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Did Dr Shakil Afridi commit treason?
By Feisal H Naqvi
Published: March 19, 2012
The writer is a partner at Bhandari, Naqvi & Riaz and an advocate of the Supreme Court. The writer can be reached on Twitter @laalshah. The views presented in the article above are not those of his firm
Dr Shakil Afridi is a Pakistani doctor who worked with US intelligence agencies to help capture Osama bin Laden. Ever since his role was discovered, he has been held in custody.
Many people think that the detention of Dr Afridi is justified. Their basic point is that no citizen of Pakistan can legally be employed by a foreign intelligence agency. Their further point is that other countries react the same way when they find their citizens working for foreign intelligence agencies, even those of allied states (see e.g., Jonathan Pollard, an American citizen who has been in a US jail since 1987 for providing information to the Israelis).
In my view, the statement that no Pakistani citizen can ever be employed by a foreign intelligence agency is incorrect.
There is a station commander of the CIA resident in Islamabad. We know this because his identity emerges in newspapers at times when the Pakistani state is particularly upset with the US. In addition, I believe there are also a sizable number of other intelligence operatives whose identities are known to the Pakistani government.
Each of those intelligence operatives normally employs Pakistanis as cooks and drivers. Each of those Pakistanis is in the employ of a foreign intelligence agency. None of them is automatically a traitor.
Take another example. Suppose the CIA station commander goes to a restaurant in Islamabad where the restaurant owner knows his identity. Is that restaurant owner a traitor to Pakistan? I think not.
The conclusion then is that merely working for a foreign intelligence agency is not enough to render one a criminal. Instead, it depends not only on what you do but also your intentions. More specifically, in order to be found guilty of treason (or a similar crime), it is necessary for the prosecution to show either that the accused committed an act which was wrong in itself (e.g. disclosing confidential information) or that the accused committed an act which while ostensibly legal was committed as part of a larger conspiracy to commit an illegal act.
To illustrate the concept of conspiracy, look at the role of a driver. It is legal to drive a car for somebody in exchange for payment. It is not legal to drive a car for somebody knowing that the person in question intends to rob a bank and that you will be the getaway driver.
To return to the case of Dr Shakil Afridi, there are only two ways to find him guilty. The first way is to allege and prove that what Dr Afridi did was illegal in itself. The second way is to allege and prove that what Dr Afridi was part of a larger conspiracy to commit an illegal act.
My understanding of what Dr Afridi did is that he ran a bogus polio vaccination programme at the instigation of the US intelligence services. So far as I know, the vaccinations carried out were genuine. However, the programme in question was not officially authorised and the plan was for Dr Afridi to share the genetic material collected with the US agencies to confirm the identity of Osama bin Laden.
Assuming that the vaccinations were genuine i.e. that actual vaccination kits were used and not placebos and given that Dr Afridi is a licensed physician, I do not see how any reasonable person can argue that the actions of Dr Afridi were illegal in and of themselves. Furthermore, even to the extent that running an unauthorised vaccination campaign is a violation of Pakistani law, it certainly does not amount to treason by itself.
What we are left with then is the argument that Dr Afridi is guilty of treason because he conspired to commit treason.
Treason is normally defined as the violation of ones allegiance towards one country, for example by waging war against it, by aiding enemies of the state, or by working contrary to the interests of the state.
In this context, Dr Afridis first line of defence is presumably that he had no idea that the aim of the vaccination project was to confirm the identity of Osama bin Laden. However, my understanding is that Dr Afridis American friends have already destroyed this argument by claiming that Dr Afridi had full knowledge of the aim of the operation.
The legal question is then this: how is the decision by a Pakistani citizen to assist the forces of a military ally in killing Osama bin Laden equivalent to treason?
Theoretically speaking, there are two answers. The first is that Osama bin Laden was not an enemy of the state of Pakistan. Presumably, this is not an argument that the government of Pakistan wishes to adopt at least, not in public. The second argument is that while Osama Bin Laden was indeed an enemy of Pakistan, the only entity legally justified in taking action against him was the state of Pakistan and that by assisting US intelligence agencies, Dr Afridi assisted in the violation of Pakistans sovereignty that occurred when Seal Team 6 flew in on helicopters to Abbottabad.
The second argument is legally valid. However, it assumes that Dr Afridi had specific knowledge of the fact that eventual action against Osama Bin Laden was going to be taken unilaterally by US Special Forces without the approval and knowledge of the Pakistani government. If that can be shown, then there is indeed a case to be made out against Dr Afridi for treason. But if that cannot be proven and I must admit my scepticism that the US intelligence had informed Dr Afridi of an operation so secret that only handful of people knew about it then Dr Afridi is innocent of treason.
Obviously, Dr Afridis guilt or innocence has yet to be determined. All I wanted to show was that it is not a simple issue.
There is another issue involved here. To my knowledge, Dr Afridi has not been charged yet with any crime. Under Article 10 of the Constitution, every person who is arrested is required to be presented before a magistrate within a period of 24 hours. Dr Afridi may or may not be guilty of treason. But if he has not been charged with a crime, the state of Pakistan is certainly guilty of holding him illegally.
Published in The Express Tribune, March 20th, 2012.
Comparing cooks and janitors employed by the CIA operatives - who aren't even told that they are working for the CIA - isn't the same as someone clandestinely going in and doing spywork - not to mention injecting kids with needles which has irreversibly harmed several immunization programs in itself is a big offense against the nation state.
And why is the United States negotiating?
He is not in jail but police custody and a flight risk. Charges have obviously been made otherwise some smartass would have already tried that and the media would have been all over it.
