A week ago, a three-member bench of the Supreme Court once again took up the issue of missing persons in Pakistan. Chief Justice Iftikhar Chaudhry along with Justice Ijaz Ahmed and Justice Rahmat Hussain summoned law-enforcement officers in response to a camp set up on Islamabad’s Constitution Avenue.
The bench asked the law-enforcement officers to step up their efforts to trace the increasing number of persons who have ‘disappeared’ and whose whereabouts have been unknown since they went missing. The court expressed particular concern about the case of Masood Janjua — a businessman ‘disappeared’ since July 2005. His wife had set up the camp to draw attention to her husband’s case.
According to the last figures reported by Human Rights Watch, nearly 1,100 persons were reported to have ‘disappeared’ in the counter-terror operations in Pakistan. Of these, 400 are being investigated by the Supreme Court. A recent report entitled ‘The Intelligence Factory’ published in Harper’s Magazine in the United States describes in detail the complex relationship between Pakistani and American intelligence agencies with regard to the apprehension, investigation and disappearance of terror suspects.
Concentrating on the case of Aafia Siddiqui, whose plight has been discussed at length in Pakistani newspapers, the report unveils the myriad stories and accounts that attempt to explain the mysterious circumstances of her disappearance in Karachi and bizarre reappearance with her son in Ghazni, Afghanistan. While Aafia Siddiqui awaits trial in a federal court in New York, with lawyers specifically assigned to defend her (even though she has insisted she would like to defend herself), the hundreds of disappeared persons in Pakistan have yet to be reported dead or alive or produced before a court of law.
The responses that the United States and Pakistani governments have crafted to the issue of ‘disappearances’ have been proportionate to the strength of the legal system in each country. Both governments have been haunted by the spectres and commitments of administrations past; but neither has tried very hard to turn the course carved by their forbears. In the case of the United States, the Obama administration has not yet condemned the practice of ‘extraordinary rendition’ through which terror suspects can be shipped offshore and subjected to more terse and lawless interrogations by CIA agents than would be permissible on US soil. Secret CIA prisons are now known to exist in Eastern Europe, Central Asia and South Asia. These prisons, in collusion with the legally flexible mores of the countries where they operate, accomplish the dirty task of satisfying political demands for actionable intelligence on terror plots and terror suspects.
In Pakistan, where the legal system is in a shambles and the Supreme Court itself was sacked for probing the matter of the missing persons — at least one of the reasons —enforced disappearances do not pose a singularly legal challenge. As the case of Masood Janjua and countless others illustrates, the inexplicable disappearance of hundreds can take place without substantive legal mechanisms requiring their production in court.
The sad history of fuelling vendettas by orchestrating the disappearance of political opponents makes the surreptitious apprehension and extra-legal incarceration of alleged suspects logistically easy. The availability of American money to compensate for these alleged suspects makes the operation productive in monetary if not security terms with intelligence agencies around the world eager to accept cash handouts for those they have apprehended in their supposed efforts against terror.
And then there is the thorny question of innocence. As the report on Aafia Siddiqui’s case illustrates, the presence of an overwhelming number of opposing narratives — from her former husband who attests to her extremist views, to her sister who swears she is innocent, to the bizarre circumstances of her apprehension in Ghazni and shooting in detention — all point to the difficulty in discerning the truth.
Yet what is difficult to discern in DrAafia’s case also represents what is most problematic and politically costly in the cases of all the others. The moral cost of enforced disappearances, whether they occur through the artful legal fiction of extraordinary renditions by the United States or the unceremonious kidnapping of businessmen, journalists and political workers in Pakistan, is that the act of extrajudicial incarceration by definition renders the victim innocent.
In other words, while an overwhelming array of security reasons can be cited both by the United States and by Pakistani security officials and intelligence agencies for apprehending these high-value suspects; the surreptitious nature of their apprehension renders them innocent regardless of all the sins they may have colluded in. The moral cost of these apprehensions then, even if the legal costs are ignored, is that the very secrecy that security agencies consider such a justification for enforcing a disappearance deflects attention from the culpability of the accused.
This moral cost is further amplified when no plot is unearthed. As the Harper’s report reveals, the past few years have seen over 5,500 counter-terror leads investigated by the FBI, but only five percent were believed to be credible and not one had been found to foil an actual terror plot. In the case of Pakistani security agencies the case becomes even harder since despite the disappearance of hundreds perhaps thousands of supposed ‘terrorists’ for ‘security’ reasons the country is rocked by suicide blasts every week if not every day.
The point is not whether the above statistics truly indicate the success of security agencies against the war on terror; what they illustrate is the popular critique and ethical aspersions that have now tainted the way in which governments are fighting the war on terror. In flouting the rule of law, by acquiescing to extrajudicial measures in apprehending and detaining suspects, both governments lose the very moral ground essential to winning the moral war on terror.
Instrumental in this moral defeat is the inability of the United States and the Pakistani government to provide coherent answers to why state actions such as enforced disappearances, extraordinary renditions or drone attacks are morally distinguishable from suicide bombings and the destruction of schools and markets. Military efforts, troop surges and the efforts of intelligence agencies to thwart the actions of terrorists may all be necessary; but in failing to create legal parameters that define their boundaries they bear the risk of being publicly digested as equally arbitrary and indefensible as the lawless acts of terrorists themselves.
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