On both sides of the debate over detention and what to do with all the prisoners who have been denied rights, abused, tortured, rendered, or kept incommunicado, both during and after the Bush administration’s foray into lawless incarceration, there is an implicit assumption that a terrorist can get a fair trial if brought to a ‘regularly constituted court’, to use the phrase from the Geneva Conventions.

Those in favor of continued detention without charge worry that such a person will get too many rights, rights they believe should be restricted to those who ‘deserve’ them. Those opposed to the current state of indefinite detention and those who have vigilantly opposed torture and promoted human rights often point to the near flawless record of convictions of terrorists in U.S. courts as proof that the country will be safe if real trials are held. Glenn Greenwald, for instance, rightfully calls the ability to convict terrorists in court "breathtakingly broad":

Second, as a result of breathtakingly broad criminal laws in the U.S. defining "material support for terrorism," there are few things easier than obtaining a criminal conviction in federal court against people accused of being Terrorists. Even if the only thing someone has done is joined a group decreed to be a Terrorist organization, without even engaging in (or even planning) any violent acts, federal prosecutors are well-armed to convict them.

So can a terrorist get a fair trial? Let’s make it specific: What would sane behavior look like for Aafia Siddiqui, whose competency hearing was held on July 6th, during which she interrupted the hearing with outbursts like, "I’m not psychotic — I can assure you I am not", "I didn’t ask to come here", and reportedly stated that the real reason she wished to be declared competent was so she could fire her counsel. Judge Berman handed down his ruling finding her competent on July 29th, the New York Times wrote it up here, and you can read the decision, together with Ms. Siddiqui’s letter which was disseminated to bolster the contention of those in the courtroom that she was "off" at the hearing, and to prove she was anti-Semitic, amalgamated by the Times, here.

At first glance, the judge’s decision seems straight-forward. He outlines the previous filings and court appearances in the case, check. He then summarizes the testimony of five psychiatrists who had observed her, check. He kind of takes a poll over these psychiatrists, factoring in his own courtroom judgments, check…er, or maybe a little off, how do you poll 3 prosecution psychiatrists and 2 defense psychiatrists and come to a fair outcome? He states the applicable law and the burden of proof, and the rights of the defendant. Apparently, under the law he states, she had the right to testify for herself during the hearing, as opposed to shouting out her rebuttals and being told to be quiet. There is no record that she did so testify or was asked if she wanted to.

But it kind of goes deeper than that. In August 2008, as part of a signed deposition, her lawyer at the time, Elizabeth Fink, stated that, "Based on multiple factors and investigation, I have a good faith basis to believe that [Dr. Siddiqui] is a victim of torture,…" and had asked that she be transferred to "the Forensic Unit at Elmhurst Hospital administered by the New York City Department of Corrections…", which Judge Berman notes in his ruling (p. 5, p.8 of the NYT amalgamated pdf), "is not a part of the BOP".Which presumably is why they sent her to Carswell, TX, to a Federal criminal psychiatric unit, which is where she got the notion that she had but this one hearing to speak if she were declared unfit, "I’ve seen what the drugs do and people can’t speak."

You see, there is another important distinction between the facility at Elmhurst and that at Carswell. Elmhurst has forensic psychiatrists who specialize in torture victims. The five hundred pound gorilla in Aafia Siddiqui’s courtroom is whether or not the U.S. government or agents for another power on behest of the U.S. government, held and tortured her for 5 years, and disposed with or are still holding one or two of her children. She says so. Her family says so. Her son recounts being shackled and moved from place to place. Moazzam Begg and Binyam Mohamed believe they saw her at Bagram. And something has to account for psychological symptoms which were variously described as, depressive psychosis, paranoid schizophrenia, PTSD, and tangentiality, none of which are commonly contracted without a major incident when someone is in their thirties. Even if that "mental disease" as it was put when she went to Carswell, is not sufficient grounds for her to be mentally unfit to stand trial.

The prosecution psychiatrists found her to be malingering: a psychological term for exhibiting behavior purposely to achieve an end, which they assumed was to be declared unfit and avoid prosecution "for her crimes". All the psychiatrists, perhaps at Judge Berman’s request, discussed in their testimony how to distinguish where jihadi extremism leaves off and insanity begins. The trial has not yet begun, there have been no witnesses supposedly called (except to determine her mental state) and yet there is a determination of "jihadi extremism" assumed by all? The verdict first, trial after!

Although she is not charged with any act of terrorism (what she is charged with is very similar to charging her with being an unlawful combatant in many ways, cf. Major Frakt on Mohamed Jawad), the prosecution has entered court papers tying the case to that of Uzair Paracha, who was convicted in the same court of participating in a plot to blow up gas stations. The only witness accusing the mastermind of the plot, Majid Khan, recanted. Mr. Khan is unfit for trial (three suicide attempts after being held at a black site and then Guantanamo Bay). The plot was divulged by someone named Khalid Sheikh Mohammad in custody, he of the 183 waterboarding sessions. Again, torture comes into U.S. courts. Is it legal to assert intelligence against a plotter taken in torture?Uzair Paracha’s other accomplice, other than, that is, Majid Khan, was supposed to be Aafia Siddiqui, the "al Qaeda Matahari". Who also is supposed to have negotiated $30 million dollar blood diamond deals in Sierra Leone and taken the money back to al Qaeda in Afghanistan while putting her thesis material together for a journal article and taking care of her own and her neighbors kids in Roxbury, Mass. And a lot of other things.

Put simply, in the courtroom during her competency hearing, the prosecution wanted her put away for life in ADO Florence,CO, the defense wanted her put away for life in Carswell, TX, the Judge is finding her anti-Semitic, and the court reporters want her convicted a half a mile from ground zero. No possibility of an Istanbul Protocol examination, no investigation into her disappearance, no hunt for her children (the court in Pakistan which had ordered one was itself ordered out of existence yesterday, because it had been constituted during the Musharraf emergency, it’s up to the Senate there to re-instate any court orders over the next 120 days).

So about those outbursts which the judge treated as insanity while they were happening, and as malingering afterward: Exactly what would sane behavior in such circumstances have been?There is always more. No consular access in Afghanistan, no judicial hearing for extradition, interrogation while she was hospitalized at Craig Joint Theater Hospital in Bagram with wounds the U.S. military considered non-life threatening but required removal of part of her intestines and possibly one kidney and caused her to lose consciousness (note the FBI notes at page 41 of the NYT amalgamation). That’s an interesting phenomenon, that interrogation.

Rumors are that she was on a restraint bed with 24/7 lights during that two weeks at Craig. She supposedly opened up to the same people who had just shot her a few days before? And why wasn’t she read her Miranda Rights then until she arrived in court in Manhattan, on August 5, 2008 before Judge Ellis (S.D.N.Y., p.4 of the NYT amalgamation), the judge who remarked at the time that her extradition from Afghanistan had been speedier than he could get a prison from across town in Brooklyn.

At the end of the day, unless and until the conditions of her previous treatment are brought into the court, until information explicitly derived from torture by waterboarding is banned from the courtroom, until a defendant can testify at her own competency hearing, until she is given proper tests for a credible allegation of torture, until subpoenas can be assured for the Ghazni police and the governor of Ghazni, who say she never fired on anyone and the U.S. officers panicked and shot, until the U.S. Attorney who wrote extraordinary rendition memoes for the State Department that rival those of John Yoo and Jack Goldsmith (see this, for example) is forbidden to introduce damning evidence to the judge before the trial starts, Aafia Siddiqui goes on trial not as a defendant who is innocent until proven guilty, but as a terrorist, who is getting far more justice than she deserves, isn’t she? Besides, she believes in Zionist plots. The days of the ACLU going to bat for George Lincoln Rockwell are long forgotten. And Ms. Siddiqui probably wouldn’t accept them anyway, she also believes in Indian plots, American plots, just about any kind of plot imaginable. Just like someone who’s been kept in extreme isolation too long, hunh?

There was another woman who in fact became a fugitive from justice and the subject of a nationwide manhunt because she didn’t feel she could ever get a fair trial in America. Does anybody remember Angela Davis?