Banning torture in U.S. courts

There was a court hearing to determine the sanity of Aafia Siddiqui yesterday. At least, that is what the various news sources seemed to be reporting on. Formally, it was a hearing for both the prosecution and defense psychiatrists to present their documents and reasoning on the fitness of Ms. Siddiqui to stand trial for attempting to kill U.S. government agents in Ghazni, Afghanistan. Informally, I think I was left wondering whether the U.S. justice system could deal with the case at all.

No, I'm not getting ready to pitch alternative justice. I'm not a big believer in the Military Commissions Act of 2006, I would like to see it repealed. President Obama's speech advocating a system of indefinite detention chilled me to the bone. And the trial balloon floated by Benjamin Wittes and Colleen Peppard made my blood boil. The U.S. judiciary has handled crises, criminal trials, trials with heavy political overtones, civil rights, human rights, corporate rights, and every other thing that has been thrown at it and remained resilient.

Torture eats at the court

But not this. I am increasingly of the opinion that there is no possible way for a U.S. court, based firmly on the rule of law, deriving its powers from common law, the Constitution, the U.S. code, and all the international laws, treaties, and customary law, a court in which due process is guaranteed to everyone without regard to background, and which strives to mete out justice and observe the innocence of the accused until proven guilty -- a court with such high ideals and aspirations -- no possible way to accuse someone of a crime and try them in this court, while there is an unspoken allegation that the government bringing the accusation has, in fact, tortured the defendant for years while holding them in conditions of enforced disappearance and incommunicado detention. Because the unspoken rule in a U.S. court of law is that the government bringing criminal charges against the accused has, itself, committed no crime against the accused, and certainly not one of the most heinous of crimes, one for which there is no affirmative defense at all. Whether or not the charges against the government are true, there does not seem to be any way to conduct a real trial when the government stands accused variously of incommunicado detention, torture with threats of death, possible killing of a child, nudity, rape, extreme isolation, and druggings.

First, there is the issue of her appearance in court. Ms. Siddiqui was brought into court by force yesterday. But this is the first time this was done. It wasn't important to have her at court for her arraignment, for her bail hearing, or for her hearing remanding her to Carswell for psychiatric observation. The first time it is totally necessary for her to come to court is when she faces a devil's choice: From her point of view, the prosecution seeks to imprison her for life, the defense seeks to drug her and imprison her for life. Whether or not she is sane, she ascribed her talkativeness to the fact that it might be her last opportunity to try to tell her side of her story -- as she put it, "I've seen people on the drugs, they can't talk."

How was she supposed to sound, and what should she have said or not said? If the charge of 'malingering', leveled at her by prosecution psychiatrists is true, it indicates she will say or do anything to avoid what? A conviction that would put her in jail for 30 years to life. The prosecution psychiatrists also say that recordings of her calls from Carswell to her brother Mohammed (did she know she was being surveilled, and does she have a right to?) indicated that she is fully cognizant of the charges and what is happening with the trial. A Ph.D. in neuroscience doesn't need to be told that a finding of 'psychologically unfit to stand trial' means either forced medication to produce fitness for trial, or indefinite incarceration. If she will take that risk to avoid trial, why would she not take any risk to say anything at all that she thought might help her case, once in front of the judge? Why then would her 'outbursts', no matter how 'rambling', be anything other than an attempt at the preferred outcome? How is it that a court can think of her as crazy when she interrupts them, and sane when she says things to psychiatrists?

In earlier court documents, one of the psychiatrists at Brooklyn MDC, had stated that she might be suffering from the effects of torture. There is a standard protocol for examining a victim of torture for psychological scars and effects. There is no record in any of the public information, certainly not in any news coverage, that the two words Istanbul Protocol were ever spoken in Judge Berman's court, that any of the five psychiatrists who testified at her competency hearing yesterday conducted tests according to that protocol, or that there is any intention of anyone connected with the court, not the prosecutors, not the FBI, not the judge, nor the defense counsel, nor any psychiatrists or anyone else, to follow through and determine, in a standard method used to begin investigation of the victim in case of an allegation of torture, whether or not Aafia Siddiqui has, in fact, been incarcerated or tortured.

Because determination of this fact is distinctly not part of the case, the case is allowed to stand in for others, and behaviors get interpreted as they are not. To begin with, although Aafia Siddiqui was for nearly 5 years the only woman on the al Qaeda top ten wanted list, she is not charged with any crime related to terrorism, the "war on terror", al Qaeda, or even the plot for which she was put on that list. She can't be. Any case that did consider the plot, supposedly a plot to cripple the nation's energy infrastructure by blowing up gas stations, would need to consider where that plot came from. But using that plot in court requires a discussion of how the information of the plot came to be known, and that implies dealing with information obtained from Khalid Sheikh Mohammad, which, since February, definitively involves torture and black sites. So the plot is only mentioned in reference -- only in the complaint and not in the actual charges does any reference to terrorist plots occur, and only in a document supplied to the judge by the prosecutor, asking the judge to consider the case as being linked to that of Uzair Paracha is her relationship to the actual plot participants mentioned.

Detailing how the information was obtained would pinpoint when it was that the manhunt for Aafia Siddiqui began, and that would lead to consideration of when she disappeared, March 29, 2003, a few weeks after Khalid Sheikh Mohammad was captured and rendered to a black site for torture. Since the prosecution psychiatrists testified that Ms. Siddiqui told them she was back and forth from Afghanistan to Pakistan during the intervening years, again we are stuck with a choice: We can believe the words of this woman as sane and fit for trial, and believe her statement of whereabouts to the psychiatrist and the FBI, and then we will have to believe that the FBI could not find one of the ten most wanted persons in the world, and the Pakistani ISI and military had no idea of her whereabouts, while she worked at a college in Karachi. Or her ex-husband, who contends the family secretly kept her around Karachi to maintain the fiction that she'd been disappeared. Does he also dispute FBI information that she had re-married? That information was also taken from Khalid Sheikh Mohammad, so maybe he does. Or we can believe what she has consistently, along with her family, told others for at least a year, which is that she was abducted on March 29, 2003 by agents and incarcerated, while she was on the way to the train station in Karachi. Take your choice. And remember, this is someone the FBI contends will say anything to anybody in order to secure her freedom.

Next, we can believe that she was picked up with handwritten notes on July 18, 2008, detailing biological and chemical WMD attacks in the New York area. The defense psychologist has argued that the notes prove she is delusional. They detail all sorts of theories on how to create germ weapons -- crazy theories -- going after only people who eat chicken, creating a germ that only attacks adults and not children. They are crazy because she has an undergraduate degree in biology, and a Ph.D. in neuroscience, and knew more than that about germs. When did she write these notes? Many believe that she was under U.S. control at the beginning of July, 2008. That was when Yvonne Riddley and Moazzam Begg began making noises about Prisoner 650, the Grey Lady of Bagram. Pressure grew when Imran Khan and Amina Masood Janjua joined the chorus, and then British Lord Nazim Ahmed, resulting in identifying Aafia Siddiqui with the Grey Lady, to the denials of the American military, which said there had never been a woman prisoner at Bagram. All of which happened before she was taken into custody on July 18, when a shooting occurred.

For this reason, bringing up the subject of whether or not she was incarcerated will bring up whether or not she was left in Ghazni by American or Afghan authorities to be found or killed. In which case did she write the notes in prison, or on the street corner where she was found? Because the Governor of Ghazni contends she was in pitiful condition when found, he photographed her in the famous shot that has had people contending she looks malnourished and abused. The FBI should remember to ask him if she had a pen, and how old the notes were.

Which brings us up to the circumstances of her arrest. It was convenient for Larry Neumeister to write his pieces in twos after her court hearing yesterday. The first, shorter pieces, went out on the wire, where news agencies the world over were waiting for news of the case, and quickly found their way into print in Pakistan and elsewhere. They mysteriously neglected to mention she'd been shot. That came in the follow ups, the more complete articles, after many papers went to print elsewhere in the world. But that's the case. And the FBI and CIA, and all U.S. officials contend they had no idea where she was until the day they came to interrogate her -- the day she was shot, July 18, 2008. But they also contend she was a "'treasure trove' of information on al Qaeda". She was shot and flown to Bagram hospital, where she underwent surgery, which had her still weak from bleeding and infection on her first court date in early August. During the time she was in the hospital, she was restrained, she was in a brightly lit room, and there was an FBI agent there the entire time. After that, she was on the plane, where the FBI again contends she was coherent and talkative, and then in Brooklyn MDC.

So let's talk again about torture. In the small. What was her treatment during those two weeks when she had the only opportunity, according to the FBI timeline, to be a "treasure trove" of information about al Qaeda? And was she then sane during that time? Then why the incoherent, crazy notes at the time of arrest? And what of the arrest? The Ghazni police had contended that she did not grab a gun and fire, that she only approached the Americans, to complain about her treatment in Afghan custody, and they panicked and shot. The Governor of Ghazni did not consider her to be dangerous, his assistant was shown in pictures he took (including the famous one) trying to get her to remove her burqa. He served tea to her and to her son on a couch at his residence. He took a picture of her, which her husband, in some of the same story the psychiatrist relied on to corroborate her whereabouts before 2008, contends was taken after a domestic dispute in Boston. It would seem that her husband's testimony is being relied on only because it makes investigation of the allegation of detention and torture unnecessary, and that Leslie Powers believes it because she can change her testimony to one of malingering from one of 'depressive psychosis'.

Is A Justice System that Systematically Avoids Torture Mentally Competent?

The effort that is being expended to prevent so much as one verdict of torture in the United States is incredible. In this particular case, it is distorting everything about the case. In the related case in Pakistan, the Pakistani government has been ordered to provide for Aafia Siddiqui's defense, negotiate her return to Pakistan with the U.S., and to determine the whereabouts of her children. Oh, yeah, the children. The eldest of those children has spoken in an interview and recalls being moved about, being incarcerated, and being shackled. Perhaps he and his mother, and his family, and Moazzam Begg, Binyam Mohamed, Nazir Ahmed, and others are just collectively hallucinating the incarceration. Perhaps they are all delusional. Except that the number one supposedly delusional person in all this is the very one that the U.S. government contends is sane. Because otherwise they might have to explain how she got that way. So she is 100% sane, but her 'outbursts' in court are delusional. And torture as a word, as a deed that should require investigation, has been banned from all American courts. And extreme isolation, which has a collection of symptoms three of which are exhibited by behavior corroborated both by the characterization of her court appearance and by psychiatrists for both prosecution and defense, is not a candidate for those symptoms no matter what the law of parsimony might say.

Or even if the outbursts from the FBI, the CIA, the President, the court psychiatrists, and everyone else sound delusional and 'rambling. Binyam Mohamed will eventually get his pictures, I have no doubt that the ACLU and Clive Stafford Smith will make sure of that. As for Aafia Siddiqui, the only child whose whereabouts is known is in Pakistan, while her defense and prosecution lawyers decide which kind of incarceration to put her in for the rest of her life. Of course she chose to speak out in court, no matter what she sounded like, no matter what people thought. Anything else would have been a Sophie's choice. And the government and her lawyers should recognize that, and do what they can to re-establish the rule of law in District Court. Until they bring torture into a court room in the United States, perhaps it is the government which is not competent for trial.

Update:

Benjamin Weiser of the New York Times has got a hold of a letter written by Aafia Siddiqui that the court released after the hearing. Since the letter is marked by the author as personal and confidential and not for the public, it is strange that it should be released by the court, even stranger that this is the sole piece of primary material made available to the public by the press and the court from this hearing. Mr. Weiser characterizes it as a rambling screed against the Zionists/Jews. To be frank, the letter is anti-Semitic, blaming the conflict between America and individuals and countries in the Muslim world entirely on Israel and the Jews, and asserting that "history repeats". But why is no mention made of the long paragraphs opposing war, or the part that reads (after blaming most everything on Israel and the Jews),

...of the kind that are kidnapping people from overseas with children and even babies!), torturing them directly and using their little children as a tool of torture -- or -- simply brainwashing simple-minded youth by pretending to be religious scholars and giving anti-American verdicts...all this in an attempt to make them say/do/write something that can be used to foment war between the US and their otherwise allies (such as the people of Pakistan and most other Muslim countries in the middle-east)...This is true! I am a first-hand witness/victim to this horrible game! It is the sheer favor of my and your GOD, and none other, that I am still "around" and able to write this.

Anti-Semitism is not evidence of attempted murder, nor justification for torture. So while it is certainly true that it is offensive, Mr. Weiser does a disservice to the truth to fail to point out that it is the anti-Semitic and conspiracy theory tone of the letter, and only that, which makes it seem at all insane. If that were the case, there are plenty of people on the internet who fit both those criteria. And paranoia and dread of conspiracies are, as well, on Dr. Grassian's list of symptoms of extreme isolation (along with hallucinations, poor impulse control, and oversensitivity to stimuli). And while Ms. Siddiqui's comments are being cherry picked for all that might offend, in the center of the letter is the allegation, still unanswered by either the government or by news organizations like the one Mr. Weiser works for, that Aafia Siddiqui was kidnapped and tortured by threatening or hurting her children.