I have the greatest regard for Feisal H Naqvi not just for his legal acumen but also the ability, rare in this country and getting rarer still, to connect dots and find affinities where none exist to common minds. But I have difficulty agreeing with the arguments he has presented in his op-ed published in this newspaper on March 19, titled “Did Dr Shakil Afridi commit treason?”
The assertion “that merely working for a foreign intelligence agency is not enough to render one a criminal”, going by the examples Feisal has given, should be obvious. Foreign missions generally have intelligence personnel on cover postings. They also employ local people as household help. The domestic staff is not supposed to know, unless one or all of them also belong to the host country’s intelligence — often the case — about the ID of the person that has employed them. In either case, whether they know it or not they are not in the same category as someone who has wilfully been in the employ of a foreign intelligence agency. Please note that I have not used the term “hostile” because no foreign intelligence agency is ever non-hostile even if it belongs to a “friendly” state.
Ditto for the example of the supposed CIA Station Chief going to a restaurant and being fed like other patrons: one, if he knows his craft, the restaurateur is not supposed to know who he is feeding; two, just because the state has allowed someone in, even if supposing it knows who the person is, does not mean the citizens’ dealings with that person outside of what is authorised, legal and in the line of one’s duty can be defended on the basis that if the state can have dealings with such a person so can the citizens.
In both examples, the lawyer in Feisal has picked up the laypersons’ argument, i.e., “that no citizen of Pakistan can legally be employed by a foreign intelligence agency” to rubbish it because those advancing this argument do not have his court skills.
Let’s then first posit that Afridi’s case cannot be likened to these examples. This is of course what Feisal does subsequently when he says, “What we are left with then is the argument that Dr Afridi is guilty of treason because he conspired to commit treason” though he goes on to add the caveat that “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?”
He then presents 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 (emphasis added).” This is evidently not a legal argument and trots out an assumption which is not only unproven and uncalled for but places the onus of proving such an insinuation on those who make it.
I am more interested in Feisal’s “second argument” — that “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 Pakistan’s sovereignty...”. This Feisal concedes is “legally valid” but argues that “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.”
He doubts that such would be the case and since it is not possible that Afridi was privy to what action was to be taken against bin Laden “then Dr Afridi is innocent of treason”.
Wrong. Intelligence work is normally conducted on need-to-know basis. While Aridi was unlikely to know what exactly the Americans would do to take out bin Laden, much less know about Seal Team 6, it is enough, if proved, that he conducted an exercise to determine for a foreign intelligence agency the presence of bin Laden, knew what he was doing and did so without informing his own state. He therefore not only acted in the pay of a foreign state but deliberately withheld vital information which resulted in terrible embarrassment for the State of Pakistan whose citizen he is.
Article 5 of the Constitution of Pakistan is very clear with reference to “Loyalty to State and Obedience to Constitution and Law”. Feisal has already mentioned Jonathan Pollard’s case. Pollard was even granted Israeli citizenship in 1995 and successive Israeli governments have lobbied for his release. President Clinton wrote in his autobiography: “For all the sympathy Pollard generated in Israel, he was a hard case to push in America; he had sold our country's secrets for money, not conviction, and for years had not shown any remorse. When I talked to Sandy Berger and George Tenet, they were adamantly opposed to letting Pollard go, as was Madeleine Albright.”
But there’s another case: Mordechai Vanunu. Vanunu blew the whistle on the Israeli nuclear programme. His defence was not just moral, opposition to nuclear weapons, but also legal: the Israeli state was in violation of International Law. Yet, the state of Israel did not buy it. Let’s however accept the argument that Vanunu had to violate his citizenship oath to his state because the state was in non-compliance of International Law obligations. In other words he couldn’t have co-opted a state that was violating an obligation. Can this defence be applied to Afridi at a theoretical level?
Perhaps. But then we will have to prove that the State of Pakistan was in non-compliance of the UN legal regime on terrorism. Empirical evidence suggests that Pakistani intelligence agencies have captured, killed, and handed over to the US more AQ and Taliban rank and file than all other agencies combined. It has deployed more than 110,000 troops in FATA and conducted multiple big and small operations in the area in support of the UN regime.
The defence that Afridi might have acted Vanunu-like therefore stretches credulity. Please note that I have offered this defence despite knowing that, as Vanunu’s and other cases testify, no state will ever accept this legal-moral position as viable defence. This is where we get into the problems of consent and sovereignty, accepted notions that place limits on the exercise of International Law and obligations.
Where I fully agree with Feisal is on the point that Afridi should be allowed due process. If he then gets nailed, so be it.
Published in The Express Tribune, March 22nd, 2012.