Due process denied to Aafia

Clive Stafford Smith

THE DPM appears to believe that any kind of a trial is “due process,” so that if the government (whether of the US or Pakistan) allows some unfortunate person (whether Imran Khan or Aafia Siddiqui) something that appears to pass as a “trial” then that does the job.

This is not the case. The term “due process” is the procedure that is “due” to someone who the government wants to lock up or execute. In a prosecution in the U.S. most of these rights are specifically identified in the Sixth Amendment, but there is a catch-all “Due Process Clause” in both the Fifth and Fourteenth Amendments.

In Aafia’s case, then, at least the following ten rights were “due” to her, yet were not respected: An “impartial jury”: this was denied by using a jury less than one mile from “Ground Zero” in New York, while falsely saying (without evidence) that Aafia was somehow linked to Al Qaida, the terrorists responsible for destroying the World Trade Center.

A jury “of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law”: this was denied by holding the trial for an alleged attempted murder in Ghazni, Afghanistan, in New York, USA, which is 7,475 miles away. Notice-“to be informed of the nature and cause of the accusation”: this was denied because Aafia was never told what “terrorist” crime she was meant to have committed yet this was the main reason her sentence was ratcheted up from about 10 years to 86. Confront or challenge witnesses (“to be confronted with the witnesses”): again a great deal of illegal gossip suggestions were leveled against her without the witnesses coming to testify under oath.

Compulsory process for obtaining witnesses in her favo r: she did not have the right to subpoena people from Afghanistan and thus she had no witnesses who appeared for her. The Effective Assistance of Counsel for her defence: Aafia was forced to have counsel who she did not want, paid for by Pakistan. Because actions in Ghazni were tried in New York, her lawyers did not do a meaningful investigation and their conflict meant did not seek to prove that the entity that had paid their salaries was ultimately behind her original abduction.

Beyond this, the Fifth and Fourteenth Amendments add: The right to be present at your own trial: Aafia was not present for large parts of her own trial, because to appear she would have had to have undergone demeaning searches, where she would have been stripped naked. The right to exculpatory evidence: Aafia was not given basic information in a timely manner, including the video that showed the “bullet holes” in the wall of the room where she was shot could not have been made by her as they were there before the shooting occurred. This would have disproved the central theme of the prosecution case.

The CIA lied to the court and Aafia in refusing to admit that they had kidnapped her and her children, and had been holding her for 5 years. If this had been admitted, Aafia – as a kidnap victim – would anyway have been entitled to shoot anyone who was holding her. (In truth, she did not fire a gun at anyone, but it would have rendered the entire prosecution theory irrelevant.)

The right not to be held in prison when innocent: this should not be a contentious issue. The right not to be tortured: likewise, this is fundamental to the notion of due process. We hope this clarifies the state of the law for the DPM so that he can consider his mission in the US carefully. His job is to advocate strongly for Aafia’s release, rather than to tell the Americans that both she and Imran Khan have enjoyed due process.

—The writer is the lawyer of Aafiya Siddiqui, based in the US.