Original Articles

Some legal aspects of Aafia Siddiqui’s case: A rebuttal to Babar Sattar – by Usman Ahmad

‘Blinkered justice’?

As a nation we suffer from what can only be described as persecution complex. The knee-jerk reaction of “they are out to get us” has been our response to countless issues ranging from the war on terror to the general treatment of Pakistan by the international community. The sentiment has been on display in the case of Dr Aafia Siddiqui too.

Our government and our society failed to realise that the best way for justice to be served and for Dr Siddiqui to be released from the US custody was to arrange for a strong defence during the court case. Rather, we focused our attention on being indignant, insulting and occasionally lighting up an effigy or two of prominent American personalities. (Of course, thrown in there was some pretty strong anti-Semitic rhetoric to keep things spiced up.)

Babar Sattar too in his article “Blinkered Justice” (Feb 6), did not explore the facts and circumstances leading up to the conviction of Dr Siddiqui by a Manhattan jury. Mr Sattar appears convinced that if the accused were a designer-scarf wearing Caucasian lady, she would probably have been acquitted. While I’ll concede that the evidence presented by the prosecution appears flimsy at best, Mr Sattar’s method of lashing out against the US legal system is far from satisfactory.

Mr Sattar’s contention that the high conviction rate of African Americans is a result of racial bias is only very marginally true. (Referring to them as “blacks,” as he does, is akin to describing all people of South Asian descent as “browns,” something I’m sure Mr Sattar would not be pleased with.) These convictions are overwhelmingly based on drug-related crimes, and not a manifestation of race relations in the USA. While it can be argued sthat the drug laws in the US are absurd and put the victims of the drug issues behind bars, that is a debate for another time. The point at hand is that it is inappropriate to term the vast majority of jurors in the US as racially biased simply on the basis of this statistics.

Juries in the USA serve a great purpose by allowing an accused to defend himself in front of ordinary, everyday citizens; people who take out time from their jobs and lives and fulfil this social duty of ensuring that a single person in a robe does not get to decide the fate of defendants. Callously describing them as a mob of racially motivated people out to put anyone who isn’t fair-skinned behind bars lacks any semblance of intellectual rigour and, quite frankly, is insulting to anyone who has ever served on a jury and sat through countless hours of legal arguments. In fact, given the diverse population of New York City, it is highly unlikely that the jury in Dr Siddiqui’s case was even entirely Caucasian, something Mr Sattar seems to implicitly assume.

Finally, Mr Sattar makes the mistake of providing only half the story in terms of the DNA evidence issue that he raises. At the outset, I would point out that 30 per cent of the convictions overturned as a result of the efforts of the Innocence Programme he mentions were of white defendants, a fairly substantial number in a total of some 250 overturned convictions. Moreover, the entire purpose of the Innocence Programme has never been to identify racially charged convictions and pursue their reversal. Rather, it insists on the use of modern forensic technology not available at the time of the respective trials, thus making it entirely irrelevant to the trial of Dr Siddiqui. For purposes of illustration, a parallel to Dr Siddiqui’s case would be if somehow it could be demonstrated on appeal that the weapon she allegedly used to assault the US soldiers was not even a weapon to begin with but a random piece of plastic.

I appreciate Mr Sattar’s concern for the seemingly bizarre conviction of a fellow citizen. But his impulsive reaction of criticising the general American population and the US legal system is altogether counterproductive and will not serve to help Dr Siddiqui in her quest for an acquittal. The more important question, as far as I am concerned, is why the Pakistani government waited until it was too late to make all these pledges of support.

It was not until November last year, less than eight weeks before the start of the trial, that monetary assistance was pledged by the prime minister – a timeframe any lawyer would tell you is way too short for any tangible good to come out of it. Moreover, why were witnesses for the defence not flown from Pakistan to New York to give testimony at the trial? Even if visa issues were to restrict such travel, testimony could surely have been presented via any of the plethora of electronic means allowed by the US courts.

Why was the lead defence counsel a lady specialising in family law with only marginal criminal law experience? International treaties would have required the US to allow all sorts of consular assistance from Pakistan to Dr Siddiqui. Why wasn’t an appropriate legal team assembled to provide assistance to her – both in terms of assisting the government in Islamabad to decide the best course of action and also of providing better defence at the actual trial?

The US is teeming with competent (and appropriately specialised) lawyers of Pakistani origin who could have been engaged to provide legal assistance, or at the very least, ensure that Dr Siddiqui did not feel that her defence team was a part of the conspiracy to put her behind bars. Why was no one there to guide Dr Siddiqui through her trial and advise her not to make the kind of self-destructive statements that she did in open court?

Given the many levels of appeal in the US legal system, there are still plenty of opportunities for justice to be served in this unpleasant case, and I hope that Mr Sattar uses his fine legal education to provide proactive assistance rather than blaming the system, once the matter has been fully settled to the detriment of Dr Siddiqui.

The writer is an attorney currently practising law in New York.

Email: uahmad@umich.edu

Source: The News, 17 Feb

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Abdul Nishapuri


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  • Dr Aafia did or didn’t?

    The Pakistan report card

    Thursday, March 04, 2010
    Fasi Zaka

    I admit that there has been one topic I have been reluctant to write about for a year now, despite occasional prodding from the readers. When I first heard about Dr Aafia Siddiqui’s case, I immediately held an uninformed opinion; I thought she was guilty. It didn’t matter to me that she was a woman, and I felt if she had been Al Qaeda then she deserved punishment.

    This gut reaction probably came from the circumstantial evidence surrounding the case, of which there is a considerable amount. So, instead of writing something that was obviously tainted with bias, I chose not to write anything. Only recently, when I was asked to an interview with an American radio station did I realise that I needed to know more than what I superficially did. While researching the case, I came across a website dedicated to Dr Aafia, and it bemoaned the lack of interest from the liberal media, of which I concede I could fall into, and in many ways that criticism is valid.

    My unequivocal position has changed by looking at the facts and disputed facts of the case. I feel significant doubt regarding my earlier conclusion. That is not to say that I feel she is innocent, but I don’t think it can be said with certainty either that she is guilty.

    But, perhaps most interesting is to understand why certain people have positions regarding her innocence or guilt (myself included). My initial beliefs are probably rooted in reactionary thinking against certain groups and how they champion her cause.

    For those individuals, it does not matter whether she may or not be guilty. They feel affronted that a Pakistani sister, mother, daughter and wife has been given up on. Being an accomplice to terrorism as a part of Al Qaeda doesn’t matter to them, even if it turns out to be true. All that matters is that she is being tried by the US and her case has been subsumed by nationalism. Her missing children have also struck a raw nerve, leading many to cite it as an example of the US’ barbarity behind its civil cloak. However, few are willing to admit that she willfully neglected her duties towards her children by endangering them.

    In general, this utter unwillingness to address possible guilt turns me off. They want to influence the legal system but do not believe in it, simply because a fair and negative verdict will never be accepted by them. But frankly, the judgment against Dr Aaafia by the US court doesn’t appear to be fair. And this is why despite these caveats of intention those who doubt her guilt have a strong case, too. The story of how she was nabbed in Afghanistan appears unlikely. From being behind a curtain, stealing a weapon placed at the foot of a soldier and then being shot in retaliation when they knew she was there is a weird accumulation of circumstances. Then, of course, getting tried and being found guilty for it rather than the allegations of involvement in terrorism is another. On top of it a Pakistani citizen who could possibly have been in illegal detention in Afghanistan by the US supposedly commits a crime in Afghanistan and is then tried in the US for an incident which is not what she was initially wanted for?

    There is also the possibility that she is not mentally fit to understand what is going on around her. Her recent photos speak of tragedy and hardship. Plus, she happens to be described as some sort of brilliant scientist at the disposal of Al Qaeda by the western media, whereas her research for her PhD was anything but something that could be used for terrorism (she contributed to the theory that man learns by imitation).

    With all this in mind, it’s good that the government of Pakistan spent money on her defence. She is someone who very likely could have been handed over to the Americans in violation of all our laws if she was truly in captivity all this time. Her case is worth pursuing because it is not an open-and-shut one that the courts in the US have decided against her.

    Despite all of this, there are still some troubling issues. She isn’t someone randomly picked up in a massive miscarriage of justice; she was on the radar of the US as early as 2002. In addition, even a UN Commission alleges that she was a member of Al Qaeda. Apparently it was Khalid Sheikh Mohammad who gave up her name in 2003 when he was arrested – that of course cannot be verified thanks to the illegal detention center that Guantanamo is.

    The court record says that her lawyer confirmed her second marriage to a man already in custody who is supposedly an Al Qaeda operative. Her previous husband alleges that her children are not missing but actually in the custody of her sister and that she has not been detained for five years by the US before the shooting incident. Most troubling is an account of her uncle who claims to have met her in the period when her supporters allege she was in the US custody. The journalist Declan Walsh wrote a very prescient piece which noted that the key to understanding the truth would be to know where Dr Aafia was for the five “missing years” before her arrest; was she illegally and inhumanly held by the US or was she working for Al Qaeda? One person who could answer this is the son of Dr Aafia, but his testimony or presence has not been forwarded by Dr Aafia’s family in whose custody he is currently.

    For either side, those who believe in her guilt and those who don’t, to say something conclusively is impossible at this stage despite their claims. Guilt needs to be established beyond reasonable doubt, but this case sets a long shadow with many unanswered questions. Her defence therefore is imperative to prevent a miscarriage of justice which has probably happened with the guilty verdict she has been handed down. Her sentencing is still left, and the inevitable appeal. But the US won’t be pressurised by a government like ours which it can easily ignore. For those campaigning for a fair shake to Dr Aafia the key will be involving the US media to give more scrutiny to a case it has largely ignored given its obsessive attention to the recession and domestic issues.

    The writer is a Rhodes scholar and former academic. Email: fasizaka@yahoo.com