Composite image of Aafia Siddiqui created by FBI for use on a poster. (source: Wikipedia)

Last night, Victoria Brittain of the Guardian published advanced information that the International Justice Network would be publishing a major whistleblowing report on Aafia Siddiqui at “6am EDT” this morning.  It is up on the International Justice Network site now.  The report itself, and Appendix A, which is the transcript of the audio tape in English, are accessible, I wasn’t able to get to the audio itself, perhaps all of Pakistan is trying to listen to it.  For those not familiar with IJN, Tina Foster is their Executive Director, she is the family attorney for the Siddiqui family (not one of the lawyers who represented Aafia Siddiqui in court).  She and other lawyers from IJN, including Barbara Olshansky, have represented Bagram inmates before the courts trying to get habeas corpus rights in the al Maqaleh et al case, they also do work in human rights cases in other places, such as Namibia and in the Philippines.

The report has both details from the tape and details from her children and family and of her hospitalization in Bagram that are revealing and sickening, mostly with respect to the FBI.  The person interviewed on the tape is one of the agents who arrested Aafia Siddiqui in March 2003.  He confirms the presence of a female American FBI agent who slapped Aafia Siddiqui during the arrest, confirms her dress and confirms that she was handed over to the Pakistani ISI.  He says that she was held for 2 years by Pakistani ISI and questioned by the FBI, he believes.  He confirms that the numerous reports of her surfacing and of her marriage to Ammar al Baluchi were planted in the media, he confirms that the children were held separately, and that she was dropped off in Ghazni with her son prior to her 2008 arrest and did not really know it was her son, and had been given the bags with which she was arrested.

The report then adds detail to some other things.  It confirms Yvonne Ridley’s contention that Ahmed Siddiqui was told by a U.S. Consular Official in Afghanistan prior to being sent to his aunt’s custody in Pakistan in 2008 that his name was Ahmed Siddiqui and “your brother is dead”.  It confirms that Maryam Siddiqui spoke only English with an American accent when she was found wandering in Karachi near her grandmother’s place in 2010, and the tape confirms she was held in a prison for children run by Americans where they spoke only English.  . . . Read the rest of this entry →

Judge Richard Berman rewrote verdicts, applied enhancements and came up with 86 years, and after insisting that the defendant was sane, remanded her to Carswell Federal Prison for the Criminally Insane. For her part, Aafia Siddiqui told her supporters not to be angry but to forgive.

The New York Law Journal has a good article on how you can get 86 years out of an attempted murder verdict. They said Judge Berman applied all the enhancements possible. For instance, he made it a hate crime. And he apparently added years because he said she lied on the stand. Presumably that’s because she said she didn’t shoot the gun? The prosecution never proved she did, but never mind. The one that really got me was when he "ruled", on the insistence of Christopher LaVigne, that the shooting was "premeditated". That one overruled the jury, as Carolyn Weaver of Voice of America rightly pointed out, they had thrown out the verdict of premeditation last Spring.

And he ruled added an enhancement for terrorism. This was based on evidence he had previously ruled could not be shown to the jury, the contents of her handbag. In fact, much of the case was decided on what was not shown or given to the jury at all. The decision to declare her sane was explained today in detail, the factors that went into it were pieces of evidence taken during interrogation without informing the defendant of Miranda rights, without due process of any kind outside of the U.S. just prior to an illegal rendition. The rendition was never presented to the jury. The Afghan police were not allowed visas to testify in person in the trial, they were never before the jury. The Judge made the decision that terrorism was involved, based on the prosecution assertion of cyanide being found in her handbag, a fact that was carefully shielded from the jury, but which was the enhancement that increased all other sentences, the "ceiling shattering enhancement" according to the Journal.

Something is clearly wrong here. If she was going to be convicted of terrorism and sentenced for terrorism, and if testimony was going to be used for that conviction and sentencing that was taken using illegal interrogation, and if extraordinary rendition was going to be her method of arrest, then we have had two trials. One when the jury was present, during which Aafia Siddiqui was on trial for lunging for a gun and firing two shots in a struggle in which she was shot in the stomach, in which a jury heard evidence and voted on seven charges.

And around the edges of that trial, was another one, in which testimony was coerced with drugs and restraints and 24 hour lights and agents, in which there was no due process, in which lies were told to avoid the charge of shooting an "enemy combatant" who was hors de combat, in which Judge Berman and Christopher La Vigne presided over a court where the defendant had no right to be fit to stand trial, had no right to consular access before illegal refoulement, had no rights against cruel, inhuman, and degrading treatment, and is now to be held, while declaring her sane, in an institution for the insane, for — what is it Judge Berman? The duration of conflict? Is there a reason why Andy Worthington thinks you do the CIA’s work for them?

In that twilight court, Judge Berman, that takes place at your competency hearings and your sentencing hearings, where terrorism really is the charge, where the bags of cyanide and the FBI interrogation of a prisoner on morphine are admissible evidence, where your only real sentencing guidelines are the duration of a conflict you’ve been told will never end, can you really claim you are holding a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples?

Thursday Morning at 8:45, at 500 Pearl St. in Manhattan, in Room 21D, Judge Berman’s Court, Dr. Aafia Siddiqui will be sentenced. She is facing 30 years to life. People that are there might show up to pay their respects, there is no way justice will have been served.

I’m not from New York. So I don’t know how much of an effort it would be to travel down to the U.S. District Court in Foley Square on Thursday Morning during rush hour to show respect for Aafia Siddiqui as she gets sentenced. I’ve heard no talk of appeals, I do know that after some rather vicious charges in Pakistan that the government had acted in bad faith and never actually tried to get her back, Rehman Malik, the Interior Minister did send a letter to Eric Holder this past week asking that she be repatriated immediately to Pakistan under the Convention on Extradition of Prisoners on humanitarian grounds.

Tina Foster, of the International Justice Network, who represents her family, has maintained since her trial in February that only by getting her back to Pakistan would she have any chance at real justice, there won’t be any such chance in the United States. My belief is that her lawyers needed consent from her for an appeal and that she may have not given them that. The fact that Judge Berman ruled her competent to aid in her own defense has crippled that effort, but more importantly, some have also charged, they are in the employ of the government of Pakistan, and it may not have wanted to fund such an appeal. The latter we may or may not ever know, unless one of them comes forward, perhaps Charles Swift will tell us.

So my deepest feeling is that this may be the end unless she is repatriated, and if she goes off to maximum security prison, the U.S. government will have successfully have squelched any further means of knowing about the abduction and torture of this woman and her three children in this country, unless her two children find a way to use their American citizenship to level charges here someday.

Her son’s testimony to the Pakistani special investigator was leaked to Yvonne Ridley and she read it on cageprisoners. He says that he was abducted by people from another car when they were on their way to Islamabad (in 2003) and he was rendered unconscious by a cloth, he saw his brother in blood. He also says that an American consular official also told him that he was and American citizen, that his mother was Aafia Siddiqui, and that his brother was dead (presumably in 2008 when he was returned to his aunt).

This information matches what Aafia Siddiqui told her lawyers according to Elaine Sharpe (one of her lawyers), and still, on the request of the prosecution lawyers, her lawyers were not allowed to introduce their belief that Ms. Siddiqui’s behavior in the courtroom was in part the product of psychological trauma suffered during 2003-2008, on grounds that it had been discredited during her competency hearings.

But during her competency hearings, the "discrediting" was based on written notes of FBI interrogators who interrogated Ms. Siddiqui under duress at Bagram without Mirandizing her, in 4 point restraints, and refused to tell her information about her children. She displayed hypnagogic delusions or hallucinations and other symptoms consistent with psychological reactions to solitary confinement that worsened from July 18 to October 2008 when she was informed that her sister had been given custody of her son, at which time the symptoms ameliorated.

In other words, the basis for disqualifying the information that a corroborating deposition was in the hands of the Pakistani investigators that the defense explanation for her behavior had merit, and also that a credible allegation of torture had been made in a U.S. courtroom, was being dismissed due to interrogation notes taken in conditions that amounted to cruel treatment.

I’m sorry, but Judge Berman, who also wrote in his competency decision that while it is the decision of the defense attorney many times whether or not a defendant will take the stand at a trial, all defendants must have the right to take the stand at a competency hearing if they wish, and then denied Ms. Siddiqui the opportunity to take the stand at her competency hearing, ruined any semblance of justice in dealing with the issue of torture at this trial. He denied defense requests to have her transferred to Bellevue for her psych exam, where they would have been equipped to do an Istanbul Protocol examination, and instead sent her to Carswell, he called in "experts" who had written extensively on using psychological techniques to combat the spread of jihadi terrorism in prisons as his competency psychiatrists to repudiate the initial findings of incompetency from Carswell, when the government didn’t get the competency result they wanted.

From start to finish there was going to be one and only one verdict, and that was the one that would put Aafia Siddiqui where she could not talk about what was done to her, to her children, and to whatever happened to American beliefs in the Constitution, the Geneva Conventions, and the basic decency of human rights.

If you are in Manhattan on Thursday Morning, and can do so, please show your respects. I don’t know what else to call it, since calling for justice seems beyond what seems possible in Foley Square any more for this woman. What a shame. This country used to stand for something.

"Today, a jury has brought Aafia Siddiqui to justice in a court of law for trying to murder American military and law enforcement officers, as well as their Afghan colleagues," said U.S. Attorney Preet Bharara.

That would be fine, upstanding, fought against the politicization of the U.S.Attorneys by Karl Rove, Barack Obama appointee, Preet Bharara, USA for the Southern District of New York. Yesterday, the jury convicted Aafia Siddiqui on all 7 counts after deliberating from Monday afternoon to Wednesday afternoon. But justice? I don’t think so. One irony is that the "justice" they did dispense serves as a can opener revealing the anatomy of the strategy for convictions based on fear and hatred, so foolproof you don’t even need a guy who can indict a ham sandwich.

Well, now. Can a terrorist get a fair trial?

What they did was to convict on the attempted murder charge, but decline to call it premeditated. And that makes all the difference. I have read over 143 articles and blogs on this case since Monday, I save anything that isn’t an obvious duplicate, and I saved 100 such articles or blogs since 1pm yesterday. I worried about what to write, but if you need a blow by blow, there’s Petra Bartosiewicz, whose articles are conveniently listed and linked at cageprisoners. Day 11 isn’t missing, there was nothing happening in court (except that the jurors wanted to look at a lot of evidence). Highly recommended is also Pramilla Srivastava and Ibrahim Sajid Malick at the latter’s site. There won’t be much analysis of the evidence, the judge sealed the supposed handwritten documents, the government classified the transcripts of the FBI interrogation, and what’s left is the strange conflicting testimony of the government witnesses and the baldly conclusive statements by the forensic experts that there was no evidence an M-4 was ever fired in the room in question, which presumably Aafia Siddiqui with her lightning spitting fingers, chadoor of the black arts, and deep devil worship al Qaeda Islam was capable of warping the forensic scientists’ minds into blurting out, as part of what AUSA Christopher La Vigne described as "lies, lies, lies." Instead, I’d like to focus on the anatomy of this prosecution, just so everybody knows that the dedicated and astute lawyers and judges of the Southern District of New York are doing their job and we should trust the courts to handle terrrrarrrisssts. There’s something extremely terrifying with seeing the civil libertarians, so intent on putting the trials in courts that they’ve lost sight of the big picture, all but promising convictions to a terrified public, who will, in all probability, form the juries for those trials.

Let’s begin with dismissing the notion that the people picked up in most cases were actually hardened terrorists at all, and not people who were to be used for intelligence purposes: repositories of information that were to be cracked open and spun up like disk drives, not hardened "worst of the worst". The "worst of the worst" meme surfaced when people asked why they couldn’t be released or charged or whatever, and not before. The logic of that, and of the idea that what can then be done, creatively, with them, is encapsulated in the court arguments of DoJ counterterrorism/surveillance guy Scott Macintosh, at the Brandon Mayfield 9th Circuit Appeals court hearing, first pointed out on Glenn Greenwald’s blog in comments by pow wow. Listen to the government arguments in that case at the link pow wow provided, you will hear it spelled out in all its chillingly-ness: The government has the authority, he argues, to imprison people solely for their intelligence value, and to try "terrorists" on any charge they like so long as they go to maximum security for the rest of their lives. In fact, it gets increasingly obvious, as the courts affirm the right of the government to commit CIDT with impunity offshore, that the terrorist label, and the ability of the government to not only obtain an automatic conviction for it in federal court, but the acquiescence of the civil liberties community and that community’s use of that conviction as proof that the system works, form an impervious barrier that can be used to protect the interests of the State against the horror and public outcry that would result if it’s treatment of those so labeled were ever to surface to the light of day. But Preet Bharara has said she’s a terrorist, and Preet Bharara is an honorable man. So are they all, all honorable men.

The Aafia Siddiqui case was engineered from the start to conform to the Macintosh, or should we say La Vigne, agenda. No mention in court of the illegal rendering that brought her there. Charges other than terrorism.

Why? Because charges of terrorism would have made the past relevant. The past, as is increasingly coming to light, includes two black cars that overtook Aafia Siddiqui’s taxi on the way to the airport, drugged her, drugged her son, put the children in one car and Ms. Siddiqui in the other, and, apparently killed the baby, with photos of little Suleman lying in a pool of his own blood subsequently used as part of the black site ritual against his mother. The elder son says he woke up in Juvenile Jail in Kabul, where he learned the Dari that he would not have learned in Karachi. It is a violation of multiple international human rights and humanitarian laws to imprison a child less than 12 years old this way, and illegal under the Geneva Conventions (I didn’t first invoke the battlefield, the prosecution did) to separate a child of less than 7 years old, much less 3 years old, from her mother. To this day, no one knows where Maryam is, who would now be 11, seven years after her disappearance. Maryam is an American citizen, having been born in Boston, in the halcyon days before "9/11 changed everything".

A past like that simply cannot show up in any public forum, so there was never any question of Christopher La Vigne proferring terrorism charges against the "most wanted woman in the world", the "Mata Hari of al Qaeda" as she was characterized when Attorney General Ashcroft and FBI Director Mueller announced she was a wanted quantity in 2002 and 2004. No prosecutor would survive the attempt to prosecute someone who’s baby had been killed on her way to a black site. So without terrorism in the charges, that past can’t be accessed, a principle that Judge Berman held the defendant and the defense to assiduously during the trial, the hearings, and everything else. But how to re-introduce terrorism back into the courtroom, with the gag on torture well in place, because it’s the only way to get a conviction, given a presentation of evidence correctly characterized by International Justice Network’s Tina Foster as ‘a flea circus’?

The answer is premeditation. It’s breathtakingly simple, and beautifully perfect; in a diabolical, miscarriage of everything this country stands for kinda way. The events the prosecution claims happened in that room in the Ghazni police station, in contradiction of all physical evidence to the contrary, were that a Warrant Officer put his gun on the ground, and that Aafia Siddiqui saw her opportunity and picked up the gun and fired (blanks with no shell casings apparently, but nevermind).

The jury said this was an unpremeditated act, and that’s what it would appear to be to all but the SDNY USA’s office’s trained eye. But if her reason for picking up the weapon (which I don’t believe she did) were not to escape, but to "kill Americans", then the prosecution can reintroduce its own very selective terrorism case, on grounds that it "speaks to her motive" and her "mindset". In short, just by writing premeditation into the charges, Christopher La Vigne was able to introduce terrorism into the trial, but only for the prosecution, thus avoiding the messy, probably bad press, courtroom discussions of dead babies, missing female children, war crimes violations, incommunicado detention, enforced disappearance, illegal refoulement, and all the rest of the stuff that would embarrass the United States and ruin the jury’s inate fears. The act, if it even occurred, had, by all the prosecution witnesses accounts, not a shred of premeditation, so the assertion was at once disingenuous and manipulative. And pending appeal, Aafia Siddiqui, who is increasingly looking like a victim in the investigations in Pakistan, is headed to a minimum of 50 years in the black sites we call legal supermax prisons here in the U.S. and the UN Committee Against Torture calls violations. So are they all, all honorable men.

But it proves the justice system works, and that’s all that matters. As I love to quote (second time today),
Neal Katyal: We won!
Salim Ahmed Hamdan: No, You won. I’m still in prison.
Civil libertarians are fond of saying that a nation’s record on civil and human rights is determined by how it treats the worst of the worst. In this case, it’s determined by how it treats the cases those same activists didn’t give a damn about, except as a statistic to prove that terrorists can be convicted 100% of the time by a foolproof judiciary.

It’s been a long week in the "terrorism" trial in Manhattan. A week which ended with first Mayor Bloomberg then President Obama backing away from trying any more terrorists there. Which is what the commentators wanted all along, Michelle Malkin and her supporters, that is. Aafia Siddiqui, about whom very few people cared for years, has suddenly become the cause célèbre for those who want suspects waterboarded, new courts formed, military tribunals held, and prisoners kept indefinitely for the duration of a conflict they will never end. Never mind that nobody knows for sure how indefinitely she’s been held already. Or that her accusers are looking more and more like the guilty parties. She may just be convicted on fear or is it hate?

As always, Petra Bartosiewicz is doing an excellent job of blogging the trial. Her daily blogs are at CagePrisoners.

I wrote already about Monday, when the nameless but very sympathy evoking injured Chief Warrant Officer testified. And the medic testified and was questioned about a statement given to the FBI five days after the incident in which she reported being told that the Captain would get "fried" if anyone found out it was his gun, but the Chief Warrant Officer wouldn’t. Ms. Siddiqui also, in one of her increasingly perceptive "outbursts" claimed she was shot by somebody else. Hustle her out again.

Read the rest of this entry →

The trial of Aafia Siddiqui began on Tuesday last week at the federal court of the Southern District of New York at 500 Pearl Street in Manhattan. Surprisingly, the turnout of spectators, protesters, and journalists was large enough that two other courtrooms needed to be opened up with closed-circuit TV feed. I was at a conference last week, so I am writing this in arrears, but Petra Bartosiewicz, the freelance reporter who produced a great piece on Ms. Siddiqui late last year, has done two days of blog style reporting and a good piece in Time Magazine. They are well worth the read.

Opening remarks by the prosecution centered on the idea that evidence cannot be perfect in the middle of a war zone, and that Aafia Siddiqui is a dangerous person found with vials and cosmetics bottles and hand written notes and jump drives and whatever (by the side of a road in Ghazni, at the edge of, or not really in, the "war zone", in a burka, writing things on a tablet, with her son by her side), and yelled "by the blood of [indistinct] on your heads and hands" and picked up an M-4 rifle and tried to kill Americans, which apparently is against the law if they’re soldiers in a war zone. [Private guess: if she ever said anything at all like that to them, in any context, even bleeding and lying on the ground, never having grabbed anything or shot at anyone, then the indistinct word was 'Suleman'.]

Opening remarks by the defense, delivered by Charles Swift, were to the effect that they weren’t claiming she did it in self-defense, or that she did it without knowing what she was doing, or any other affirmative defense, they were claiming she never picked up the rifle, never tried to fire it, and the only gun leveled and fired that day was the 9mm pistol of the warrant officer who shot her with it, and that since there was absolutely no material evidence to the contrary, she is innocent of the charges.

Opening remarks by Aafia Siddiqui were that she was not there voluntarily and had ‘fired her defense’ many times already.

The prosecution started with Captain Snyder, the person whose head the gun was supposedly pointed at. He also, at prosecution request, read from the ‘handwritten notes’ (the electronic media on the jump drive has been banned from the trial since the prosecution cannot vouch for its whereabouts for several days and since the trial is not about terrorism, supposedly). Aafia Siddiqui objected that she never intended to bomb anything, and said, to the jury, "It’s not true. I was held in a secret prison, my children were tortured, I was told to copy a magazine…" according to one version (reporters seem to have had a hard time agreeing with each other about her remarks). She was taken out of the court room, but returned the next day.

The problems with the prosecution testimony were ably pursued by the defense on cross-examination all week (the prosecution has now presented all its witnesses). Captain Snyder says she was kneeling and had trouble figuring out the gun, Ahmad Gul, the interpreter who supposedly wrestled with her for the gun says she was standing and he pushed her against the wall. There were no fingerprints on the weapon, there were no bullets or casings of anything but a 9mm pistol in the room, the examination of much of the forensic evidence was conducted in part by the same team who were involved in the incident, the attempted murder weapon, the M-4 was apparently dismantled and some of the parts likely to produce fingerprints given to other soldiers who were apparently in dire need of spare M-4 parts, it took multiple hours before she was in surgery, she was flown to Bagram immediately after the surgery which was at 1am (the incident was in the afternoon), it took 20 days for the evidence to follow, in someone’s backpack, Linda Moreno established that the interpreter has been given all sorts of favors by immigration and is in email correspondence with the person who shot Ms. Siddiqui, and there’s no evidence the M-4 was fired that day at all, according to the FBI forensics specialist who examined the scene.

But there are other elements to the case that favor the prosecution. On Wednesday, the court security set up a second check point and metal detector right outside the courtroom itself (there is already a metal detector and security check at the entrance to the building) and began searching all the spectators as they came in, in full view of the jurors, and asking for their IDs and copying the information off them onto a list. Charles Swift complained to Judge Berman on Thursday that "The suggestion that the public gallery may be a threat is highly prejudicial". He complained again on Friday, and Judge Berman said he’d ‘look into it with the security people’, to which Mr. Swift retorted that the security people say it was ordered by the judge. Personally? I don’t have much confidence that it will be stopped, the judge has been ‘looking into’ the strip searches Ms. Siddiqui must endure to come to court or meet with attorneys for about a year and a half and they haven’t stopped, he apparently looks into things for a very, very long time.

This week, the defense will present its case and call its witnesses.

I do want to note a couple of things: The constant outbursts from Aafia Siddiqui complaining that she isn’t being allowed to speak may seem to those just tuning in for the trial to be very out of line, as the defense hasn’t started it’s case yet and so forth. You have to look at the history of the case. Judge Berman explicitly wrote into his opinion of July 29, 2009 on her competency to stand trial that the defendant has the right to speak in her defense at a competency hearing, but he also explicitly forbade her from doing so. So she has been waiting a long time, and has previously had the right to speak but has been denied that right. Secondly, the case is not a terrorism case on its face, it’s an attempted murder case, so the prosecution is supposed to be banned from trying to make it about her and about al Qaeda. But they were allowed to read from the handwritten notes to ‘establish the context’ for the shooting. Right.

And, for the same reason, the defense is not allowed to talk about her disappearance and possible torture, that’s why her outburst resulted in her being taken out of the courtroom. The U.S. contends that she was in Karachi in hiding the whole time and can prove it: They have statements taken from her during the two weeks after she was shot, when she was in a four-point restraint bed in Bagram, with 24/7 lights and cameras, being interrogated by the FBI. She was apprehended in Ghazni with her son, Ahmed. At the time she was interrogated (July 17 – August 3, 2008), and indeed until October 2008, she did not know what they had done with her son. She claims that her torture included showing her pictures of her younger son, Suleman, lying in a pool of blood, and she has no idea where her daughter is (the U.S., following her ex-husband Amjid Khan, claims all the children are in Karachi). Those statements, thus, taken in extreme duress, recovering from major surgery in four-point restraint while your interrogators have your children and are of those who shot you, which "prove" she was not tortured, were used in her competency proceedings to convince the psychiatrist who was in charge of examining her at Carswell, TX, that she was "malingering" — or feigning symptoms.

For any more about her disappearance and torture, the information will not come from the trial underway in Manhattan, but from the trial looming in Islamabad. There the Pakistani Senate appointed a committee, back when the Lawyer’s Movement succeeded in restoring the Supreme Court, and that court invalidated all judgments made by the Islamabad High Court during the period since the suspension of the Constitution in November 2007, to review all of that court’s decisions and decide which to reinstate, which to retry, and which to dismiss. They are also tasked with investigating the Musharraf administration’s abrogations of justice and handing down charges to be prosecuted.

It is very likely that they will shortly recommend that Pervez Musharraf, and former Inspector General Sindh Kamal Shah be put on trial for the kidnapping and illegal rendering of Aafia Siddiqui and her three children to the Americans for torture. They have appointed an Special Police Investigating Officer, Shahid Qureshi following the filing of charges with the Gulshan Iqbal police (the station with jurisdiction where she was allegedly kidnapped), who is late with his report and has been ordered by the court to produce it.

It is important to understand that the question of whether or not she was apprehended and tortured cannot be conclusively solved on what people can gather right now, which is probably why the U.S. can continue to assert that there was no such disappearance. Petra Bartosiewicz left the question unanswered in her piece last year, very much left the question open. But there is this one thing that I think is the most important development so far on that score:

Police record statement of Dr Aafia’s son
KARACHI: Police recorded the statement of Dr Aafia’s son on Monday, according to a report.

Muhammad Ahmed, son of Dr Aafia Siddiqui – a Pakistani scientist detained in America – told the police that he, his mother and siblings – Mariam and Yousuf – were on their way to the Karachi Airport on March 30, 2003 when plainclothesmen intercepted their taxi in Gulshan-e-Iqbal and took her into custody.

Investigations SP Niaz Khuso said Ahmed stated that he was taken in a separate vehicle and the officials had rendered him unconscious, and when he regained consciousness, he found himself in Juvenile Jail Kabul, Afghanistan.

Ahmed said the Red Cross, a human rights organisation, had contacted him in 2008 for the first time. Khuso said Ahmed could speak English and Darri languages that he had learnt in Kabul. staff report

(my bold of final sentence).

It’s one thing to have a he-said-she-said between the family, the ex, the Pakistani and American officials, the supporters, the woman herself, and even her child. It’s quite another for the U.S. to continue to assert that she was in Karachi the whole time with her children when it turns up that one of them has acquired fluency in a language spoken in Central and Western Afghanistan, not in Karachi.

She may or may not be convicted in New York, in a trial that will never be perceived as fair in her home country if only because of the strip searches are evidence to Pakistanis of her continued torture by the U.S. government. And the terror-fear machine is cranked to high heaven around the trial, with Glenn Sulmasy asserting in NRO that this is why we need a new court system for terrorists, and with people flogging Attorney General Holder for deciding to try them in our courts (he had nothing to do with the decision to try Aafia Siddiqui in New York, or the decision to illegally render her there).

But in Pakistan, it will be the trial of her captors for kidnapping her that will likely produce the truth at long last.

The trial of Aafia Siddiqui, who is charged with attempted murder of a U.S. Agent, begins on January 19th at the S.D.N.Y. courthouse at 500 Pearl St. Manhattan, New York, on the 6th floor, Judge Berman presiding.

This week has seen first a motion from the defense to forbid mention of, and presentation of, information on terrorism and alleged al Qaeda connections, on grounds that she is not charged with anything related to terrorism, and to forbid use of printed documents from Afghanistan related to the arrest, since the court will not be hearing from Afghan witnesses from Ghazni. The judge ruled that only handwritten documents allegedly found on Ms. Siddiqui will be admissible and that terrorism may not be brought up by the prosecution. He also ruled something about use of forensic evidence on fingerprints (there is a dispute over fingerprint evidence from the alleged gun) but I was not able to determine what it was he ruled, with some news outlets actually saying the exact opposite of each other.

For those who haven’t been following, or don’t know what the trial is about, Aafia Siddiqui is a PhD neuroscientist (2001, Brandeis, something related to the psychophysics of teaching methods using imitation), who disappeared in March of 2003, and reappeared in Ghazni, Afghanistan by the side of the road near the Governor’s mansion, with her son, wearing a bourka and supposedly carrying any number of scary things in a handbag.

The prosecution is alleging that Ms. Siddiqui grabbed an American warrant officer’s M4 rifle and tried to kill some FBI agents and interpreters, the defense is arguing that she never grabbed the gun and never shot it, either. Both agree that whatever happened resulted in the warrant officer firing at her two shots with a pistol and hitting her twice in the torso, after which she was shipped to Bagram Craig Field Hospital for surgery, blood, and two weeks of interrogation while strapped to a four point restraint bed "recovering" with the lights on and three cameras in the room. And then she was rendered to Brooklyn.

She had multiple competency hearings and psychiatric tests, due to the fact that she is thought by some to be delusional due to what happened during the time she was disappeared. Many human rights organizations, at least one court in Pakistan, and her family believe she was tortured at a black site for several years. Two of her children are missing, one is presumed dead. Her third child is with her sister in Pakistan, the Pakistani government was forced in court by lawyers for her family to pay for her defense team.

There’s a lot more than that, but suffice it to say this is a trial with large international ramifications, which hinges critically on torture allegations (which may or may not be true but many believe are), in which the defendant does not believe justice is possible, and, given the proceedings to date, may be dead on on that one. Which explains why there has not been much coverage, no civil liberties groups in the U.S. are involved, and nobody appears to be headed down there in droves to live blog or anything. Probably, the fact that nobody can be guaranteed that taking a stand on one side or the other of this trial will help their political cause has as much to do with it as the fact that she and her family are insanely paranoid about everyone around them.

But then, your civil liberties and human rights are determined by how you treat the worst cases. I guess how you treat the most confusing ones is optional.

I don’t really have time to do a thorough piece today, I hope somebody else does, but it shouldn’t slip beneath the radar, so this is just a heads up.

The New York Times is covering a case this morning that restricts again the influence of the Boumediene decision. That would be the second time in a little over a month that a court has sharply circumscribed Boumediene, the first being Rasul v. Myers, where the influence of Boumediene and Hamdan over rights of prisoners at Guantánamo was limited to only filing habeas petitions. At this point many of these decisions have already been turned on their heads, Hamdan and Hamdi are now used principally to justify denying Article 5 hearings to prisoners as a group, which is a violation of the 3rd Geneva Convention of 1949.

In the time period when all the world was watching the Health Care Debate and the Underwear Bomber, et alia, various courts, including the Supreme Court (via turning down an appeal in Rasul v. Myers) have validated the Yoo-Bradbury philosophy with regards to CIDT, have validated the presence on U.S. soil as important vis à vis Guantanamo, and have now severely restricted habeas corpus rights by contending that they must give way to national security if the changes in the national security infrastructure would be to great were a prisoner to get those rights. Actually, the prisoner argued that he had those rights under Geneva, and that is correct 100%. But the law schools have produced an entire generation ignorant of IHL so who’s to know? JAG lawyers don’t write blogs, generally.

Anyone hoping that the Obama administration would prosecute torture can now look at these cases, and see clearly that the Eric Holder method of determining who would and would not be prosecuted, is now completely validated, and that the indefinite detention argued by President Obama is largely validated by the judgment that security supercedes habeas corpus.

So the legal battle against encroaching torture and indefinite detention is well on its way to being completely lost. Civil rights and international human rights lawyers are wonderful people, but they can’t save a society that won’t pay attention to encroaching torture permissivity. Only attitudinal change can do that.

Now back to your regularly scheduled debate on health care and PETN underwear.

This morning’s New York Times editorializes on the light treatment the Pakistani government has given to Abdul Qadeer Khan, the so-called Father of the Pakistani Atomic Bomb. They are as strident as they are disrespectful of the rule of law.

The Pakistani metallurgist deserved to be imprisoned for life. But he caught a scandalous break. As the father of Pakistan’s nuclear weapons program, he is a national hero.
[...]
So Mr. Khan was pardoned and put under house arrest. But Pakistan was unable to hold to even that mild punishment.
[...]
The United States has pressured the fragile government of President Asif Ali Zardari to maintain restraints and should continue to do so; last Wednesday, a two-member panel of the Lahore High Court reimposed the travel limits. But the rein on Mr. Khan is steadily eroding.

It is a telling piece. The New York Times, while demanding that the full force of the law be brought to bear on Dr. Khan, they applaud the U.S. government for pressuring President Asif Ali Zardari to do so. Never mind the separation of powers, never mind that the valid head of state is Yousef Gilani, not Asif Ali Zardari. That would be like some other country contacting the U.S. Office of the Vice President (Zardari’s role is supposed to be similarly vestigial) to put pressure on the Supreme Court, to reverse a ruling.

But the irony of what has happened is even richer than this. Barrister Javed Iqbal Jaffrey is in court in Pakistan sometimes multiple times per week. He petitions the court or litigates on two cases, always reported on together in the papers in Pakistan. The first case is to force the government to act on the Aafia Siddiqui case, the second to act on the A.Q. Khan case. So the rulings that the New York Times is upset about, that the New York Times believes the U.S. should continue to lean on some other branch of the government of the Pakistan to force in their favor, are always heard by the court in the same time frame as those of a woman who disappeared in 2003, whose children remain missing, who is the poster child for the 4000-5000 Pakistani disappeared, for whom the court is asked to rule forcing the Pakistani Foreign Minister to file against the United States in the International Court of Justice, fund defense for against the U.S. government’s charges, and launch a full and fair investigation into all those complicit, Pakistani and American, in her abduction, torture, the loss of her children, her shooting, and her continued incarceration and strip searches in American custody. Has the Times weighed in on the Pakistani prisoners in Guantanamo and what their sentences should be? Then why weigh in on A.Q.Khan’s sentence?

The New York Times is a big fan of prosecuting the hell out of anybody arrested as a "al Qaeda" terrorist without regard to any presumption of innocence, and has made that clear in its very limited coverage of the Aafia Siddiqui proceedings in the courtroom on Pearl Street in Manhattan. I guess they may have to wait for what they want for Abdul Qadeer Khan until they and the courts they cheerlead, are perceived as upholding the rule of law here in the United States. Until institutions in the U.S. like the Times begin to get their own house in order, their demands on the houses of others will fall on deaf ears.

I don’t write about torture as much as I used to. But I do think a little clarification of what the law is, and what the obligations of Eric Holder and Barack Obama under the Convention Against Torture are, is in order. Further, if Mr. Holder, as expressed, wants to prosecute those who went beyond the good faith interpretation of the Department of Justice memos, then with all due respect, Mr. Attorney General, Richard B. Cheney should be a target of those investigations.

From the interview with Chris Wallace:

Chris Wallace: Let me ask you, you say you’re proud of what we did. The Inspector General’s report, which was just released, from 2004, details some specific interrogations: Mock executions. Uh, one of the detainees threatened with a handgun and with an electric drill. Uh, waterboarding Khalid Shaykh Mohammad 183 times. First of all, did you know that was going on?
Dick Cheney: I knew about the, ah, waterboarding. Um, not specifically in any one particular case but as a general policy we had approved. The fact of the matter is, the Justice Department reviewed all of those allegations. Um, several years ago. They looked at this question of whether or not somebody had an electric drill in a, uh, an interrogation session. It was never used on the individual, or they brought in a weapon, never used on the individual. The judgment was made then that there wasn’t anything there that was improper, or illegal, with respect to the conduct…

Point by point:

• Mock executions, threatening with a handgun, threatening with an electric drill. Title 18, §2340: "As used in this chapter,[...]2) "severe mental pain or suffering" means prolonged mental harm caused by, or resulting from — [...](C) the threat of imminent death; or (D) the threat that another person will imminently be subject to death,…"
• Waterboarding. Ruled multiply by the U.S. government and international criminal tribunals, the European Court of Human Rights, and assessed by the Special Rapporteur on Torture, the Committee Against Torture, the International Committee of the Red Cross, and in U.S. courts, to be torture under both the meaning of the Convention Against Torture, and the meaning of common Article 3 of the Geneva Conventions.
• With respect to the OLC memoes, both by John Yoo/Jay Bybee, and by Steven Bradbury, prohibit acts which would constitute a credible threat of imminent death to the prisoner. Quoting from Yoo/Bybee 08/01/02 on Abu Zubaydah, page 11-12:
  

  We next consider whether the use of these techniques would inflict severe mental pain or suffering within the meaning of Section 2340. Section 2340 defines severe mental pain or suffering as "the prolonged mental harm caused by or resulting from" one of several predicate acts. 18 U.S.C. § 2340(2). Those predicate acts are: (1) the intentional infliction or threatened infliction of severe physical pain or suffering; (2) the administration or application, or threatened administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality; (3) the threat of imminent death; or (4) the threat that any of the preceding acts will be done to another person. See 18 U.S.C. § 2340(2)(A)–(D). As we have explained, this list of predicate acts is exclusive. See Section 2340A Memorandum at 8. No other acts can support a charge under Section 2340A based on the infliction of severe mental pain or suffering. See id. Thus, if the methods you have described do not either in and of themselves constitute one of these acts or as a course of conduct fulfill the predicate act requirement, the prohibition has not been violated. See id. Before addressing these techniques, we note that it is plain that none of these procedures involves a threat to any third party, the use of any kind of druges, or for the reasons described above, the infliction of severe physical pain. Thus, the question is whether any of these acts, separately or as a course of conduct, constitutes a threat of severe physical pain or suffering, a procedure designed to disrupt profoundly the senses, or a threat of imminent death. As we previously explained, whether an action constitutes a threat must be assessed from the standpoint of a reasonable person in the subject’s position. See id. at 9.[my bold at end]

  Clearly, the OLC, whatever else they did or didn’t do, never explicitly or implicitly, approved any technique or procedure that would be reasonably interpreted as a threat of imminent death.

• As to waterboarding, the OLC memoes explicitly state that they are based on the information provided to the OLC by the CIA concerning the safety of the technique and it’s use, the length of individual sessions, and the length of the total interrogation comprising multiple sessions. The CIA-OIG report, footnotes at pp.21-22, makes clear that this was not complete information with respect to safety, and therefore with respect to whether or not a "reasonable person" would interpret the technique as a threat of imminent death:
  

  According to the Chief, Medical Services, OMS [Office of Medical Services] was neither consulted nor involved in the initial analysis of the risk and benefits of the EITs, nor provided with the OTS report cited in the OLC opinion. In retrospect, based on the OLC extracts of the OTS report, OMS contends that the reported sophistication of the preliminary EIT review was exaggerated, at least as it relates to the waterboard, and that the power of this EIT was appreciably overstated in the report. Furthermore, OMS contends that the expertise of the SERE psychologist/interrogators on the waterboard was probably misrepresented at the time, as the SERE waterboard experience is so different from the subsequent Agency usage as to make it almost irrelevant. Consequently, according to OMS, there was no a priori reason to believe that applying the waterboard with the frequency and intensity with which it was used by the psychologist/interrogators was either efficacious or medically safe. [my bold]

  So all three cases mentioned by Chris Wallace specifically involve threat of imminent death to a reasonable person, and Dick Cheney specifically in the quote states he was aware of the waterboarding and it was a policy he (and others) approved.

• Mr. Cheney’s contention that the review concluded that there was nothing illegal or improper is incorrect. It concluded that a prosecution should not be pursued. Conflating those two is the classic Ollie North defense: They didn’t put me in jail so they must have concluded it was legal.

With respect to threats of imminent death, Steven Bradbury has additional opinions, and does conclude about waterboarding (5/10/05 memo at (pdf page) 43),

The sensation of drowning that we understand accompanies the use of the waterbaord arguably could qualify as a "threat of imminent death" within the meaning of section 2340(2)(C) and thus might constitute a predicate act for "severe mental pain or suffering" under the statute. Although the waterboard is used with safeguards that make actual harm quite unlikely, the detainee may not know about these safeguards, and even if he does learn of them, the technique is still likely to create panic in the form of an acute instinctual fear arising from the physiological sensation of drowning.

Although the redoubtable Mr. Bradbury goes on to debate whether or not the effects are prolonged enough to qualify as "prolonged harm", and concludes against it, based on some absolutely ludicrous interpretations of the dangers involved, the people experimented on, and so forth, it is quite clear that the dangers of waterboarding as a threat of imminent death were known when Mr. Cheney approved of its use, that in no way, shape or form did the OLC, even in its most reprehensible incarnations of Yoo and Bradbury express to the CIA that it was ever permitted to threaten imminent death or cause prolonged mental harm. Mr. Cheney, on the other hand, expressly took credit for the program, expressly approved of the explicit threats to Chris Wallace, and expressly approved of the waterboarding of Khalid Shaykh Mohammad, even exceeding the guidelines of the OLC. Clearly, Mr. Cheney fits the criteria expressed by Mr. Holder in all respects, on not remaining within the guidelines of the OLC in good faith.

So what should happen? A credible allegation of torture has been made, there are victims of torture that are available for testimony, and witnesses and documents. The name of at least one perpetrator, Richard B. Cheney, is known, as are his whereabouts and activities. The Convention Against Torture is clear on procedure, the steps are listed in a clear, temporally ordered, sequence there:

Article 6

1. Upon being satisfied, after an examination of information available to it, that the circumstances so warrant, any State Party in whose territory a person alleged to have committed any offence referred to in article 4 is present, shall take him into custody or take other legal measures to ensure his presence. The custody and other legal measures shall be as provided in the law of that State but may be continued only for such time as is necessary to enable any criminal or extradition proceedings to be instituted.
2. Such State shall immediately make a preliminary inquiry into the facts.
3. Any person in custody pursuant to paragraph 1 of this article shall be assisted in communicating immediately with the nearest appropriate representative of the State of which he is a national, or, if he is a stateless person, to the representative of the State where he usually resides.
4. When a State, pursuant to this article, has taken a person into custody, it shall immediately notify the States referred to in article 5, paragraph 1, of the fact that such person is in custody and of the circumstances which warrant his detention. The State which makes the preliminary inquiry contemplated in paragraph 2 of this article shall promptly report its findings to the said State and shall indicate whether it intends to exercise jurisdiction.

In other words, Mr. Cheney is to be taken into custody on the allegation of torture, at the beginning of the proceedings, before the preliminary inquiry, not at the end, and foreign governments are then to be notified as to whether or not the arresting state is going to "exercise jurisdiction", i.e. conduct investigation, prosecution, punishment, and reparations. And there is nothing in the CAT specifying that special procedures are to be taken for former members of the fourth branch of government, regular guests on Sunday talk shows, or people whose daughters claim "political controversy" or "policy debate" on TV.
U.S. Marshals, your duty is clear.