For the latest news and updates regarding Dr. Aafia Siddiqui's case, please check out this link: http://aafiamovement.com/


 THE PEACE THRU JUSTICE FOUNDATION

11006 Veirs Mill Rd, STE L-15, PMB 298

Silver Spring, MD. 20902

 

 

 

 

SHAWWAL 1431 A.H.

(September 29, 2010)

 

 

Assalaamu Alaikum (Greetings of Peace):

 

On the morning of Thursday, September 23, 2010, Dr. Aafia Siddiqui was sentenced to 86 years of imprisonment by a federal judge in New York City. The sentence imposed by U.S. District Judge Richard M. Berman came as no surprise to this writer. I expected the sentence to be harsh; that is precisely why in the months leading up to this fateful day, we spoke about the need for a mass mobilization at the courthouse.

 

After Aafia’s unjust conviction in February of this year (following a two week kangaroo court proceeding) we instinctively knew that we needed to send a message to the government, because the die had already been cast in the U.S. Judiciary. Judge Berman would follow a predetermined script which would result in a life sentence for a woman already put through 7 ½ years of pure living hell.

 

If anything surprised me it was how clumsy and inept Judge Berman appeared to be in following the script. He really exposed much of the corrupting rot within America’s judicial system, revealing, in a very profound way, the extent to which America has become a nation of laws without justice!

 

What follows is a summary of the notes taken by this observer at the September 23rd sentencing.

 

El-Hajj Mauri’ Saalakhan

 

---------------------------

 

The Sentencing of Dr. Aafia Siddiqui

 

Notes from September 23rd

 

Judge Berman began by walking the court through the accepted facts of the case. He noted, among other things, that it has never been definitively established why Aafia was in Afghanistan in July 2008. As he proceeded to outline the differing points of speculation as to why she may have been there, he failed to even mention the possibility that she may have been kidnapped and taken there! (I found this deliberate omission glaring to say the least!)

 

Berman spoke about the 2 lbs of sodium cyanide and the documents in English and Urdu outlining U.S. targets, and the means to conduct terrorist attacks, that Aafia was allegedly carrying in the bag that she had with her. (A bag that Aafia testified during the trial was given to her when she was briefly released in Afghanistan, in a severely weakened and disheveled state by her captors, after five years of secret and torturous imprisonment.) 

 

There were a number of issues raised and statements made during the proceeding that generated many more questions for this observer.

 

According to the government, Aafia twice attempted to escape from Afghan custody; she had incriminating terrorism-related items in her possession, and yet she was permitted to remain unrestrained behind a curtain in a room of a police compound. Why? Does this scenario even make sense from a security standpoint?

 

Judge Berman made repeated references to Aafia’s mental state – acknowledging the damage done to her psyche when it suited him to do so; and ignoring the damage done when it didn’t. He also noted the frequent security searches that Aafia objected to during the time she was in New York’s custody awaiting trial.

 

The “security searches,” as he termed them, were the strip searches (which also included a cavity search) that this woman – already in maximum security confinement – was made to endure each time she was moved from one point to another for any reason! This treatment alone is severely damaging to the psyche of any modest woman – but especially for a hijab observing Muslim woman.

 

Berman stated that the jury convicted Aafia of all seven counts in the indictment; that Aafia articulated her belief during the trial that Israel was behind the attacks of 9/11; and that one of the employees at the Brooklyn detention center (where she was being held) was conspiring against America. Berman also accused Aafia’s oldest son (Ahmed) of making  contradictory statements since his release; he noted that Aafia’s former husband (Mohamed Amjed Khan) claimed to have seen her on a number of occasions, in passing, during the time of her disappearance; and reiterated the point that there was “insufficient evidence in the record” to determine where she was between 2003-2008. (A process that he, at the government’s request no doubt, helped to facilitate.)

 

Berman asserted that Aafia came into contact with radical elements while in Boston, according to the testimony of a professor whose name I didn’t get. He noted how “complicated” the case had been, and referenced an incident during the trial that resulted in his decision to excuse a juror from the case who felt threatened by a conspicuously attired observer in the courtroom - an observer who made threatening and disruptive gestures before being removed by U.S Marshalls.

 

Many of us in attendance that day felt that this unknown person (who despite his arrest? was never identified in media reports) may have been a plant of the government, whose sole purpose was to sow additional prejudice in the collective mind of the jury against the defendant in the dock. We also felt this way about the theatrics of one of the government’s witnesses (a soldier who took the stand during the trial). I believe that may have been Captain Robert Snyder.

 

The defense attorney, Dawn M. Cardi, began by stating she respectfully disagreed with Judge Berman’s recitation of the so-called “facts” surrounding this case. She noted how she had to get top secret clearance – a very time consuming and cumbersome process - to be able to have access to certain “top secret” documents; only to later be told, “there is no classified evidence relevant to this case!”

 

Cardi argued that Aafia suffered from “mental illness” and “diminished capacity” – and, according to one of the experts at Carswell, where she spent the first few months of her return to the U.S. receiving medical treatment and psychological evaluations - she was possibly schizophrenic.

 

She also argued that while the government has repeatedly used Aafia’s academic major as an indication of the potential threat she posed to America, Aafia was not a “biologist.” Her academic focus, as reflected in the title of her thesis, was on how children learn. She also noted that the jury found Aafia not guilty on “premeditation” (a finding that Judge Berman deliberately chose to ignore).

 

Cardi also noted the Wiki-leaks reference to Dr. Siddiqui, and that according to these documents, Aafia was reportedly reaching for the gun (M4 rifle) when she was shot! In referencing the judge’s assertion that, “There is no question about the jury’s verdict,” Cardi insisted that there were indeed questions about the verdict. She spoke about the manipulation of fear, and asked for as maximum sentence of 12 years without the enhancements.

 

The government’s closing arguments could be summed up in the words of lead prosecutor, Assistant U.S. Attorney Christopher LaVigne (who stated, in the government’s successful pursuit of a Life sentence):  “Any fear that was injected in this courtroom came from witnesses like Captain Robert Snyder of the United States army…looking down the barrel of a loaded gun and believing he would die… This [Aafia’s alleged assault on U.S. personnel] was not some random act. On that day the bottom line is, she saw her chance and she took it.”

 

(In my humble opinion, this narrative was successful - despite all of the contradictory material evidence and testimony in Aafia’s favor - for three reasons: (a) the way this case was consistently portrayed in the mainstream media; (b) the court’s decision to bar certain exculpatory testimony that could have proved Aafia’s innocence; (c) and the failure of Aafia’s well paid defense team to vigorously put on the type of defense that a political trial of this nature required!)

 

 

Aafia’s defense kept emphasizing mental illness, and at one point Judge Berman interrupted (and in his own manipulation of this argument) alternately raised doubts about the severity of Aafia’s mental state, and then raised doubts about the prospect of Aafia getting any better.

 

Aafia flatly rejected the mental illness defense, defiantly stating in a strong, clear voice: “I am not paranoid. I am not mentally sick, I disagree with that!

 

(For the record, while there is no question that serious damage has been done to our sister’s psyche, I personally believe Aafia Siddiqui is very, very sane – in a morbidly insane world!)

And while Berman spoke of how Aafia consistently failed to cooperate with “authorities” – he said nothing about the conditions of confinement which, no doubt, factored into Aafia’s failure to “cooperate.”

 

 

Aafia addresses the court

 

Aafia began by insisting she was not concerned with her own welfare – she is content with the qadr (or will of God), and that she is not being tortured. She did not say she was never tortured; she said she was not being tortured at present.

 

(This is an important distinction for those of us who have followed this case closely. Who are aware that Aafia was tortured when she was secretly held; and are equally aware that, at minimum, Aafia has been imprisoned in the U.S., for the past two plus years, under conditions that clearly violate our nation’s constitutional guarantee against “cruel and unusual punishment.”)

 

Aafia accused someone by the name of Mr. Desmond (I believe) of plotting against the United States. (This may have been a sign of mental unbalance. ALLAH knows best.)

 

She again referenced the “secret prison(s)” that she had previously been held within; a secret imprisonment that the U.S. government adamantly refuses to acknowledge.

 

Aafia spoke about terrorists who were masquerading as Hispanics to do America harm, and of how DNA testing can be done to determine the “pedigree” of a person. She also spoke about not being against all Israelis, but that there is an element among them that are blameworthy.

 

She noted at one point, in a rather light-hearted way, that most of the teeth in her mouth were not her own, because of the beatings she endured while she was secretly held. She also noted how one of her doctors had initially diagnosed Post Traumatic Stress Disorder (PTSD), but how she was then pressured into saying otherwise – i.e. that Aafia was schizophrenic.

 

Aafia testified to how – before being brought to the U.S. - she would regurgitate to the FBI the things that she thought they wanted to hear (a mind “game” she called it), in the belief that by doing so she would be able to get her children back. She passionately emphasized that she is against all wars!

 

She spoke about a dream she had involving Prophet Mohammed (peace be upon him), and she advised the Taliban to put mercy in their hearts. She referenced [British journalist] Yvonne Ridley’s capture and subsequent voluntary conversion. She said in her dream she saw the Prophet enter a room with American soldiers who were captives of war. The Prophet (pbuh) spoke consoling words to them. Her advice to Muslims was to not hate American soldiers.

 

She also (curiously for this writer) spoke about Israeli-Americans who had her daughter for years and never raped her. When she said this I wondered if this was something she had been told, or was this a conclusion that she had come to as a sort of psychological coping mechanism? (Surely ALLAH know best.)

 

Moments later Aafia’s voice broke – and I know that many within the main and overflow courtrooms choked up – when she touched briefly upon the anguish experienced by a mother who doesn’t know where her children are.

 

 

Judge Berman Rules (or so he thinks)

 

Berman proceeded to outline the reasoning behind the barbaric sentence he was about to impose on Dr. Aafia Siddiqui. At the heart of his thinking was his stated belief that rehabilitation for Aafia was virtually impossible, as he proceeded to impose “enhancements” that would significantly magnify her sentence.

 

1.      He found that the “hate crime enhancement” applied due to the national origin of Aafia’s alleged victims (U.S. personnel).

2.       He found that the “official victim enhancement” applied because the alleged intended victims were government officials.

3.      He found that the “terrorism enhancement” applied because the alleged offense was intended to influence or punish the government. (Keep in mind, Aafia was not officially charged with even one terrorism count in the indictment; and yet she received a terrorism enhancement! Berman feebly argued that the defendant’s purpose or intent factors into the equation.)

4.      He also found that a “criminal history enhancement” applied in the case. (I’m still trying to figure out his twisted rationalization behind that one.)

5.      He also found that an “obstruction of justice enhancement” applied, because Aafia gave (in his view) false testimony during the trial.

6.      Berman also found Aafia guilty of “premeditation,” based on the claim that when Aafia allegedly fired the M4 rifle at the agents and soldiers in 2008, she screamed, ‘I want to kill Americans,’ and ‘Death to America!’

 

Later, in an attempt to make it appear that he was truly wrestling with what would constitute the appropriate sentence for Aafia Siddiqui, he rhetorically asked: Do we sentence concurrently or consecutively?

 

In truth, Judge Berman exemplified nothing more than soft-spoken, anti-Muslim, pro-prosecution bigotry; bringing to mind (for this observer) one of the caustic assessments that the late NY State Supreme Court Justice Bruce Wright made about some of his fellow jurists on the bench. (As he termed it, Black Robes, White Justice)

 

At one point there was a rather embarrassing moment for Judge Berman, when in response to his deliberation over the issue of whether or not Aafia fired the M4 rifle, one of the prosecutors stood up to say the jury did not find that Aafia fired a weapon. The judge than clumsily remarked that he found that she did.

 

After being hit with what constitutes a mandatory life sentence (86 years), Dr. Aafia Siddiqui was the embodiment of faith and grace. She again partially turned toward the witnesses in the courtroom seated behind her, and counseled the Muslims to not become “emotional.”

 

At one point Aafia addressed the judge’s bias at the conclusion of the trial (when he charged, or instructed the empanelled jury before their deliberations). She reminded him of how he had emphasized to the jury that if they found that there was a gun in the room that Aafia potentially had access to, that they had to find her guilty on that particular gun related count.

 

What came next – from a mindset of forgiveness and mercy – would contrast sharply with the poor excuse for a “judge,” who presumed to preside over her fate. Aafia was clearly in a much better place, mentally and spiritually, than were Judge Richard Berman and his fellow persecutors, in that regrettable process euphemistically called a court of law.

 

After Berman pronounced his sentence a woman in the main courtroom, whose voice sounded familiar, hollered SHAME! SHAME! SHAME ON THIS COURT! (I was in an overflow courtroom observing the proceedings over a video monitor) I later learned that the voice – which was then threatened with removal from the court – belonged to a committed friend, Sara Flounders, of the International Action Center.

 

Judge Berman than expressed his concern about the absence of any psychological road map to assist Aafia in her mental health challenges; while already having expressed his belief that: (a) she really wasn’t that mentally unbalanced; and (b) even if she was, therapy “would be to no avail” anyway, because she had not been cooperative in the past. (As noted earlier, Judge Berman alternately accepted or rejected the prospect of mental illness whenever it suited his argument of the moment.)

 

What then followed became a lesson in faith and spiritual perseverance. Aafia counseled those present, and those who would get the news later, not to be angry at anyone involved in this case – not even the judge!

 

“This will shock the Muslims: I love America too…I love the whole world...”

 

“I am one person, and the Prophet Mohammed, peace be upon him, forgave all of his personal enemies. Forgive everybody in my case, please…the world is full of injustices…and also forgive Judge Berman.”

 

“I don’t want any bloodshed…I want peace and to end all wars.”

 

This was some of the nasiha (sincerely-given advice/counsel) offered by this incredible, long suffering, 38 year old Muslim woman. Berman feebly expressed his gratitude for Aafia’s good wishes, and said he wished all defendants were like her. (Can you believe this?)

 

When Judge Berman informed the defendant of her right to appeal his verdict, Aafia’s response was: “I appeal to God…and he hears me.”

 

 

A few closing thoughts of a personal nature

 

I left that federal courthouse in New York feeling like I had witnessed something truly amazing. Despite the anticipated outcome, I felt inspired, and that a tremendous weight had been lifted off of me. It had just recently come to my attention earlier that same week how much anger I had been carrying around inside of me because of this case (and many others like it).

 

That same week, following a reception with Iranian President Ahmedinejad in New York City, I verbally lashed out at a Muslim leader for his attempt at defending the indefensible. In that moment I felt nothing but contempt for him and others like him. (“Leaders” and “Major Muslim Organizations” who failed to issue even ONE press release, or community alert, in defense and support of a sister like Aafia Siddiqui!)

 

In those moments, outside of that New York City hotel, all of the disappointments and indignities that I had been forced to endure over the past two years (over this one case) came flooding over me; the doors that were slammed in my face; the back-biting emanating from “leaders” within my own community; the very personal assaults that were made through my family; the sleepless nights; the moments of isolation; the counterproductive efforts that were sometimes made to prevent much needed material resource from coming our way – all of this came flooding over me as this brother attempted to make me feel as if I was wrong for putting undo pressure on him and his fellow play it safe procrastinators.

 

I was so angry that I felt like I could hit this brother; and then after we left each other I felt ill (I felt physically ill) for a while. As I calmed down, I remembered something that President Ahmedinejad had said in his closing remarks to all of the Muslim leaders assembled before him: “They want to make us angry…Don’t let them make you angry.”

 

It was then, in that moment, that I realized it wasn’t just Aafia Siddiqui. The anger I felt, the anger that had reached a boiling point with this particular case (involving this sister), is an anger that had been building up for years! It was a volcanic accumulation of all of the pain, tears, anger and frustration that I had been exposed to (and often-times experienced) going back many years. Aafia Siddiqui’s case was simply the one that brought it all to a head.

 

Later that night, I pleaded with Almighty ALLAH (The Beneficent, The Merciful) to help me deal with that internalized rage…and a few days later, ALLAH answered my prayer.

Thank you Aafia.

 

The writer serves as Director of Operations for The Peace Thru Justice Foundation

 

 

 

THE TWO SENTENCINGS OF AAFIA SIDDIQUI

By Steve Downs

On Thursday September 23, 2010, members of Project SALAM went to New York City to witness the sentencing of Aafia Siddiqui.  For those of you not familiar with the Aafia Siddiqui case here is a brief summary.  In 2003, Aafia, a graduate of MIT and a Brandeis University with a PhD, returned to her home country of Pakistan with her three young children.  According to her family, Aafia and the three children were soon afterwards kidnapped off the streets of Karachi by Pakistani forces.  Some reports indicated that she was turned over to the Americans who tortured her for 5 years at Bagram Air Force base in Afghanistan.  (The three children also disappeared during this time.  The two oldest have since reappeared under somewhat mysterious circumstances but the youngest, Suleiman, is presumed dead). The American government has officially claimed that it had nothing to do with Aafia’s disappearance and had no idea where she was for the missing 5 years, and indeed was looking to question her during this time. The Pakistani government at first issued conflicting reports but at present is denying any responsibility for Aafia’s disappearance.  Aafia’s case has become a huge national issue in Pakistan and large crowds periodically surge through the streets to protest the Pakistani government’s presumed complicity in her disappearance and torture by the Americans. In America there is a virtual media blackout about her case as though the mere mention of it would bring dishonor.

 

In 2008 Yvonne Ridley, a British journalist, published an article reporting that Aafia Siddiqui was prisoner 650 at Bagram where she had been tortured for 5 years.  One week after the publication of the article, Aafia was found wandering dazed around Gazni, Afghanistan, with her oldest child, carrying incriminating bomb making documents.  She was arrested by Afghani forces who made arrangements to turn her over the next day to the Americans for interrogation at a local police station.  The next day a group of armed American soldiers went to the station to interview Aafia, and entered a room with a curtain half way down the middle.  According to the US government, Aafia, unrestrained, suddenly stepped out from behind the curtain, grabbed an AK-47 from one of the soldiers and shot twice at the Americans before she herself was shot twice in the stomach by the Americans.  She almost died, but eventually recovered and was brought to the US where she was tried for attempted murder and assault of the American soldiers.  At the trial it was shown that the two bullet holes in the wall of the room that the US government claimed were made by the errant shots fired by Aafia, in fact contained no bullets, nor were any bullets or shell casings ever recovered from the room, nor were Aafia’s finger prints on the gun, and the holes themselves were already present in a photograph of the room made months before the event in question.  Notwithstanding the complete lack of any forensic evidence to support the testimony of the American soldiers in the room, Aafia was convicted of Attempted Murder (3 Charges), Assault (3 Charges) and Discharging a Gun During the Commission of  a Crime of Violence (1 Charge), but the jury specified that the seven crimes were “unpremeditated”.  We were now attending Aafia’s sentencing for these crimes.

 

Judge Berman’s Opening Remarks 

The presiding Justice, Judge Berman, quickly dispelled any possibility that he might show leniency to Aafia.  He stated that for 5 years, between 2003 and 2008, there was no competent evidence in the record to indicate where Aafia was located.  He commented on various “speculations” – that she was looking for her husband (who is now being held at Guantanamo), or was working with Al-Qaeda – but conveniently forgot to mention the most commonly discussed “speculation” – that she was being held at Bagram Air Force Base, or was held in some other form of detention by the Americans and the Pakistanis where she was tortured.  By omitting this “speculation” he signaled that he was supporting the government line that America knew nothing about Aafia’s 5 year disappearance. (It was unclear whether the defense counsel ever tried to present evidence about the missing 5 year period and whether they were refused by the Court).

Judge Berman also signaled in his opening remarks that he understood his sentencing decision had serious international ramifications.  He began by claiming that no foreign journalists had been excluded from the trial, with the exception of a tiny little misunderstanding at the beginning of the trial which had lasted for no more than a day and a half. What in fact happened was that court security policy had excluded all foreign or independent journalists from the trial unless they obtained NYC press credentials, which was all but impossible for them to obtain under established criteria.  Our journalist friend, Petra Bartosiewicz, complained about the exclusion.  The US government suddenly realized that it was faced with a foreign policy disaster in which foreign journalists would be excluded from a case involving America’s closest “friend” in the war on terror in which the Pakistani government was accused of being complicit in the arrest and torture of a woman that the Pakistani people were now proclaiming to be the “Mother of Pakistan”.  Governments could fall over this.  The ban on foreign journalists was abruptly reversed.

 

The Lawyers Arguments

After summarizing the history of the case, Judge Berman allowed the defense to make its arguments.  Aafia’s lawyer took the position that Aafia was an “enigma”, and it was hard to know what to think about her mental state.  The lawyer said that nobody had established during the trial where Aafia was during the “missing 5 year period”.  She complained that as a lawyer she had gone through the long process of obtaining security clearance and then the government refused to give her any classified information to throw light on where Aafia was located during this time.  But she said the CIA knew where Aafia was held.  The government knew and it would come out eventually.  (Judge Berman later asked the government to comment on the defense attorney’s argument that the government knew where Aafia was during the missing 5 years, obviously hoping that the government would deny that the government had any knowledge.  The prosecutor however, dodged the question.  He could hardly acknowledge that information about Aafia’s disappearance was classified since that would imply that the US government knew where she had been during the missing 5 year period, so he gave a non-responsive answer that was the equivalent of “Sure Judge, whatever you say”.  Judge Berman did not press the point.)

The defense attorney then went on to describe Aafia as mentally unstable and probably suffering from schizophrenia.  She described much of Aafia’s communications as disorganized and delusional and said that she had been in a downward spiral for a number of years.  She described Aafia as having been picked up in Gazni, Afghanistan by the Afghanis while on some sort of self appointed mission to the Taliban with confused illogical bomb making documents in her bag, and that the poor quality and confused logic of the documents showed how deranged she was.  When Aafia was taken to the Americans, the lawyer asserted, Aafia, in her confused condition, became terrified that the Americans would hurt her or her children and tried to escape by grabbing at a gun.  But this was just a panicked reaction from someone who was suffering from a mental illness.

Judge Berman noted that even if Aafia was suffering from a mental disease, nobody had proposed any way to treat it, and in any event Aafia refused to cooperate with her psychiatrists so there was no point in trying to treat her, even if a way could be found.  Protection of society required that she be locked up.  The attorney countered that one small panicky reaction with an AK-47 was hardly a basis to conclude that she could never be treated successfully and that to condemn her to life imprisonment on this basis was illogical.

The Prosecuting Attorney then argued that Aafia was not mentally incompetent but simply hated Americans and wanted to kill them.  The most notable feature of his argument was his apparent refusal to say that Aafia had shot the gun.  He described how terrorized the soldiers were at having an AK-47 pointed at them but he repeatedly declined to say anything about whether the gun was fired.  When Judge Berman noted that some of the soldiers described the gun as having been fired, the prosecutor commented that they “thought” the gun had been fired.  And at the end the Judge noted that just recently on Wikileaks, a document from the “initial” investigation had been leaked (which had not been turned over to the defense during discovery), and which indicated that as Aafia reached for the gun, one of the soldiers shot her before she could get it.  Although this was a critical point in sentencing, (there is obviously a big difference in an attempted murder charge between reaching for a gun which you cannot get, and actually firing a gun), the judge waived off this issue.  At one point, almost reluctantly he said that in his opinion she fired the gun, notwithstanding the absence of any forensic evidence to support this conclusion, as though to imply that reasonable people could disagree about the issue.  One of the charges for which she was convicted by the jury was “Discharge of a Firearm During a Crime of Violence” and as to this crime, unlike all the others, the government asked for the minimum sentence of 10 years instead of the maximum sentence of life.  Again it suggested that the government recognized that there was no forensic evidence that Aafia had shot the gun and was trying to downplay the significance of this charge.

At this point (and at several points later), Aafia broke in and asked to make a statement.  Judge Berman treated her with considerable courtesy and said she could make a statement now and later and allowed her a considerable amount of latitude in saying whatever she wanted to say.  I will end with a summary of the various things that Aafia said because that was the highlight of the proceeding. 

 

Judge Berman’s Sentencing Calculations

Before summarizing Aafia’s statements, I want to describe the sentencing calculations that Judge Berman then performed and which took up most of the proceeding.  Sentencing calculations in Federal Court, especially in terrorism-related cases, have become so complicated, illogical and divorced from reality that most judges begin with an apology to the public for what they are about to.  Judge Berman, perhaps with an eye to the international aspects of the case, was no exception.  He (through a clerk) even provided some sentencing charts for the public so they could follow what he was trying to explain. 

The basic problem comes from an effort some years ago by Congress to make all sentencing equal.   Congress at one point imposed mandatory “guidelines” in sentencing that all judges were required to follow in order to reduce sentencing “disparity”.  Then at the urging of certain right wing elements Congress began adding “enhancements” to the basic guidelines when certain facts were present (such as the discharge of a firearm for example) which would increase the length of the basic sentence. Eventually so many enhancements were added and the guidelines became so harsh that they were requiring the maximum sentence in a large number of cases.  However, the guidelines were not the most important determinant of sentences.  Even though, for example, the “mandatory” guidelines might require a very harsh sentence like several life sentences, a judge could not legally sentence a defendant to more than the statutory maximum.  If the statutory maximum was only five years, the defendant could not be given more than the maximum of 5 years, even if the guidelines required two life sentences. 

Another problem became apparent as the guidelines became harsher.  Sentencing was impacting the middle and upper classes.  Businessmen and politicians were required to be sentenced as though they were robbers and thugs.  So the Supreme Court in the Booker case declared that the guidelines were only guidelines.  Judges had to calculate them but were not required to follow them.  If, however, a judge decided to deviate from them the judge had to explain why.

In writing his decision Judge Berman had to negotiate between several opposing forces.  On an international level, the US and Pakistani government presumably wanted to have Aafia locked up for life so everyone would forget about her.  These governments also presumably wanted a decision that left no doubt as to her guilt in attacking US soldiers.  Moreover they probably wanted to have her international cult status blunted by a finding that she was insane.  It is hard to rally an international cause around insanity even though a finding of insanity would be legally inconsistent with a finding of guilt.  Judge Berman struggled to achieve these objectives.  He could not go too far in finding Aafia insane because then he would undermine his decision prior to trial that she was mentally competent to stand trial, and undermine the jury’s decision that she was guilty of the crimes charged.  Judge Berman resolved these conflicts by noting the split among the experts at the earlier competency hearing as to whether Aafia had a mental illness or was malingering. And while he said that nobody on the defense team had suggested how she could be treated for her mental illness, he stopped short of finding that she was actually mentally ill.  Mental disease was suggested, repeatedly talked about, and analyzed, but never actually found.

With respect to the guidelines, the government had asked Judge Berman to find the basic crime to be Attempted Murder (Premeditated) notwithstanding that the jury had specifically found the crime to be “unpremeditated”.  To this basic level, the government wanted the court to impose enhancements for “Hate Crime”, “Official Victim”, “Terrorism”, and “Obstruction of Justice” for a total of life plus 10 years.  The defense by contrast, wanted the judge to start with a basic crime of Attempted Murder (Unpremeditated) and to find no enhancements (for a total of about 14 years) on the grounds that if the crime was unpremeditated as the jury found, then how could it be a “hate crime” or an intentional attack on an “official victim”, or and intentional “obstruction of justice”; Aafia’s crime, according to the defense was just the panicked reaction of a woman under a psychological delusion that being turned over to the Americans would result in harm to her or her children. (Why she should be acting under such a delusion the defense could not say, since it did not know for sure where she was for the prior 5 years, or under what conditions she was held, assuming that she was held at all.)

Although the jury had found the crime “unpremeditated”, this finding was potentially inconsistent with the enhancements that Judge Berman wanted to impose, and could later result in his decision being criticized as being inconsistent with the jury finding of “unpremeditated”.  So Judge Berman simply set aside the jury finding of “unpremeditated” and found the crimes to be premeditated.  According to the Judge, Aafia knew the day before that she was going to be turned over to the Americans and so had a full day to premeditate her attack.  Strangely it is legal in the 2nd Circuit for a judge sentence a defendant on the basis of conduct for which the defendant was exonerated by a jury.  The injustice of this is obvious but apparently the injustice does not matter to judges looking for any way to increase a sentence.

Judge Berman granted the “hate crime” enhancement because there was testimony that Aafia shouted that she hated Americans and wanted to kill them during her attack.  Judge Berman granted the “official victim” enhancement, because he found that Aafia knew the day before that she was going to be turned over to American officials.  Judge Berman granted the “terrorism” enhancement, because he found that she had bomb making plans with her when she was arrested. The terrorism enhancement not only added many years to the guidelines, but it also altered another factor “Criminal History” which added even more years to the guidelines.

With respect to the Obstruction of Justice enhancement, Judge Berman strained to find that Aafia had lied in her testimony in Court.  Several of the charges involved Aafia “assaulting” soldiers after she was shot.  Supposedly even after Aafia was shot twice in the stomach she continued to struggle with the soldiers and the assault charges were based on this.  By contrast, during her testimony, Aafia had said that once she was shot, her hand and feet went numb and she could not feel them any more.  On this basis Judge Berman decided that she had lied on the stand and so had obstructed justice.  Judge Berman tried to contrast the horror of the soldiers at being assaulted by a tiny woman who had been shot twice in the stomach and then had the gall to testify that she could not feel her hands and feet.  This excessive straining and overreaching to portray the soldiers as victims of assault by a tiny wounded woman in order to justify the Obstruction (lying) enhancement suggested perhaps the pressure Judge Berman was under to smear Aafia’s reputation at the same time as sending her to jail for the longest possible time.

At this point Judge Berman’s guideline calculations required the imposition of one to two life sentences.  (Sorry this is confusing but it is not worthwhile here trying to explain whether it was one or two life sentences or something in between.)  However as we mentioned before, a judge cannot legally sentence a defendant to more than the statutory maximum and none of the seven charges had statutory maximums of more than 20 years (except Charge 4 – Discharge of a Firearm During a Crime of Violence - which had a penalty of 10 years to life and had to be served consecutively with any other charges.  You see now why it was of considerable importance for Judge Berman to decide whether Aafia had in fact fired the gun.).  Had Judge Berman sentenced Aafia to the statutory maximum (plus the minimum10 years on Charge 4 that the government requested), to be served concurrently, her sentence would have been 30 years.  (20 years for charges 1,2,3,5,6,7, and 10 years for charge 4 which by law had to be served consecutively). 30 years is a harsh sentence for grabbing at a rifle, but it would have eventually allowed Aafia some life out of jail.

However, prosecutors had learned how the game is played, and asked that the judge impose all of the sentences to be served consecutively (one after another).  This Judge Berman was only too happy to do.  As a result he sentenced Aafia to 76 years on charges 1,2,3,5,6,7 plus 10 years on charge 4, for a total of 86 years.  Comically, he reduced slightly the sentence on two of the assault charges because the first assault supposedly occurred when a soldier wrestled the gun out of Aafia’s hand.  The judge reasoned that this soldier’s trauma was greater than that of the other two solders who only had to wrestle with a tiny wounded woman with no gun, and so the first assault deserved a greater penalty.  Thus ended the Court’s effort to impose sentence.  (At the very end of the proceeding the court and the prosecutor began debating about how many years of probation Aafia would have to attend when she was release (long after she passed the age of 100) and what kind of drug testing would be required etc.  We left the court at this point as the proceedings appeared to have become completely detached from reality.

 

Aafia’s Statements

At this point we will describe Aafia’s statement (or actually multiple statements) to the court because they were the most astonishing aspect of the proceeding.  In a way they were a separate proceeding.  The court and the lawyers focused their energy on calculating all of the twists and turns in the sentencing law, while Aafia was talking primarily about different matters (the consequences of the sentence) in a different forum (world opinion) and to a different group of people (her supporters including mostly Pakistani’s and Muslims). Aafia appeared in court wrapped in white cloth with only an eye slit, and for much of the proceeding she sat quietly sometimes with her head on the table and sometimes she waived her hands silently around as if to emphasize a point.  When she spoke, it was with a clear, strong voice, at times with a laugh or sense of humor, and she had an ease or command of the unusual situation that suggested she was comfortable in her role.

At the beginning Aafia spoke without notes in a rush, with words and concepts tumbling out only to be interrupted by other thoughts and words until it seemed at times like rambling. However, Aafia seemed aware of this problem and apologized to the court by noting that she did not talked to people often and so it was hard for her to start.  Initially she seemed afraid she would be limited by the court to just a few words and so in her anxiety to deliver her message the words and thoughts came tumbling out all mixed up together.  Later, as she became aware that Judge Berman was not going to rush her and would give her enough time to speak, this anxiety lessened and she spoke in a more organized manner.  At times she mentioned improbable conspiracies and fanciful scientific theories. However, she did not develop these themes to any great extent and they did not seem to have much relevance to the message she was delivering.  Her statements were delivered primarily to Pakistanis and Muslims who had been supporting her.   She was not really addressing the court at all which apparently had ceased to have much significance for her. 

Aafia began her statement with an urgent plea to her followers not to engage in any violence or to take any revenge.  She said that unlike her period of incarceration before, she was now not tortured or in discomfort.  She was aware of many wild charges that were being spread about her by people who did not know her condition; people were saying that she was being tortured or abused and it was not true.  She noted that the Prophet Mohammed had specifically enjoined his followers not to repeat false rumors that could not be verified.  So she begged her supporters not to spread unverified rumors about her that might trigger violence and hatred.  She indicated that in her present state she was content, even happy because she was in the hands of God who protected her.  God had protected her through the shooting in Afghanistan, and through all of her incarcerations and difficulties, and she believed that she was now safe in His love.  She did not need anything else and when it was time for her to be release she would be released.  Until then she was content to be where she was.

Aafia spoke about how at one time she believed that she could bring about peace between the Taliban and the Americans.  Now she thought her time to do this might have passed, but still she pleaded with her supporters to stop the violence and killing and for the Taliban and the Americans to no longer be enemies.  In one of her most moving passages she spoke of the particular agony of mothers whose children are in danger.  Mothers would do anything to save their children and needed to be protected and supported rather than destroyed.  She implied that danger to her children had compelled her to take certain acts but that now that her two oldest children were found alive she was free from this.  Still she hoped that Suleiman, her youngest child, would eventually be found alive.

She denied that she had any mental illness.  She also denied that she had been uncooperative with her psychologists.  She acknowledged that some of the psychologists had pushed her to do or say things that were not true and these people she resisted, but as for the others she had no complaint.  She also stated clearly that during the missing 5 years, she was incarcerated and tortured.  She was not specific about where it happened or by whom, (and perhaps if she arrived blindfolded, she did not know).  But she seemed clear that during the missing 5 years she was held by the American government or the Pakistani government or both.  Thus in denying her mental illness and in asserting that she was detained during the missing 5 years and tortured, she took a position diametrically opposite to the position taken by her own attorneys.

Aafia described a vision that she had received.  In it, Mohammed came to her and led her to a house with many rooms.  In the first room many American soldiers sat on the floor with their hands bound behind their backs like prisoners of war.  Mohammed spoke words of forgiveness and healing to them and the men were released from their bonds.  Then Mohammed went with her into the next room and the same forgiveness and healing restored freedom to the bound prisoners.   She said she had received another vision of being with Jesus.  She said that Muslims might be surprised or even horrified by this, but she begged them to keep an open mind and to not hate people who were followers of Jesus.  They also were good people.

At the end she once again begged her supporters not to extract any vengeance or violence.  She said the greatest gift they could give her was to give her the knowledge that no more violence or killing would occur.  She said that she forgave all the people who had tortured her.  She forgave all the American soldiers. She forgave all the people who had been involved in shooting her and prosecuting her. She even forgave Judge Berman for his (presumably unjust) verdict.  Judge Berman smiled at this and said she had spoken very eloquently and he wished that all prisoners had her attitude.  Aafia’s statements were very moving and many people had tears in their eyes when she finished.

So in effect there were two separate sentencing proceedings.  One in which Judge Berman struggled through a maze of illogical and conflicting laws – suggesting that Aafia was insane but not so insane that she could not have committed her crimes with premeditation (even though the jury found “unpremeditation”) – finding that she deliberately lied to obstruct justice when she testified that on being struck with two bullets she felt her hand and feet go numb – absolving the Americans and Pakistanis of responsibility because there was no credible information in the record to determine where she was during the missing 5 year period (even though Aafia testified at trial and at sentencing that she had been incarcerated and tortured, if not “by” then “through” the agency of the Americans and the Pakistanis) – Judge Berman measuring, always measuring, justice with a broken teaspoon.  And then there was a second sentencing proceeding in which Aafia, now the mother of the world, called on people everywhere to stop the violence, protect mothers and children, forgive everyone who caused injury, and turn to God as the source of all that is needed.  Which of these two sentencing proceedings will endure?  Only time will tell.  

Steve Downs is a retired lawyer and co-founder of Albany, NY, based Project SALAM.

-------------------------------------

Bismillaah, wal-hamdulilaah, was-salaatu was-salaamu 'alaa rasoolillaah,

Assalaamu alaykum wa rahmatuallahi wa barakatuhu

 

 http://www.justiceforaafia.org/articles/articles/649-jfac-coverage-aafia-siddiqui-sentencing-hearing-september-23rd-2010

The Southern District Court of NY 500 Pearl Street Manhattan, NY

Murdiyyah
JFAC Correspondent

To be honest with you, it would be unfair to say I put full attention in note-taking at the times Dr. Aafia took the floor.  Her words always had a way of captivating the audience to the extent that pens would drop to listen to her pearls of wisdom without disturbance of the thought process that takes place during writing.  So I can share with you only what I recall.

Colour-coordinated with the JFAC logo, I arrived in front of 500 Pearl Street ready to see my sister Aafia Siddiqui. A stranger saw my name and smiled, saying how similar it was to Aafia Siddiqui. Over the years, it has become my pride to even possess a name similar to such a prestigious member of society.  So, to my dismay, when I saw the line to enter the courthouse extended far and would take us visitors a long time to finally arrive inside the courtroom, I knew I wouldn’t be able to see her face to face or even in the same room.  Unfortunately I was right; by the time I arrived inside, the initial courtroom where Aafia’s proceeding was taking place was completely packed so we had to make ourselves comfortable in the backup court rooms connected live to Aafia’s sentencing through a projector.

Aafia’s lawyer Dawn Cardi was speaking when I finally sat down. She was talking about the mental stability of Aafia Siddiqui. She spoke about how she had to get security clearance to do her job as a lawyer for Aafia; nevertheless, the security clearance was in no way a permit for her to use top security evidence to defend Aafia’s case. Cardi mentioned how psychiatrists of 20 years study and experience claim Aafia is suffering from schizophrenia, that she is incoherent and suffers from diminished capacity. “Part of it is because she was abused as a spouse” said Cardi. “Her diminished capacity is claimed to have emerged as early on as when she was studying at MIT. This can be proven in her thesis How Children Learn, another incoherent piece,” her lawyer claims. To prove her point, she goes on to say some of the things Aafia has written in random ramblings while in prison were strange and senseless like “only adults get viruses” and how “hand gliders were flying into buildings.” Cardi said “We agree Dr. Aafia is not guilty on premeditation; she didn’t even have the capacity to premeditate. No one has ever believed Aafia was a jihadist.”

Cardi tried to gain the judge’s sympathy, reminding Richard Berman that any woman in Aafia’s position would have been the same way Aafia had been when they found her in Ghazni, “Frightened, possessed, upset and ready to get out of there.”

When it was prosecutor Christopher LaVigne’s turn to talk, he stuttered his way back to the varying testimonies of the US soldiers claiming that their stories were similar; hence, they had to be true. The keyword here is similar. LaVigne and judge Berman claimed that Aafia had no problems with the Afghan army holding her. The moment American soldiers came into the picture, she became “violent and intolerant” out of her “hate for Americans.” This is contrary to the many times Aafia said, “I love America” and “Wouldn’t anyone in my place want to protect our nation and be shocked if they heard anything was going to happen?” She also mentioned how the FBI refused to speak to her, especially during the first three months of her arrest. She spoke about how she lost trust in the officers she would speak to because things they would do afterwards so she started playing along with them like her arrest was some kind of game. She didn’t know when she was speaking to serious FBI agents or when she was talking to disrespectful immature people who wore badges and uniform but had no concern for the truth.

Dr. Aafia has a very distinct accent, a South Asian touch to American English with a rich vocabulary. When it was her turn to speak, Aafia was so frustrated at the amount of time she had and the amount of things she wanted to say and the depth she wanted to get into, that time simply did not allow her to do so. It was painful to see how a caged person is set free for those few moments in court. She was shocked that the judge was even allowing her to speak so she spoke without preparation. Despite the lack of preparation, Aafia used very powerful and concise language to convey her thoughts and messages and her voice was captivating. Even the guards stopped and listened to her attentively when she spoke. When I read of previous court experiences with Aafia, I didn’t know what to believe when witnesses described her eloquence. But yesterday, I got to see for myself what this Aafia was all about. Various times during her little speeches, I would find audience members crying in response to her powerful heart rendering statements. It was such a moving experience. Grown men crying.  Others chanting “Allaahu Akbar!” absorbed in her moments of strength and perseverance.

Aafia’s lawyer described Aafia’s cell as being “a small concrete block, no light, no windows, she gets fed through the cell, and get one hour of exercise. She reminded all Americans that one day “We’re going to look back in history and see what drove Aafia’s sentencing—fear, instilled and practiced by its very own government. We want to punish her more because of fear. If you sentence her for life, you have given up on her. It is not just to throw away the key on this 38 year old mother.” She reminded Judge Berman, “We all wrestle with what is just and fair. Do the right thing.”

Yet, her lawyer seemed to have given up on Aafia early as well. She said, “There is no question of the verdict. We are not talking about her walking free. We are talking about what kind of sentence is appropriate.”

Aafia rejected claims that she is mentally unstable and admitted there were times she had been on a real low naturally given the rare circumstance she’s placed in, but those times lasted for a short while during her stressful arrival to the States from Ghazni, Afghanistan.

Judge Berman mentioned that some of her doctors have claimed Aafia has several mental illnesses for which there is no medicine out there that will help cure her even if they have intricate facts about her illness.  She is too complex. Berman also pointed out that Aafia’s refusal to participate makes treatment even harder.

Cardi reminded Berman, “Prison is not the best place for encouraging rehabilitation. And this event that took place in Ghazni is not likely to happen ever again in the future. Aafia has never demonstrated violence in her life even after becoming ill.”

The judge said he considers that Aafia serve some time in the Texas facility Federal Medical Center (FMC) Carswell, that it would be good for her mental healing. He asked Aafia how she felt about Carswell and Aafia replied, “Carswell is different. I wouldn’t say it’s better. It’s not. It’s a strange place.”

Cardi went on to say, “We can’t hold her because we think she will do something again; maybe is not fair!” Trying to convince the judge out of giving a life sentence, she said, “Lock her up for 12 years. That is more humane. Aafia will be older and wiser by then. But not for life; forever is a death sentence!”

LaVigne replied, “Protecting the public does deserve a life sentence.  Aafia is very threatening. Let me show you how threatening she is. She was once caught biting a prison guard; therefore, she deserves a life sentence.” He was not being sarcastic.

To this, the judge added, “There is no evidence of Aafia’s disappearance and torture prior to 2008.” He also said, “No offense to Dr. Siddiqui. I believe she has given us false testimonies.”

When the judge asked Aafia if there were any matters of crucial importance she wanted to discuss, she replied, “There is no matter of crucial importance.  I’ll be honest, I was actually planning to sleep throughout this hearing because I didn’t think you would let me speak so I didn’t prepare my [index] cards.” She laughed as she said this.  Then she reminded the judge, “No one here is in charge of my sentencing except for Allah. None of what you all decide for me matters. I am content with Allah’s Decision. I’m happy and you can’t change that. All thanks to Allah.”

She talked about how we should strengthen our souls to be content in whichever situation life places us. Seeing Aafia so content and bubbly all the time, her own psychiatrists have gone to her for help, asking her “How do you stay so content? What’s your secret?” Thus, she concluded, “I don’t need those doctors, they need me!”

She said how she doesn’t write anyone letters. But she receives the letters people write to her. One time, she wrote to her brother and the letter was returned. Another time, she wrote to the Texas Peace Society who had given her an intriguing piece on Iraq Veterans Against the War. She stands for such a cause so she was proud and inspired by their work and wanted to thank them.  The secretary had given her the wrong mailing address for whatever reason, so it was the secretary’s mistake that caused Aafia’s letter to be returned. Otherwise, she hasn’t written to anyone.

At one instance, Aafia was talking and in the middle of a deep conversation, she goes “Oops! My teeth just fell off.  I’m wearing a veil so you can’t see the 110 year old I become when that happens. The doctors did a horrible job attaching my replacement teeth.”

About Israel, she said, “I’m not anti-Israel but I have proof that some Israelis pretend to be Caucasian or Hispanic when they commit crimes against Americans.” She also mentioned that she does respect Israel though because her daughter had been held by them and they did not violate her rights.  “I’ll make sure if I had to care for Israeli children, I would take very good care of them. Children do not deserve to be in prison.”  This strong woman got a little emotional when she mentioned a mother’s concern for her kids. She told us, “If you want to save humanity, get rid of child imprisonment.  Help other innocent prisoners. Don’t waste your efforts and money on me. The money you spend on me is not used for your desired change. Lord knows what happens to that money. I’m stuck with these people as my decision-makers. You won’t get to alleviate my conditions. But I’m very content as is. Don’t cry over my case. God wants me to survive so I am here.”

If you wanted to know the real Aafia at this point, going to her court hearings would have been your only and best opportunity. Aafia wanted to share with us some dreams she has had.  Before going any further, she mentioned a narration of the Prophet Muhammad (peace be upon him) when he said, “Do not attribute to me that which I have not attributed to myself.”  In one of her dreams shortly after her trial, Aafia was thinking and praying that Allah put mercy in the hearts of the Taliban. She was recalling how Yvonne Ridley had come to Islam through their merciful treatment towards her. Then Aafia fell asleep. She saw the Prophet Muhammad (peace be upon him) entering a room full of American soldiers with their hands behind their backs. They were Prisoners of War. “Then Muhammad (peace be upon him) walked into another room and I was following him. Again, there were American soldiers there with their hands behind their backs. The Prophet looked at me and said, ‘Have mercy.’ So I felt the need to address this to my fellow Muslims, and especially to the Taliban. Don’t be angry at the Americans. They are misinformed. I love American soldiers. Some of the soldiers talk to me about college and how they wanted to earn degrees but they are stuck here.”

Aafia had another dream in which Isa (peace be upon him) appeared. She said the dream was too long to get into details, but from it, she got that maybe his coming is near. She also felt the Muslims need to reach out to the Christians more.

At one point, Aafia mentioned with excitement how she finally decided to purchase a radio in her cell after all these years of desolation. Clearly, she is improving. All praise be to Allah. 

When the judge started going over Aafia’s sentencing, I clearly did not understand where he was adding all his offense points from.  All the charges seemed redundant and overboard.  Aafia reminded him in the process that the Prophet Muhammad (peace be upon him) never held personal grudges even against his most brutal opponents.

At the end of an out-of-this-world hearing, when the judge was wrapping up his 86 year sentence on Aafia, Aafia brought up the 6th verse in the 49th chapter of the Quran, “O you who believe! If a rebellious evil person comes to you with a news, verify it, lest you harm people in ignorance, and afterwards you become regretful to what you have done.” She then asked all the people present in the court and her supporters outside of court that they have mercy on and forgive the prosecutors and defendants and Judge Berman. It seemed almost like judge Berman was mocking her when he said, “I wish more defendants would feel the way that you do. Enjoy your life, Dr. Aafia.”

I will admit, giving certain aforementioned individuals mercy is too much to ask for, and it is not happening, at least not from my end. I don’t know how Aafia does it.  But injustice does not deserve her mercy.  Or any of ours.  Many of the audience also nodded in disapproval, replying with “I’m sorry, I can’t.” One of her last comments was, “I was attending MIT before, and here I am back in MIT. I’ve been in MIT this whole time. The Manhattan Institute of Theatre Arts.”

JFAC is the London-based Justice For Aafia Coalition