The Two Sentencings of Aafia Siddiqui

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 Ghazni, Afghanistan, with her oldest child, carrying incriminating bomb making documents. She was arrested by Afghan 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 fingerprints 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 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 Ghazni, Afghanistan by the Afghans 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 would 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 minimum 10 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 soldiers 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 Pakistanis 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 waved 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 “unpremeditated”) – 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.