What Was Dr. Afridi Convicted Of?

By Benjamin Wittes
Monday, May 28, 2012, 8:11 AM

Over at Opinio Juris, Kevin Jon Heller has a post complaining about Leon Panetta's recent lament that “[i]t is so difficult to understand and it’s so disturbing that [Pakistan] would sentence this doctor to 33 years for helping in the search for the most notorious terrorist in our times. . . . This doctor was not working against Pakistan, he was working against al Qaeda.”

Kevin writes:

Putting aside the ridiculous hypocrisy of the United States criticizing another government for an unfair treason prosecution, Panetta’s statement is profoundly misleading. As the inestimable Glenn Greenwald has explained, Afridi was convicted not because he passed along useful intelligence to the CIA (which is itself debatable), but because he obtained that intelligence by running a CIA-created fake vaccination program for Pakistani children (emphasis added).

I don't think this is true.

For reasons familiar to Lawfare readers, I generally decline to mention Kevin's source by name. But his source in this instance is being much more careful than Kevin is in presenting the Afridi matter. The source, on his blog, does not say--as Kevin does--that Afridi was not convicted of giving useful information CIA, merely that this is "a woefully incomplete narrative: incomplete to the point of being quite misleading."

And it's pretty clear that Afridi was, in fact, convicted of helping the CIA. Surfing Pakistani media, I have been unable to score a copy of the actual judgment or charges (I think because the trial was secret), but I was able to find this article in Pakistan's Express Tribune:

“Dr Shakil, s/o Mewa Khan, from Malikdin Khel sub-clan of Afridi tribe and a resident of Khyber Agency, was sentenced under Pakistan Penal Code (PPC) clauses related to offences against the  state, conspiracy or attempt to wage war against the state, spying and allying with a foreign government against the state’s interests,” a Khyber administration official told journalists on Wednesday.

“Dr Afridi was tried secretly and he was found guilty,” the official said, adding that after APA’s court Dr Afridi was produced in the superior court of PA Muthar Zeb who upheld the sentence. Subsequently, he was sent to Peshawar’s central prison.

Unlike the PPC, FCR do not carry the death penalty for treason. However, Dr Afridi has the right to appeal his punishment. Dr Afridi was arrested by intelligence agencies following the May 2, 2011 raid on Bin Laden’s compound by US special forces. He has not been publicly heard of since.

He was handed over to the Khyber Agency’s administration a few days ago because he was serving as Agency Surgeon in a hospital in the Landi Kotal sub-division at the time of his arrest. A lawyer said that PPC’s Section 121 deals with “attempting to wage war or abetting the waging of war against the state”.

Or consider the way Dawn, another Pakistani newspaper, describes the conviction:

Afridi was sentenced to 33 years in imprisonment on May 23, 2012 for conspiring against the state.

The verdict was passed under a colonial-era legislation that deprives the defendant a right to hire a lawyer. The verdict was handed down by an official of Khyber Agency in consultation with the council of elders.

The FIR against Afridi was lodged under Section 40 of the Frontier Crimes Regulation (FCR).  The conviction was handed-out under clauses 121, 123,123-A and 124 of the FCR. Under the first three clauses, he was sentenced to 10 years in prison each whereas under the last clause he was sentenced to three years’ imprisonment, raising the total to 33 years.

The cited clauses of the Frontier Crimes Regulation do not appear to exist. But the cited sections do exist under the Pakistani Penal Code and they do not appear to deal with fake vaccinations. Section 121 is entitled "Waging or attempting to wage war or abetting waging of war against Pakistan." Section 123 is entitled "Concealing with intent to facilitate design to wage war," Section 123-A is entitled, "Condemnation of the creation of the State, and advocacy of abolition of its sovereignty." And Section 124--which seems a bit of a misfire here--is entitled, "Assaulting President, Governor, etc., with intention to compel or restrain the exercise of any lawful power."

I wouldn't be at all surprised, to put it simply, if the latter did not turn out to be among the precise charges against Dr. Afridi, particularly since it doesn't line up  with the charges as reported by the Express Tribune. My point is that neither paper--or any other account of the trial I have seen--supports the notion that Dr. Afridi was tried because of his mode of intelligence collection (a fake vaccine program), rather than because--just as Panetta says--he helped the CIA kill Bin Laden.