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An equal exchange?

Publication Date : 05-09-2012


The doctor who assisted the CIA in trying to collect intelligence on Osama bin Laden, Shakil Afridi, probably had a dismal Eid.

Held at Peshawar Central Jail after having been sentenced to 33 years in prison by a tribal council under the Frontier Crimes Regulation (FCR), he probably had little to look forward to. Last month, there was more bad news. Dr Afridi’s appeal was adjourned for a third time due to the unavailability of the FCR commissioner.

Thousands of miles away, in a maximum security medical facility on the other side of the world, another Pakistani prisoner was also unable to celebrate Eid with any degree of festivity. Dr Aafia Siddiqui was sentenced by a US court to 86 years for having attempted to kill American soldiers. An Eid communique issued by the Free Dr Aafia campaign reported that it had been a trying day for her.

While the individual prisoners may remain in relative isolation, their cases — with the incidents in question occurring years apart — have become curiously wedded in a complex union of diplomacy, law and politics. Tina Foster, an attorney retained by Dr Siddiqui and her family, has said she has written to the Pakistani ambassador to the US, Sherry Rehman, suggesting a prisoner exchange in which Dr Siddiqui could be repatriated to Pakistan in exchange for Dr Afridi being sent to the US. Foster has also maintained that while the governments of Pakistan and the US do not have a formal prisoner exchange treaty in place, the former could at any time ask for the repatriation of Dr Siddiqui through diplomatic channels, but has not yet done so.

The possibility of a prisoner exchange is not a new one for the US. Even while rumours circulated of this particular exchange, another one was being brokered already. For months there has been talk of the US potentially transferring five Taliban leaders held at Guantanamo Bay in exchange for an American captured in Afghanistan.

According to a Reuters report last month, the US is considering transferring the five — all convicted of terrorism — to Qatar before the transfer of the American soldier, as a good-faith effort to revive American peace talks with the Taliban in Afghanistan.

No similar inroads seem to have been made on a possible exchange of Dr Afridi and Dr Siddiqui. A statement made by the chief of the ISI on August 31 quelled further rumours. Gen Zaheerul Islam said that no such deal was in the works and that the US should consider the chapter of the case of Shakil Afridi closed.

Prisoner exchanges in general and the cases of Dr Siddiqui and Dr Afridi in particular reveal in their details the grey areas between law, diplomacy and a "war on terror" largely dominated by the complex agendas of two spy agencies.

Judged purely on what exists on record, both Dr Siddiqui and Dr Afridi stand convicted; one in a public courtroom in America, the other in closed proceedings in Pakistan. Yet these dry legalities reveal little of the political taints of judgments in terrorism-related cases adjudicated in the middle of two deeply mistrustful political contexts.

Can a doctor thought to have collected information for the CIA ever get a fair and public trial in Pakistan? Similarly, can a Muslim woman dressed in a full burka ever be exonerated of anything by a jury in New York?

Furthermore, can either the Pakistani or the American public truly evaluate the guilt or innocence of one or the other individual, given that they likely possess only pieces of a puzzle whose entirety may only be known to intelligence sources in the two countries?

It is perhaps this very elusiveness of judgments hinging on facts which appear thin or divergent that reveals the tension between the aims of those trying to prosecute the two doctors and those trying to score political victories by jockeying for their exchange.

If US prosecutors trying to convict Dr Siddiqui in New York had to prove that she was a member of a transnational terrorist group, American diplomats interested in an exchange must show the exact opposite. The political value of any exchange would be based on their ability to convince Americans that giving up Dr Siddiqui would not mean she could mastermind a terrorist attack in the future.

Similarly, if an exchange were to be made politically palatable in Pakistan, it would have to somehow be shown that Dr Afridi, even though actually convicted for having links with a proscribed group, was never instrumental in collecting information for the CIA.

On top of these nuances are more complications. Dr Afridi tried to gather intelligence for the Americans and his release is being sought for the ostensible purpose of demonstrating that the US will protect those that help it to accomplish its objectives.

This is markedly different from Dr Siddiqui’s conviction, which is for the attempted murder of US soldiers during a detention that her attorneys contend was itself illegal.

While this would explain why the chief of the ISI (Inter-Services Intelligence, Pakistan's premier intelligence agency) does not see the exchange of the doctors as equivalent, it again brings forth questions of equivalencies of procedure.

Perhaps if Dr Afridi, like Dr Siddiqui, had been convicted in an open courtroom instead of under the auspices of a tribunal, his culpability may have become as questionable via legal appeals as hers continues to be. While that possibility remains speculation, its outcome would again assert not a judgment of guilt or innocence but one of an exchange based on unanswered questions.

The writer is an attorney teaching constitutional law and political philosophy.


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