Feisal Naqvi

Archive for March, 2012|Monthly archive page

Did Dr. Shakil Afridi commit treason?

In Uncategorized on March 21, 2012 at 4:11 am

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 one’s 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 Afridi’s 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 Afridi’s 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 Pakistan’s 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 Afridi’s 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.


Founding stories

In Uncategorized on March 13, 2012 at 6:45 am

One million people died in Partition. Logically speaking, that has nothing to do with the merits of the two-nation theory. But we are not creatures of logic.

Let me start with the first point.

The two-nation theory is the argument that Muslims and Hindus are two intrinsically, inherently different peoples; each a nation entitled to its own sovereign territory.

There is no universally accepted definition of what constitutes a nation. Formulations in international law tend to be circular: a nation is thus a collection of people sufficiently large and sufficiently different from other people, as to be entitled to self-determination. Self-determination, on the other hand, is what nations are entitled to.

The result of this circularity is that we are left with only an eyeball test; if it looks like a nation, talks like a nation, quacks like a nation, then by golly, it is a nation. In this frustrating sense, nationhood is much like pornography, the best definition of which remains Justice Potter Stewart’s statement, “I know it when I see it.”

To return to my point, Partition does not prove that the Hindus and the Muslims of the subcontinent are two different nations. All it proves is that people are capable of doing horrible things to each other.

Before I wind up in hot water, let me clarify for the benefit of the excessively patriotic that I am not, repeat NOT, saying that the two nation theory is wrong. I’m just saying that the fact that a million people died because of the pursuit and political realisation of that theory is logically irrelevant to the truth of the two-nation theory.

At the same time, what is important to note is that logic is not the key factor here. As Kathryn Schulz explains in her fascinating book, Being Wrong, (Ecco; June, 2010) people are born storytellers. We make up stories every day. In fact, we make up stories every minute.

To clarify, the point that Schultz makes is not that people spend all day, every day telling yarns to each other. Instead, her point is that we take the incomplete information received by our senses and join the dots to get a complete picture of the world. Most times we get the picture right. Sometimes we get the picture completely wrong, so wrong that we just make things up out of thin air to explain otherwise inexplicable stuff, a behaviour called ‘confabulation’.

Schulz illustrates this behaviour by using examples from people who had been treated for epilepsy through a procedure in which the tissue connecting the left and the right halves of the brain was cut. Because this tissue had been cut, information processed by one half of the brain (such as what the person saw) was not available to the other half of the brain responsible for speech. For example, a patient who was shown nude pictures kept on giggling out of embarrassment. However, when she was asked why she was giggling, the part of her brain responsible for speech could not access the information that she had been shown embarrassing pictures. The result was that she ‘confabulated’ and responded by saying that she was laughing because the doctor had asked such funny questions.

A different insight that comes to us from economics is that people are ‘loss averse’. In simple language, what that means is that people don’t like losing something they have a lot more than gaining something they don’t have.

To illustrate this point, consider a game which involves flipping a coin. If the coin comes up heads, you get paid Rs. 100. If it comes up tails, you have to pay Rs. 100.

In purely logical terms, the two choices are equal. Most people, however, don’t see things that way. Instead, as shown by Kahneman and Tversky (and they got a Nobel Prize for this insight), people normally only want to play this game if the payoff for calling the coin toss correctly is double the penalty for getting it wrong. In other words, people will play the game only if you give them Rs. 200 for getting the coin toss right, and make them pay Rs. 100 for getting it wrong.

For what it’s worth, this behaviour is not restricted to humans. A study carried out by Yale University scientists in 2005 found that capuchin monkeys behave in the exact same way. Loss aversion, in other words, has very deep evolutionary roots.

If we put the two points together, what we get is this: a million people died in the pursuit of the two- nation theory, a terrible loss by any standard. As human beings, we have a tremendously deep need to make sense of our world, and particularly of things that hurt us. At least in my view, the consequence is that, irrespective of the historical facts, there will always be a ready market for the argument that Pakistan should be a fundamentalist Islamic state.

If Pakistan was intended to be liberal and secular, then it means one million people died because the Muslim elite of the subcontinent didn’t trust the Hindus, not because there is any thing different between the two peoples. Historians may think that is an accurate way of describing what happened. But in terms of inspiring people, it certainly lacks the clarity and passion of the mullah’s vision.

Does this mean that liberals in Pakistan are doomed to falter before the devotees of a militant religious identity?

To some extent, yes. People who want a liberal, secular Pakistan will always have trouble grappling with the tragedy of Partition. At the same time, traumas diminish with every generation. My father was told by his father to shoot the women and children first if the walls of their house were breached, an episode which he has obviously never forgotten. I was told that story by my father and while I am unlikely to forget it, it is also normally not something I think about. My son, too, has heard the story but what happened to his Dada six decades ago belongs in some distant prehistory when dinosaurs also roamed the earth.

They say time heals all wounds. Let’s see what it does in the case of Partition.

A version of this column was published in The Express Tribune, March 13th, 2012.