Isn’t This What Ejaz Haider Wanted: Conviction of Dr Afridi?

Two years ago, Shakeel Afridi was a government surgeon at a hospital in the tribal belt and commanded a small army of caregivers. Today he stands stripped of his job and his freedom, and is poised to become the latest flashpoint between the U.S. and Pakistan, tenuous allies at best.

Afridi, 48, was arrested in Khyber district just weeks after U.S. Navy SEALs found and killed Osama bin Laden in the Pakistani garrison city of Abbottabad last year in May — an operation that Afridi assisted by running an unauthorized hepatitis-B vaccination campaign to trace bin Laden through DNA samples of his children. Soon after, Pakistani court documents state, Afridi was “handed over to an intelligence agency,” presumably the ISI. In October, he was presented before the high-powered Abbottabad Commission, which includes a Supreme Court justice and a retired Army general, which had also recommended a treason trial for him. Within a week of that appearance, Afridi’s worldly possessions were confiscated and he was sacked from his government job, along with others who had reportedly helped him. He was in custody for almost a year until a local court took up his case

On May 24, that court — comprised of tribal elders and a government-appointed administrator — issued a five-page verdict finding Afridi guilty of having “close links” with the militant organization Lashkar-e-Islam (Army of Islam) and its leader, former truck driver Mangal Bagh. It states that Afridi helped militants in their fight against Pakistani troops by providing them free medical care and donating Rs. 2 million ($21,000) in 2008. He has been sentenced to 33-years in prison. The tribal court also notes that there was evidence of Afridi acting with “foreign intelligence agencies” but that it lacked jurisdiction to try him on that score. It recommends Afridi be tried for treason, an offense punishable by death, for aiding U.S. efforts to locate bin Laden.

“For now, we will only deal with the allegations that he was working with militant organizations,” says Ijaz Mohamand, president of the FATA Lawyers Forum and one of the men working on Afridi’s appeal. For its part, The Lashkar has denied any connection with Afridi. “We have no link to him, this has been concocted by the government,” said a Lashkar spokesman. “If we can, we will even kill him inside the jail.” The Lashkar said the sum paid by Afridi was a fine for him overcharging patients and performing unnecessary surgeries, it was not aid.

He was held incommunicado for one year. There are reports that he was first sentenced on the charges of spying for the CIA. However, after pressure from the US Pakistan altered the decision of the sentence to the subversive activities and collusion with a banned organization which ironically has now issued a Fatwa (edict) that he should be killed.

He has been intentionally shifted to Peshawar jail where the hard criminal prisoners from banned terrorist organizations are already detained. The family members of Dr. Shakeel are in hiding and receiving death threats from banned Muslim groups after the first decision of a tribal court, they have appealed to US government to save them.

After his arrest on May 24, 2011 for five days he was handed over to a joint interrogation team, mostly consisted of persons from the Army and its intelligence agencies. On May 29, 2011 the accused was then transferred to Military intelligence without a proper official handover. However, exactly after one year after this transfer a tribal court decided that the transfer was done properly.

The tribal court’s decision was announced on the occasion when the civilian and elected president of the country was on an official visit to Chicago to attend a conference of NATO countries. The attempt was to sabotage the visit in a campaign against the USA as the Pakistan Army was not happy with the incident at the Salala check post where, through the bombardment of USA forces, more than 25 Pakistani soldiers and officers were killed. The Pakistan army wanted an apology from the USA and pressured the government and parliament to pass a resolution for such apology.

There was a strong reaction from the US and the senate cut the aid to Pakistan by US$ one million as a symbolical protest against the sentence. There was also the introduction of two bills in the US senate suggesting to strip all foreign aid to Pakistan until Dr. Afridi’s sentence is overturned and this compelled the Pakistan army, who actually runs the country’s foreign policy, to change the decision by implicating him in subversive activities and links with militant organizations. On May 29, the tribal court changed its previous decision and announced that a four member tribal court had convicted Dr. Afridi on charges of colluding with the banned Lashkar-e- Islam and its wanted leader Mr. Muslim Bagh. The four-member tribal court did not entertain evidence relating to Dr Shakil Afridi`s involvement with the CIA, citing lack of jurisdiction as the main reason and recommended that he be produced before the relevant court for further proceedings under the law, leaving the option open for his trial under the treason law.

Dr. Afridi has been shifted to Peshawar prison in a very critical condition. He still bears torture marks on his body and suffers from the effects of the mental torture he faced during the one year of his illegal detention in unknown places. He has been kept in prison where more than 3000 prisoners are detained and among them are 250 terrorists belonged to banned Muslim groups. The provincial government of KP has appealed to federal government to shift Dr. Afridi from Peshawar prison as it is feared that he would be killed there.

Still no reaction has been seen from the federal government which does not have any influence on the cases of terrorism because it is the exclusive matter of Pakistan military. In the middle of the May a Bannu jail was attacked by the militants, they remained there for hours and released terrorists. The Pakistani Taliban vowed on Thursday to kill Dr. Afridi. In a statement a spokesman for the militant group, Ehsanullah Ehsan, told CNN. “We will cut him into pieces when we find him……..He spied for the U.S. to hunt down our hero Osama bin Laden.”

The case of Dr. Afrida has also exposed the working of the judicial system in Pakistan which is still a poodle of the military even though the judiciary claims that it is independent after its struggle in 2007 for the restoration of chief justice of Pakistan. The introduction of passing ‘short orders’ has been introduced by the ‘’independent judiciary’’ in the very recent past. The detail judgement comes very late during which period the media the Muslim fundamentalists and their cronies are allowed to discuss the decision and influence the detail judgment. The same thing happened with Dr. Afridi’s case that original decision was changed on the pressure from USA for suspending the aid.

In a militant infested tribal region it is rare to see a member of an outlawed group or terrorist organisation being tried or convicted. However, Dr Afridi was sentenced to such a harsh jail term, not for involvement in any act of terrorism, but on the charge of having links with Mangal Bagh. Until now officials have been vaguely saying that he was convicted on charges of involvement in anti-state activities and that was taken to believe that he had been sentenced for helping the CIA in its Abbottabad raid.

He was tried in tribal areas of the country which is totally against fair justice where he was not allowed to defend himself nor he was produced before the court. He was living in Abbottabad, KP province but he was tried in tribal court which has no jurisdiction to try a person from Pakistan territory.

A judicial commission headed by Justice (retired) Javed Iqbal has already recommended Dr Afridi`s trial under the treason law, though no formal charge has so far been brought against him for helping the CIA in a fake vaccination campaign to nail down Bin Laden to his abode in the scenic northern city of Abbottabad. The Commission has been writing its report for the past one year which is turning out to be `Mother of all Reports.’

Meanwhile, there is concern about Afridi’s safety. Mohammand of the lawyers forum explains that Afridi is being kept in complete isolation and has yet to speak to anyone — including his legal counsel or family. “We actually have no idea where he is. He could be in jail; he could be in a foreign country; he could be anywhere.”

It is most likely, however, that Afridi is being held in Peshawar’s central jail. “We have requested the federal government to move Dr. Shakeel Afridi from Peshawar to another jail. We fear he could be attacked,” Mian Iftikhar Hussain, information minister for the Khyber-Pakhtunkhwa province, told journalists on May 30. The Peshawar jail has more than 250 prisoners incarcerated on terror charges. According to Hussain, these “diehard militants” could attack Afridi.

Shaukat Qadir, a retired brigadier and columnist who has been provided unrivaled access to the Army’s Abbottabad files, agrees that the government would be unable to secure Afridi for very long: “There are enough al-Qaeda sympathizers in Pakistan that he will never be safe here.” Having seen some of Afridi’s interrogation documents, he said that the doctor was “definitely” working for the CIA, even if he didn’t know that he was spying on bin Laden. “He asked them for money, $10,000,” he says. “When things heated up, he even tried to contact the CIA station chief in Pakistan. No one would take his calls.” Indeed, some voices in both Pakistan and the West have blamed the U.S. for not doing enough to protect Afridi. Lawyer Mohamand agrees with Qadir’s assessment. It will be “very difficult” for his client to survive in Pakistan even if he is exonerated, he says. Says Qadir: “If he is ever freed, the only things waiting for him are either a deep grave or deep exile.”

Afridi’s travails have not gone unnoticed by the Obama administration. On May 25, Hillary Clinton said his “help was instrumental in taking down one of the world’s most notorious murderers.” The U.S., she said, “regretted” his conviction and sentencing. Earlier in January, Defense Secretary Leon Panetta defended Afridi on CBS’s 60 Minutes: “He was not in any way treasonous toward Pakistan.” Meanwhile, the U.S. Senate Appropriations Committee recently voted to cut $33 million from the $800 million annual aid budget for Pakistan — $1 million for each year of Afridi’s sentence — and Sen. Rand Paul has demanded all aid to Pakistan be stopped and that Afridi and his family be granted U.S. citizenship for his efforts in pinpointing the location of Osama bin Laden.

The law allows Afridi to appeal his conviction and sentencing — a course his lawyers have pledged to take, all the way to the Supreme Court if necessary. But given anti-American sentiment in Pakistan, there seems to be little or no sympathy for Afridi, even if he was instrumental in getting bin Laden — or perhaps because of it. “Of course it was treason,” says Qadir, the retired brigadier. “No country, including the U.S., would permit their citizens to act as spies for a foreign power — friendly or otherwise.” Says Abdullah Gul, a member of the far-right Defense of Pakistan coalition: “This is an internal matter and no one else should be expected, or allowed, to interfere. Afridi should be treated in accordance with the law.”

The assertion “that merely working for a foreign intelligence agency is not enough to render one a criminal” should be obvious. Foreign missions generally have intelligence personnel on cover postings. They also employ local people as household help. The domestic staff is not supposed to know, unless one or all of them also belong to the host country’s intelligence — often the case — about the ID of the person that has employed them.

In either case, whether they know it or not they are not in the same category as someone who has wilfully been in the employ of a foreign intelligence agency. Please note that I have not used the term “hostile” because no foreign intelligence agency is ever non-hostile even if it belongs to a “friendly” state.

Ditto for the example of the supposed CIA Station Chief going to a restaurant and being fed like other patrons: one, if he knows his craft, the restaurateur is not supposed to know who he is feeding; two, just because the state has allowed someoanswers: The first is that Osama bin Laden was not an enemy of the state of Pakistan. Presumably, this is not an argument that the government of Pakistan wishes to adopt — at least, not in public.

This is evidently not a legal argument and trots out an assumption which is not only unproven and uncalled for but places the onus of proving such an insinuation on those who make it.

Even if supposing it knows who the person is, does not mean the citizens’ dealings with that person outside of what is authorised, legal and in the line of one’s duty can be defended on the basis that if the state can have dealings with such a person so can the citizens.

Let’s then first posit that Afridi’s case cannot be likened to these examples.

What we are left with then is the argument that Dr Afridi is guilty of treason because he conspired to commit treason.

The legal question is then this: how is the decision by a Pakistani citizen to assist the forces of a military ally in killing Osama bin Laden equivalent to treason?

There are two possible arguments — that “the only entity legally justified in taking action against him was the state of Pakistan and that by assisting US intelligence agencies, Dr Afridi assisted in the violation of Pakistan’s sovereignty…”. This is “legally valid” but it assumes that Dr Afridi had specific knowledge of the fact that eventual action against Osama bin Laden was going to be taken unilaterally by US Special Forces without the approval and knowledge of the Pakistani government.

It is doubtful if this would be the case and since it is not possible that Afridi was privy to what action was to be taken against bin Laden then Dr Afridi is innocent of treason.

Wrong. Intelligence work is normally conducted on need-to-know basis. While Aridi was unlikely to know what exactly the Americans would do to take out bin Laden, much less know about Seal Team 6, it is enough, if proved, that he conducted an exercise to determine for a foreign intelligence agency the presence of bin Laden, knew what he was doing and did so without informing his own state.

He therefore not only acted in the pay of a foreign state but deliberately withheld vital information which resulted in terrible embarrassment for the State of Pakistan whose citizen he is.

Article 5 of the Constitution of Pakistan is clear with reference to “Loyalty to State and Obedience to Constitution and Law”.

In the Jonathan Pollard’s case Pollard was even granted Israeli citizenship in 1995 and successive Israeli governments have lobbied for his release. President Clinton wrote in his autobiography: “For all the sympathy Pollard generated in Israel, he was a hard case to push in America; he had sold our country’s secrets for money, not conviction, and for years had not shown any remorse. When I talked to Sandy Berger and George Tenet, they were adamantly opposed to letting Pollard go, as was Madeleine Albright.”

But there’s another case: Mordechai Vanunu. Vanunu blew the whistle on the Israeli nuclear programme. His defence was not just moral, opposition to nuclear weapons, but also legal: the Israeli state was in violation of International Law. Yet, the state of Israel did not buy it. Let’s however accept the argument that Vanunu had to violate his citizenship oath to his state because the state was in non-compliance of International Law obligations. In other words he couldn’t have co-opted a state that was violating an obligation. Can this defence be applied to Afridi at a theoretical level?

Perhaps. But then we will have to prove that the State of Pakistan was in non-compliance of the UN legal regime on terrorism. Empirical evidence suggests that Pakistani intelligence agencies have captured, killed, and handed over to the US more AQ and Taliban rank and file than all other agencies combined. It has deployed more than 110,000 troops in FATA and conducted multiple big and small operations in the area in support of the UN regime.

The defence that Afridi might have acted Vanunu-like therefore stretches credulity. Please note that I have offered this defence despite knowing that, as Vanunu’s and other cases testify, no state will ever accept this legal-moral position as viable defence. This is where we get into the problems of consent and sovereignty, accepted notions that place limits on the exercise of International Law and obligations.

Afridi should be allowed due process. If he then gets nailed, so be it.