Crossposted from www.JohnTFloyd.com
The Tragic Case of the “The Gray Lady of Bagram”
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
The U.S. Government contends Aafia Siddiqui's alleged links to terrorism began in June 2001—some three months before the 9/11 terror attacks on New York City's Twin Towers. According to government sources, Siddiqui made a trip from Quetta, Pakistan to Monrovia, Liberia, where she was met by a car and driven to the Hotel Boulevard, a known al Qaeda safe house. A week later Siddiqui allegedly left Monrovia in the same inauspicious manner in which she arrived—the only difference being is that she carried with her a large parcel of Africa's illegal diamonds, a hard-to-trace but key funding source for al Qaeda's terror operations.
Nearly three years later on May 26, 2004 former U.S. Attorney General John Ashcroft and FBI Director Robert Mueller held a new conference during which they announced the government had received reports that al Qaeda planned terror attacks in the U.S. that summer or fall. Director Mueller specifically named Aafia Siddiqui as “an al-Qaeda operative and facilitator” and one of the seven al-Qaeda suspects being sought in connection with the impending terror plots. Attorney General Ashcroft added the seven suspects posed “a clear and present danger” to America and should be “considered armed and dangerous.”
As soon as Siddiqui's photo was displayed during the Ashcroft/Mueller news conference an informant was convinced Siddiqui was the same woman who went to Monrovia in June 2001 and left with the package of illegal diamonds. The informant called the Special Court for Sierra Leone, which was investigating Africa's illegal diamond trade, and reported Siddiqui's alleged ties to the diamond trade on behalf of al Qaeda.
Siddiqui's family vigorously disputes the notion that Aafia was ever in Monrovia. They say she was living in the Back Bay Manor in Roxbury, Massachusetts taking care of her own three children and her sister's child (while the sister finished a fellowship in neurology at Brigham and Women's Hospital), as well as being a wife to her husband who was an anesthesiologist at Brigham and Women's Hospital.
Elaine Whitefield Sharp, Aafia Siddiqui's attorney, told Boston Magazine in 2004 that she could prove her client was in Boston in June 2001. Proving Siddiqui was never in Monrovia is crucial, says Sharp, because it undermines the Government's accusations that she is a terrorist.
There are no substantial trail signs from Siddiqui's past to support the charges that she not only became a violent jihadist but a major player in al Qaeda's inner circle who helped formulate sophisticated terror plans to attack the United States. She was born in Karachi, Pakistan in 1972, one of three children from a prominent family. Her father, Muḥammad Siddiqui, obtained his medical education and degree as a doctor in England and her mother Ismet was a homemaker.
All three Siddiqui family children are educated professionals. Aafia's brother is an architect who lives in Houston with his pediatrician wife and their children. Aafia's sister trained at Harvard to become a neurologist and worked at Sinai Hospital in Baltimore before returning to Pakistan several years ago. Aafia herself moved to Houston in 1990 to be closer to her brother, and after attending the University of Houston for just one year, her grades were so outstanding she was accepted at MIT.
While at MIT, Siddiqui joined an association of Muslim students and wrote pamphlets trying to teach others about Islam. “She was religious, but that wasn't unusual [at MIT],” one former MIT student recalled for Boston Magazine. Another student agreed: “She was just nice and soft-spoken. She was not terribly assertive.” As a biology major at MIT, Siddiqui won a $5,000 grant she used to study the effects of Islam on women in Pakistan.
Aafia's family reportedly became concerned after their daughter graduated from MIT that she had not married. So they arranged a marriage for her to Muḥammad Amjad Khan who was medical student from a wealthy family in Pakistan and who, like Aafia, was studying in Boston to get his medical degree. Khan seemed to the Siddiqui family to be a mainstream Muslim trying to make a successful life in America. He apparently even encouraged Aafia to pursue her education—something she did. She enrolled at Brandeis University as a graduate student in “cognitive neuroscience,” reported Boston Magazine, after graduating from MIT.
Tragically, these extraordinary educational achievements would have devastating consequences on Siddiqui's public image after the 2004 Ashcroft/Mueller news conference. Members of the media, always game for a sensational angle, true or not, began to attach the following titles to her name: neurologist, geneticist, and microbiologist. The media parlayed these manufactured titles into evidence of Siddiqui's skills to produce potentially horrific terror plots against the United States.
“They [the media] started with the whole idea that Aafia was involved in biochemical warfare,” Sharp told Boston Magazine. “She wasn't taking brains cells and testing how they reacted to gases. But there's all this news in the media about the changing face of Al Qaeda and the neurology scare, and now we've got this MIT graduate with a Brandeis PhD who's cooking up all these viruses.”
When asked by Boston Magazine if Siddiqui' training at Brandeis could be used for terrorism activities, Paul DiZio, a professor of cognitive neuroscience who sat on Siddiqui's dissertation committee, had to laugh. “I can't see how it can be applied to anything,” he said. “It's not very applied work. It didn't have a medical aspect to it. And, as a computer expert, she was competent. But you know, call her a mastermind or something does not seem – I never saw any evidence [of that].”
Actually at this point in her life Aafia Siddiqui was grappling more with a deteriorating marriage than anything else. Her husband was about to complete his residency at Brigham and Women's Hospital. She had virtually given up all thought of having a career outside the marriage, and she was facing tremendous pressure from Khan, who according to Siddiqui's family, wanted to return with the children to Pakistan where he could raise them as conservative Muslims. Aafia wanted to live in the West and keep the children under her mainstream Islamic tutelage.
The īmān of The Mosque for the Praising of Allāh in Roxbury did not see any evidence of Aafia being a “fundamentalist” Muslim. “What I know of her,” Abdullah Farung told Boston Magazine, “is that she was living here in America, and her organization (which distributed Korans and books to prisons and school campuses) was for sharing Islamic information with the American people..” Farung added that Aafia often told him: “'As long as it's not evil, I can do it. I show my hands, show my face, I drive my own car. I have my credit cards.'” Farung said Aafia told him that because she wanted him to know that “she was an American girl. Put that down: Aafia Siddiqui was an American girl. And a good sister.”
The īmān of the Islamic Center of New England, Talal 'Īd, shared the same view of Aafia. He was particularly impressed with her efforts to raise money to help Bosnian orphans. “You know,” he told Boston Magazine, “we were all active, but to see a woman who was active in this way was really something nice.”
There were actually more public signs that Khan (who bitterly denounced his former wife earlier this year as a violent jihadist) was associated with radical Islam than Aafia. In the immediate aftermath of 9/11, the FBI began a nationwide search of any connections between Muslims in America and Saudi nationals, especially connections associated with financial transactions. The agency instructed the nation's banking institutions to review their records for any suspicious transactions.
These efforts prompted the FBI to focus its attention on Khan and Aafia. The Fleet National Bank in Boston, where the couple had accounts, began tracing money received by its Saudi national account holders from the Saudi Embassy. One of those customers, Hatem Al Dhahri, listed his address as the same address of the condo in which the Siddiqui's lived. Another Saudi national bank customer, Abdullah Al Reshood, received a $20,000 wire transfer from the Saudi government in the weeks prior to 9/11, drawing the attention of the FBI. A Saudi government official would later explain to the Boston Globe that the money had been sent to Al Reshood to pay for medical treatment for his wife. These financial inquiries also discovered that Al Dhahri and Al Reshood had taken over the lease of the Siddiqui condo because, as the Siddiqui family explained, the couple was planning to move. However, these connections and financial transactions, coupled with Aafia's regular debit-card payments to Benevolence International (a charity organization banned by the U.N. after 9/11), did attract attention from the FBI on Aafia.
But it was actions by Khan that drew the most attention from the FBI after the agency discovered through the financial investigations that he had been purchasing what the agency called “high-tech military equipment.” The equipment included night-vision goggles, body armor, and military manuals Khan planned to send to Pakistan. The FBI called the couple in for questioning, but after incidental questioning, the agency released Aafia. The FBI continued its questioning of Khan. In addition to the military equipment purchases, the FBI was also interested in what they described as “major purchases” from U.S. airlines and hotels in Pennsylvania and North Carolina, as well as an $8,000 international wire transfer to the Habib Bank in Pakistan in December 2001, from accounts associated with Khan and Aafia.
Shortly after this FBI attention, Khan and Aafia returned to Pakistan saying it was too difficult for Muslims to live in the U.S. after 9/11. They did not stay long before returning to America where they remained several more months before once again returning to Pakistan. The moving was hard on Aafia. She was pregnant with a third child and the tension between her and Khan had escalated to the point they were force to separate. Aafia moved in with her parents while Khan lived elsewhere in Karachi.
Sharp told Boston Magazine that Khan went to Aafia's parents' house with a letter stating his intentions to seek a formal divorce. A bitter argument ensued between Aafia's parents and Khan, and it became so intense that it triggered a fatal heart attack with Aafia's father. Aafia gave birth to a son several weeks after her father's death.
In December 2002, Aafia returned to the United States alone. She took a job in Baltimore to be close to her sister who was then working at the Sinai Hospital. Sharp told Boston Magazine that Aafia obtained job interviews at Johns Hopkins and SUNY. The FBI, however, had other ideas about why she returned to America. The agency believed she returned to open a post office box for Majid Khan—an al Qaeda operative reportedly under the control of Khalid Sheik Muḥammad who, the FBI believed, was plotting to blow up fuel tanks and gas stations in the Baltimore-Washington area. Siddiqui's family strenuously disputes this FBI claim, saying they did not believe Aafia opened a post office box but if she did, it was to receive replies from her job search efforts and not for any terror-related reasons.
Whatever the purpose of Aafia's return to America in December 2002, her case took a bizarre, and still unexplained, turn after March 1, 2003 when Pakistani authorities arrested Khalid Sheik Muḥammad, the mastermind of the 9/11 attacks. He was turned over to U.S. authorities, and in the days and weeks after being given to the Americans, Muḥammad was subjected to a litany of horrific CIA torture methods, including dozens of water boarding episodes. This mastermind, who was one of the FBI's original 22 Most Wanted Terrorists after 9/11, gave up the name, rank, and serial number of every Muslim suspect in the world, including Aafia Siddiqui. It was apparently through the Muḥammad torture sessions that the FBI gained information from the CIA that Siddiqui had rented the post office box in Baltimore for Majid Khan. The FBI (or CIA) leaked this information to the media because CNN reported about the claim on April 3, 2003—just four weeks after Muḥammad's capture. Apparently, every name the CIA torturers put before him, Muḥammad readily agreed was involved in some sort of “terror plot.” Whatever the CIA wanted, Khalid gave to them.
And the government continued to dribble these “terror plot” leaks to the media during the ensuing months of Khalid's capture. For example, the Boston Herald reported shortly after Khalid's arrest that Siddiqui had been linked to Adrian El Shulrijumah “whose name surfaced among the belongings of [Muḥammad].” The fact that Aafia was the first woman with ties to al Qaeda being sought by the FBI captured the media's insatiable need for sensationalism. UPI on March 29, 2003 carried an international report that said the FBI was convinced Siddiqui was a “fixer” who moved al Qaeda money around to support the group's terror operations.
Then the Siddiqui saga took still another bizarre turn. The Press Trust of India in April 2003 reported Aafia had been arrested at a relative's residence in Karachi just after returning from an overseas trip. The India-based news organization reported Siddiqui was in the custody of the FBI and was being questioned by the agency. U.S. intelligence sources confirmed to this foreign news organization that Siddiqui was “essentially” in the hands of the FBI.
Aafia's mother, however, was not aware of any arrest of her daughter at a relative's residence. The last time she saw Aafia was about a month after Muḥammad's arrest when her daughter and three children got into a taxi and headed for a local train station. After that, the mother says Aafia and her children seemingly vanished from the face of the earth. A few days after her daughter's disappearance, Aafia's mother was visited by a man on a motorcycle who told her Aafia was being held and that if she ever wanted to see her daughter and grandchildren again, she had better keep quiet.
This story tracks with one relating to Aafia's uncle who began talking publicly about his niece's arrest. These public comments about an “arrest” captured both the attention and concern of the FBI. The agency immediately issued an official statement that it had no knowledge about either Siddiqui's arrest or detention. This statement was contradicted by an initial Pakistani Urdu press report which said Siddiqui and her children had been seen being taken into custody by Pakistani authorities. A spokesman for Pakistan's interior ministry and two unnamed U.S. officials confirmed the arrest, but, strangely, these same officials several days later backtracked from their initial Siddiqui arrest confirmation, telling the media it was unlikely Siddiqui was in custody.
At this juncture Aafia's mother was hysterical. She flew to New York City to see if she could find out what happened to her daughter and grandchildren. She was met at the JKF Airport by men she thought represented the U.S. government and who were there to help her find her daughter.
“She's detained for four hours by the FBI, NYPD, Homeland Security,” attorney Sharp told Boston Magazine. “She thinks they're all there to help her. That's how naïve she was. And she's crying and saying, 'Tell me where my daughter is,' and they don't know where her daughter is and they let her go.”
Aafia's sister went to the airport, picked up her mother, and took her back to Baltimore with her. “And the next thing they know,” attorney Sharp continued, 'there's a knock at the door, and it's the FBI and they're very aggressively saying a subpoena for Ismet Siddiqui [Aafia's mother] to come here to Boston to testify before a grand jury.”
In the days after the subpoena was served on Ismet Siddiqui, she and her daughter and son all met with FBI agents and the U.S. Attorney's office in Boston. “We gave them everything,” Sharp says. “And they're saying, 'We still think she has another life that you don't know about.'”
This position taken by the FBI defied its own Seeking Information Alert which had been released immediately after the May 2004 Ashcroft/Mueller news conference. While the FBI director had specifically called Aafia “an al-Qaeda operative and facilitator” who was wanted in connection “with possible terrorist threats against the United States” during the news conference, the actual Alert was not so specific: “Although the FBI has no information indicating this individual (Siddiqui) is connected to specific terrorist activities, the FBI would still like to locate and question this individual.”
The weeks passed into months and months into years as the Aafia Siddiqui disappearance mystery assumed international proportions. In July 2004 al Qaeda operative Ahmed Khalfan Ghallini, facing a U.S. indictment in connection with the U.S. embassy bombings in Africa, was captured by Pakistani forces in a joint operation with the U.S. Several press reports following his arrest linked Aafia Siddiqui to al Qaeda illegal diamond trade in Liberia. The Boston Globe at the time reported that the week Aafia allegedly spent in Monrovia in June 2001 was at the personal invitation of then Liberian President (and now convicted war criminal) Charles Taylor. Once again the media was tying Aafia to terrorism activity without any real factual basis.
By 2007 most of the people who knew Aafia feared she and her children were dead, even though Human Rights Watch reported in February of that year that Siddiqui may have been held in one of the CIA's “black site” prisons where both captured and illegally kidnapped terror suspects were held for torture interrogations. In March 2007 former Pakistani President Pervez Musharraf suspended Pakistan's Supreme Court Chief Justice lftikhar Muḥammad Chaudhry who was then leading an investigation into the secret detentions and disappearances of over 500 Pakistanis, including Siddiqui
Then in 2008 reports began to circulate about “The Gray lady of Begram,” the infamous military prison in Afghanistan long suspected of being a torture facility worse than Guantanamo Bay. The first legitimate reports about this “gray lady” came from a British journalist named Yvonne Ridley who told Daily Times of Pakistan on July 7, 2008 about a Pakistani woman who had been held for years in solitary confinement in the Begram Theater Internment facility. Ridley went on to write about this “Prisoner 650” who had endured torture and repeated rapes over a four-year period. It was Ridley who coined the term “gray lady” of Begram because the prisoner appeared to be a “ghost” who agonizing cries and screams forever haunted those who heard them. “This would never happen to a Western woman,” Ridley eloquently wrote.
Ridley's account about the “gray lady” of Bagram gained credence when other former Bagram prisoners began to speak about “prisoner 650.” The Daily Times and Adnkronos News Service in Pakistan even reported that “prisoner 650” had gone insane and cried all the time.
The mystery of Aafia Siddiqui suddenly exploded into the public arena again on July 17, 2008 when she, and her oldest son, were reportedly arrested by Afghanistan National Police in Ghazni near the residence of the provincial governor. According to a federal indictment issued in the Southern District of New York, Siddiqui had in her possession handwritten notes that referred to a “mass casualty attack” and listed various locations including the Empire State Building, Plum Island, the Statue of Liberty and the Brooklyn Bridge. The indictment further alleged that the handwritten notes contained information about a “dirty bomb,” chemical and biological weapons, and other explosives along with a mortality rate for each weapon.
The government further charged that on July 18, 2008, a team of military and law enforcement personnel, along with interpreters assisting them, went to the Afghanistan National Police compound in Ghazni to interview Siddiqui. The team was escorted to a room where the interview was to be conducted. A curtain separated the interview room from another room. Siddiqui was reportedly in the adjacent room unbeknownst to the U.S. team. The military personnel rested their guns against a wall at which time Siddiqui allegedly grabbed one of the weapons and shot one of the military personnel with it. She was also wounded before being restrained. In addition to terror-related charges, she was indicted for the attempted murder of a U.S. national.
On August 4, 2008, Aafia Siddiqui was returned to New York to face the criminal charges against her. When she appeared before a federal Magistrate Judge that day, Siddiqui refused to accept the charges brought against her by the U.S. government. Her attorney at the time, Elizabeth Fink, told the Magistrate Judge that no one could believe anything the FBI said about the case and argued there was evidence to show Siddiqui had actually been arrested in Karachi in March 2003 along with her three children.
As a matter of fact, The Daily Times reported on August 8, 2008 that official documents existed which proved Aafia and her three children had been arrested in Pakistan in March 2003—not in Afghanistan in 2008 as alleged by U.S. authorities. The newspaper stated that “sources close to the matter claimed the Interior Ministry asked the provincial home departments for detailed reports on missing persons a couple of weeks ago, and that the list prepared by the Sindh Home Department included Dr. Siddiqui and her three children, Maryam, Admed and Suleman. The report confirmed MI detained Dr. Siddiqui and her three children in Gulsham-e-Igbal on March 30, 2003, later handing her over to the Federal Bureau of Investigation (FBI).”
Regardless of the government involved, no official report prepared by any foreign authority has ever coincided with American accounts in the case. For example, the highly respected news wire service Reuters reported that Afghan officials offered a different version about Siddiqui alleged capture in Ghazni. The Afghan National Police were reportedly suspicious when they saw Siddiqui and her teenage son in the vicinity of the Governor's mansion and took the pair into custody. Reuters reported a dispute erupted between Afghan and American officials the following day over Siddiqui' custody. Reuters went on to say American military personnel disarmed the Afghan police and proceeded to shoot Siddiqui who was neither armed nor resisting. The Reuters report explained the shooting this way:
“U.S. soldiers then proceeded to disarm the Afghan police at which point Siddiqui approached the Americans complaining of mistreatment by the police. U.S. troops, the officer said, 'thinking that she had explosives and would attack them as a suicide bomber, shot her and took her.”
On August 11, 2008, Siddiqui appeared before a federal judge in a wheel chair. Attorney Fink pleaded with the magistrate to order medical care for her client. Reuters reported Fink told the judge: “She has been here, judge, for one week and she has not seen a doctor, even they [U.S. authorities] know she has been shot.” Christoper LaVigne, one of the prosecutors in the case, defended the lack of medical care on the grounds that Siddiqui is a “high-security risk.” Judge Robert Pitman was not impressed with that justification, ordering government prosecutors to make sure Siddiqui was seen b a doctor within 24 hours.
The Human Rights Commission of Pakistan immediately charged that during her captivity Siddiqui had a kidney removed; her teeth removed; her nose broken and improperly set; and that her gun shot wound had not been properly treated. Another Reuters report followed up these charges that Siddiqui believed she had lost part of her intestines as a result of the gun shot; that she was still suffering from internal bleeding. “Lawyers for Siddiqui said last week she appeared confused and did not know where she had been,” Reuters added, “except to claim that she was held captive by unknown authorities in a small room.”
After years of isolation and torture, enhanced interrogation techniques, Dr. Aafia Siddiqui consistently refused to communicate with her attorneys, to participate in the preliminary trial proceedings against her, or to accept any medical or mental health assistance/treatment from prison officials. The court ordered the federal Bureau of Prisons to conduct a psychological evaluation of Aafia which found that she is suffering from a “depressive type psychosis.” Based on this preliminary diagnosis, the government requested that the court find reasonable cause to believe Siddiqui is suffering from a mental disease or defect which could prevent her from understanding the court proceedings against her. In an extraordinary move, the government itself asked the court to conduct a competency hearing.
Citing the lack of adequate professional psychiatric treatment available at New York's Metropolitan Detention Center, Siddiqui's attorneys further requested, over strenuous objections by the prosecution, that their client be transferred to a state mental health facility where she could receive badly needed mental health treatment.
The district court brushed aside both these requests, and on July 29, 2009, found Siddiqui was competent to stand trial. In a written order, the court stated (1) that Siddiqui had “sufficient present ability to consult with her lawyers with a reasonable degree of rational understanding and she also has a rational as well as a factual understanding of the proceedings against her;” and (2) “this is an instance where a defendant may have some mental health issues but may nevertheless be competent to stand trial.”
It is obvious that the trial judge, the Honorable Richard M. Berman, was determined to have a trial of the merits. However, because of the convoluted history of Aafia Siddiqui case, a reasonable assumption could be made that the government did not want this case to come to trial; that it would have preferred a ruling from the court that Siddiqui was incompetent to stand trial—a ruling that would have resulted in her being carted off to a federal psychiatric facility where she would have once again disappeared into a an official “black hole” in the federal prison bureaucracy. Famed Louisiana criminal defense attorney Jack Martzell once observed to a client that the federal prison system has the unfettered power to make any prisoner disappear, even from his own attorney.
But then the Pakistani government developed an acute interest in the Siddiqui case. On July 21, 2009, the Pakistani Ambassador to the United States, Husain Haqqani, spoke with Siddiqui by telephone and informed her that the Pakistani government was making efforts on her behalf. The Pakistani government sought out and secured the legal services of a high-profile defense team with expertise in the kind of charges the U.S. government has brought against Siddiqui to take over her defense. The team included Charles Swift who gained international recognition for his representation of Osama bin Laden's driver, Salim Hamdan.
Even before the new defense team came on board, Siddiqui's other attorneys had already mounted an aggressive defense in her case. One of the most impressive defenses made by the team was a challenge to the government's authority to prosecute Siddiqui for the attempted murder of the U.S. soldier in Afghanistan. In support of a motion to dismiss this particular charge, the attorneys argued:
“We should note from the outset that defense counsel's challenge to the extraterritorial application of sections 111, 924(c) and 1114 of Title 18 in the context of an alleged assault on a soldier while in a war zone is 'novel' (the government's word) only because the government is for the first time invoking these sections in such a context. In this instance, to be fair, we credit the government with novelty rather than ourselves.
“As for the government's attempt to 'eviscerate' our argument by noting that the team that came to interview Dr. Siddiqui was comprised of some persons who were not in the 'uniformed services'—agents of the Federal Bureau of Investigation, for example—we must remind the government that … United States Army Officer Two is identified as the main target of the assault. While the government may wish that the presence of non-uniform federal employees turned the so-called Interview Team into the investigatory and/or law enforcement team protected by those statutes, we respectfully submit that the substantial presence of the United States military persons comprising the Interview Team broadcasts loudly and clearly that this was a military operation occurring in a war zone. Thus, contrary to the government's argument, the fact that the visit to Dr. Siddiqui by United States military personnel was a military operation places this case clearly beyond the holdings [of established case law].
“In divining whether Congress intended section 1114 of Title 18 to be used in the context of assaults on military troops in war zones abroad, both parties have focused on the words '(including any member of the uniformed services)' that were added to section 1114 in the 1996 amendment. For the government, these words somehow make 'plain' that the provision assumes extraterritorial application because it contemplates the indictment of those who assault United States servicemen deployed to war zones abroad because that is where they 'primarily face danger.'
“But the government's interpretation is not in accord with the history of section 1114. Until the amendment of 1996, section 1114 was principally a list of federal officers and employees beginning with United States federal judges, moving to United States attorneys and their assistants to United States marshals and then to officers and employees of non-uniform agencies like the Federal Bureau of Investigation, Postal Service, Secret Service and the Drug Enforcement Agency. A cursory glance at this version of section 1114 makes it abundantly clear that the officers and employees contemplated by the statute are those associated with investigation and law enforcement and not military operations.
“In the 1996 amendment, the language of which is the same as the current language Congress clearly wished to abandon the use of a list that enumerated officers and employees of the United States covered by the statute. In its place, Congress offered a statute that used general language that would be construed in line with the list that preceded. Presumably because some of the enumerated officers and employees in the pre-1996 statute were those who wore uniforms—Coast Guard members and officers of the Park Service, for example—the present language of '(including any member of the uniformed services)' was added to ensure they were covered by the statute.
“The 1996 Amendment must be viewed as merely editorial in intent (i.e., replacing enumeration with general terms) because there was absolutely no pronouncement of a radical change in the sweep of this statute to include extraterritorial applications such as assaults on United States military personnel engaged in war abroad in the discussion of the purpose and legislative history of the act of which the 1996 Amendment was a small part. Nor is there any discussion of the larger significance of the 1996 Amendment where it is proposed in the actual bill. Thus, the plain language of section 1114, both pre- and post-1996 Amendment, indicates that its application was limited to investigatory and law enforcement officers and employees, and most definitely not to those engaged in military operations abroad.
“ … If the government's argument is to be viewed as the correct one, then any foreigner whose nation is at war with the United States who attacks any member of the United States military is amenable to criminal proceedings in the United States pursuant to section 1114. Not only does such a scenario not make sense, it contravenes international law in the form of the Geneva Conventions, which views enemy combatants as protected persons.
“Article 4 of the Third Geneva Conventions generally protects prisoners of war for their combatant activities, and particularly Article 89 and 92 of the Third Geneva Convention. Article 92 makes a prisoner of war who attempts to escape and is recaptured before having made good such an escape liable only to disciplinary punishment prescribed under Articles 89 and 90. Articles 89 and 90 limit disciplinary punishment to 30 days confinement and Article 97 further prescribes that prisoners may not be transferred to a penitentiary establishment to undergo disciplinary procedure therein. Accordingly, a prisoner of war that attempts to escape by grabbing a weapon and firing at his captors would certainly risk being killed or injured himself, and liable for 30 days disciplinary punishment should he be re-captured, but he would not be facing attempted murder charges. Even if Dr. Siddiqui were judged not to be a prisoner of war, she would nevertheless be protected under the Fourth Geneva Convention protecting persons in occupied territories.
“If not a combatant, Dr. Siddiqui would almost certainly be judged as a saboteur under the facts presumed by the government, or a person under definite suspicion of activity hostile to the security of the Occupying Power. Article 5 of the Fourth Geneva Convention indicates that such persons not be deprived of the rights of fair and regular trial prescribed by the present Convention. Article 66 of the Convention permits the occupying power to hand the accused over to a properly constituted, non-political military court on the condition that said courts sit in the occupied countries. Accordingly, the Geneva Convention specifically forbids what has been done in Dr. Siddiqui case, that is, to transfer her to a civilian tribunal not sitting in the occupied territory.
“In order to avoid a collision between the Geneva Convention and section 1114 of Title 18 of the United States Code, the latter cannot be viewed as criminalizing attacks of United States military personnel engaged in military operations in a theater of war by perceived enemy combatants.” [Internal citations in motion omitted]
Why did the government elect to prosecute Aafia Siddiqui for attempted murder under section 1114 of Title 18 when it had already secured an indictment of her as a “terrorist” under section 2332(b) of Title 18 which would have resulted in a mandatory life sentence if convicted?
We can only suspect the government was not confident of its ability to prove a terrorism case against Siddiqui under section 2332(b); therefore, it used the attempted murder charge under section 1114 as a fall back position. Whatever the reason for the government's attempt to prosecute under section 1114, for which we do not believe it had the authority, it is clear that the U.S. government wanted Aafia Siddiqui to permanently disappear, either in a federal psychiatric facility or in one of its “super max” federal prisons.
On February 3, 2010, an eight-woman and four-man federal jury found Aafia Siddiqui guilty after hearing nearly two-weeks of evidence. The trial began with unfortunate and intemperate outbursts by the mentally beaten down “Lady Al Qaeda” (as she was dubbed with prejudice by government officials) and ended with the same kind of outburst: “This is a verdict coming from Israel, not America,” Siddiqui said while being led from a Manhattan courtroom. “That's where the anger belongs. I can testify to this. And I have proof.”
Siddiqui's defense team promised an appeal of the guilty verdict, saying she was too mentally incompetent to stand trial. The MIT-trained neuroscientist will be sentenced on May 6, 2010 when she will face the reality of what will most likely equate to a life sentence in federal prison.
Opposing parties had different takes on the final outcome of this bizarre case. “Juries do make mistakes,” said Elaine Sharp, one of Siddiqui's attorneys. “Juries do go wrong. In my opinion, this verdict is based on fear, not fact.”
Assistant U.S. Attorney Preet Bharara, on the other hand, believed the jury did its job: “Today, a jury 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.”
Even accepting the jury's verdict that Siddiqui is guilty, there is substantial evidence that she has been treated abominably by the U.S. government, particularly if she was secretly held in solitary confinement at the Begram torture facility between 2003 and 2008. She now faces a life sentence in a “super-max” federal prison—a prospect that certainly is not going to help our relations with Pakistan, particularly as we try to encourage that country to upgrade its “war efforts” against the al Qaeda and Taliban insurgents attacking U.S. forces in Afghanistan. The Pakistani government does not believe Siddiqui is “Lady Al Qaeda” and spent $2 million on a defense team to prove it.
The Aafia Siddiqui case now stands as a horrible reminder of the unlawful legacy of former President George W. Bush's declared “war on terror.” Foreign citizens were kidnapped and tortured during the Bush administration—many of whom have now been declared “innocent” by our own government.
Given the mystery of the years of her unexplained absence and the government's obvious attempts at secrecy and deception, we may never know the truth of Aafia Siddiqui's case. What we do know is the government's failure to openly and honestly discuss the facts of her case, as well as the events leading to her arrest and detention, has permanently tainted the legitimacy of her conviction for millions of observers from around the world.
And whatever else any one may think about the Siddiqui case, it clearly demonstrates that the American federal court system is capable of handling “terrorism” cases. Siddiqui was foreign born and captured on foreign soil, but tried in an American civilian courtroom. This fact seriously undercuts claims by those who say that all “terrorism” cases, especially those involving foreign born suspects captured outside the United States, should be tried before military tribunals.
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- Who is Aafia Siddiqui: Terrorist or Government Pawn?
- Dr. Aafia Siddiqui – The Punishment Does Not Fit the Crime
- Wikileaks Renews Dr. Aafia Siddiqui Mystery
Wikipedia, Aafia Siddiqui
Court documents, United States of America v. Aafia Siddiqui, United States District Court for the Southern District of New York, Case No. 08 cr. 826 (RMB)
Aafia Siddiqui's attorneys: Dawn M. Cardi, Dawn M. Cardi & Associates, New York, New York; Elaine Whitfield Sharp, Marblehead, Massachusetts; Linda Moreno, Tampa, Florida; and Charles Swift, Swift & McDonald, Seattle, Washington.