings or bullet debris not recovered from the crime scene? In this scientific age, why did the prosecution have to rely on the testimony of ballistic experts, as opposed to empirical evidence?

The proponents of Aafia Siddiqui have a different theory, which goes like this. Aafia was suspected by the US of being an Al-Qaeda affiliate, and on its prodding, Pakistani intelligence agencies picked her up from Karachi, along with her children, in 2003. A spokesperson of Pakistan’s interior ministry admitted in 2004 that she had been handed over to US authorities by our intelligence agencies. She was then kept in a secret prison from 2003 to 2008.

The media speculated her presence at the Bagram facility after British journalist Yvonne Ridley claimed that Aafia was Prisoner No. 650 who was being kept in secret detention by the Americans. As the matter could no longer be hushed up, material such as bomb-making instructions and New York targets were deliberately planted upon her to file charges.

Whether or not Aafia had links with Al-Qaeda was not the question before the New York court that convicted her this week. The trial thus makes a mockery of justice, because while no terrorism-related charges have been brought against her, the entire prosecution theory rests on the assumption that Aafia is an Al-Qaeda affiliate. The jury has found that she was guilty of the act of shooting at US soldiers.

However, her presence in Afghanistan to harm the US and her criminal intent (mens rea in criminal-law parlance) has not been established through unshakable evidence. To the extent that her connection to terror plots was established through convincing evidence, no one other than extreme rightwing conspiracy mongers would find her conviction problematic. But on the basis of insinuations, circumstantial evidence and eyewitness testimonies, the jury have elected to find her guilty of an offence that assumes her Al-Qaeda identity without subjecting the assumption to requirements of proof. This is deeply problematic.

The US has a decent justice system, and with proper legal assistance, problems with the evidence presented at the trial could be made apparent at the appeal stage. But let us remember that providing justice remains an ideal for any justice system, and that ideal continues to be frustrated on an everyday basis as social prejudices and institutional malpractices find their way into the justice system. Bigotry certainly threatens to affect jury trials even more.

Statistics regarding the US justice system establish two things. One, that despite the civil rights movement and momentous anti-segregation decisions such as Brown vs. Board of Education, the conviction rate for blacks has remained much higher in comparison to whites during the later half of the 20th century. And, two, despite the emphasis on due process and all safeguards implicit within the justice system, there have been innumerable instances of grave injustice meted out to individuals affected by social and cultural biases.

In view of such injustices, the Innocence Project was set up in the Cardozo School of Law in 1991, which uses DNA evidence to help prisoners exonerate themselves. So far, almost 250 innocent convicts have benefited from such evidence and won their release. For example, James Bain was released in December at the age of 54, after spending 35 years behind bars for the crime of abduction and rape of a child that he had not been involved with. Similarly, James Lee Woodard was released in 2008 after serving a prison term of 27 years for a murder that he did not commit. Would Aafia Siddiqui have been convicted on the exact-same evidence if, instead of being a veiled Muslim denouncing Zionist conspiracies in the New York courtroom, she had been a composed blond white women wearing a Versace outfit? The challenge for any legal system is to prevent invidious societal prejudices from influencing dispensation of justice. In the first instance, the New York district court seems to have failed in rising to this challenge.

Our president, prime minister and the Foreign Office have expressed deep concern over the ruling and have announced their intent to provide legal support to Aafia Siddiqui. This is the correct response. It must be supplemented with initiating an inquiry into who in Pakistan’s Interior Division or intelligence agencies ordered that Aafia be “picked up,” in breach of her fundamental constitutional rights to liberty and freedom from arbitrary arrest, and to be handed over to the Americans without the mandated due process under our laws.

Further, as we go around denouncing the US as evil incarnate, let us also remember that the same folks who arrested Aafia Siddiqui also detained Masood Janjua around the same time and our justice system is yet to find a clue to his whereabouts.Instead of following the Jamaat-e-Islami’s lead and mimicking the monkey who lit up his own tail in fury, it is preferable to focus on the available legal remedies within the US justice system. Notwithstanding the ideal that moralists would wish to see implemented, in our imperfect world, the extent to which an individual’s fundamental human rights stand respected still depends on the incidence of his/her birth, as well as national identity. And in that regard, protesting the West’s duplicity will not help. Reforming ourselves to build a nation whose rights no one dare impinge will be a more constructive approach.

As Iqbal warned:

Taqdeer ke qazi ka yeh fatwa hai azal se/hai jurm-e-zaeefi ki saza marg-e-mufajaat.


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