Babar Ahmad and Talha Ahsan: Why It’s Time to Scrap the US-UK Extradition Treaty

Critics of the European Court of Human Rights, which, in February, refused to allow the UK to deport the Muslim cleric Abu Qatada to Jordan, were delighted when, on April 10, the court turned down an appeal by five other men who were seeking to prevent their extradition to the US, on the grounds that their human rights would be violated if they were sent to the US to stand trial, However, as those critics are generally driven by anti-Islamic “war on terror” hysteria and disdain for the European Court and for the European Convention on Human Rights — and especially the legislation designed to prevent torture and to ensure fair trials — their delight is not something that should necessarily be emulated or encouraged.

The five men are Abu Hamza, Babar Ahmad, Syed Talha Ahsan, Adel Abdel Bary and Khaled al-Fawwaz. As the Guardian described it, the European judges “decided they needed more information about the mental health” of a sixth man, Haroon Aswat, an aide to Abu Hamza who has suffered such a precipitous decline in is mental health that he has been been held in Broadmoor psychiatric hospital, before reaching a decision on him.

Of the five, Abu Hamza (or Abu Hamza al-Masri), whose real name is Mustafa Kamel Mustafa, is the best known, or perhaps the most notorious — a half-blind, hook-handed firebrand preacher, born in Egypt but a British citizen for nearly 30 years, who was tried, convicted and given a seven-year sentence in 2006 for charges of soliciting to murder, and other charges related to “stirring up racial hatred.”

In April 2004, Abu Hamza was arrested in the UK, and indicted by a federal grand jury in the Southern District of New York. The US Justice Department announced that the indictment charged him with “hostage taking and conspiracy to take hostages, in connection with an attack in Yemen in December 1998 that resulted in the death of four hostages,” and also with “providing material support to terrorists, and specifically to al-Qaeda, for allegedly attempting to set up a terrorist training camp in Bly, Oregon, from October 1999 to early 2000.”

The indictment also included charges of “providing material support to terrorists, specifically to al-Qaeda and the Taliban, for facilitating violent jihad in Afghanistan,” and the DoJ noted, “The maximum sentence for the hostage taking charges is the death penalty or life imprisonment. Hamza also faces a maximum sentence of up to 100 years in prison on the additional charges contained in the indictment.” Although his sentence in the UK isn’t supposed to end until 2013, the British government has always made it clear that there is no obstacle to him being extradited before his full sentence is served.

Sympathy is short for Abu Hamza, after his long years as, essentially, a caricature of an Islamist villain — even though there are reasons, as with Abu Qatada, for asking why the mainstream media has almost entirely ignored credible claims that both men were working for MI5 — but there are, at least, alleged crimes involving the United States, whereas one of the aspects of the extradition treaty that has most troubled critics in Parliament is the belief that it is “easier to extradite a British citizen to the USA than vice versa,” as the BBC described the conclusions of a report by the Home Affairs Select Committee just three weeks ago.

The Committee recommended amending the treaty to make sure that the same test applies for extradition from both countries, and introducing an initial test of guilt for those whose extradition is sought. A third recommendation was to allow a British judge to be allowed to try someone in the UK in cases where both countries have jurisdiction.

The criticism followed similar complaints made last June In a report by the cross-party Joint Committee on Human Rights. In the report, as the BBC put it, the JCHR “said safeguards in US cases were ‘inadequate,’ more evidence was needed to justify requests and judges should be able to refuse them if they were not in the ‘interests of justice.'”

The BBC added:

[The report] has called for the the 2003 US-UK Treaty to be “urgently renegotiated” to enable the government to refuse extradition requests if UK prosecutors have decided against beginning proceedings at home.

Requests should only be considered if the US authorities provide prima facie evidence that the suspect has a case to answer to prevent people being sent to face trial abroad on “speculative charges”, it says.

Although provisions already exist for judges to deny extradition if an alleged offence took place wholly or legally in the UK, the committee said these were not being put into practice.

The committee also calls for the government to renegotiate the terms of the European Arrest Warrant, which came into force in the UK in 2004 to speed up extradition requests between EU member states.

It says there are “serious problems” with how the system is operating, that some warrants have been issued disproportionately and for relatively minor offences.

While a number of cases have caused concern — including that of the alleged computer hacker Gary McKinnon, who suffers from Asberger’s Syndrome, was indicted in the US 2002, and has been subjected, since June 2005, to bail conditions including a requirement to sign in at his local police station every evening and to remain at his home address at night — the cases that particularly triggered recent concerns were those of Richard O’Dwyer, a 23-year old from Chesterfield, who is fighting extradition on copyright infringement charges over a file-sharing website he ran in the UK (TV Shack, established in 2007, which provided links to “sites where users could watch and occasionally download TV shows online”), Christopher Tappin, a retired businessman from Orpington, who was extradited in February for allegedly selling batteries for Iranian missiles (although he claims he is a victim of an FBI sting operation) — and Babar Ahmad, one of the five men whose extradition was approved by the ECHR on April 10.

A former employee of Imperial College London, where he worked in the IT department, Babar Ahmad has been imprisoned for eight years pending extradition — not as long as Adel Abdel Bary, an Egyptian lawyer, and Khaled al-Fawwaz, a Saudi, who have been held since 1998 for their alleged involvement in the 1998 US embassy bombings in Kenya and Tanzania — but still an alarming length of time to be held without charge or trial.

Last August, Babar Ahmad’s family launched an e-petition to the British government, calling for him to be tried in the UK if there was evidence that he had committed a crime. This was a huge success, gathering nearly 150,000 signatures in a three-month period, and triggering a Parliamentary debate about extradition — both the US-UK Extradition Treaty and the European Arrest Warrant.

In an exclusive BBC interview just days before the European ruling, which the BBC only secured the right to undertake after winning a high court challenge, Babar Ahmad, who is accused by the US government of running a website, Azzam Publications, which, as the Guardian described the allegations, “provided support to terrorists and was involved in a conspiracy to kill,” spoke from Long Lartin maximum-security prison.

He “pleaded to be tried in Britain and accused the police of ‘outsourcing’ his case to the US,” as the Guardian described it. He “admitted he had previously fought ‘battles’ in Bosnia but said he believed terrorism to be wrong,” and stated, “I am facing extradition to the United States and spending the rest of my life in solitary confinement. I have never been questioned about allegations against me and I have never been shown any evidence against me. It is fair to say I’m fighting for my life and I’m running out of time.”

He added, crucially, “All the offences against me are alleged to have happened in this country. Had the police and CPS put me on trial in 2003 — which they could have done — I would have left prison years ago regardless of the outcome. I have been in this nightmare fighting extradition for the past eight years. I absolutely reject any allegation that I have supported terrorism in any way and in any place — whether in Chechnya, or Afghanistan, or any other part of the world. I believe terrorism to be wrong and I believe targeting and killing innocent people to be wrong.”

He also stated, “The right place for me to respond to these allegations is either in a court of law or a formal police interview,” and, as Victoria Brittain explained, he also “directly asked the Director of Public Prosecutions to put him on trial in the UK here and now, as his family have requested on countless occasions.”

Victoria Brittain also highlighted Babar Ahmad’s powerful words about the difficulty of coping with the kind of open-ended detention faced only by those fighting extradition, facing deportation on charges related to terrorism, or, in the US, languishing in Guantanamo.

“Eight years without trial is like living on death row,” he said. “It’s like you are living every day for a tomorrow that might or might not come. And it has been very, very difficult. It’s just not knowing: there are prisoners all around me who have release dates. Even if it is 10 years ahead of them, they have a date. Detention without trial is the most unimaginable type of psychological torture.”

Echoing Babar Ahmad’s appeal, Sadiq Khan, Labour’s justice spokesman — and the MP for Ahmad and also for Syed Talha Ahsan, a gentle poet, who also suffers from Asberger’s Syndrome, and who faces similar charges relating to website hosting — last week called for the home secretary to charge Ahmad and Ahsan in the UK, rather than allowing them to be extradited, as the Guardian explained, noting that Sadiq Khan’s intervention came as the Crown Prosecution Service admitted “deciding not to put Ahmad on trial here after examining only some of the evidence against him, though much of the material was collected by British police.”

In his letter, Khan wrote, “You may be aware that the Metropolitan police and CPS only viewed a small portion of the evidence against my constituents — and sent the vast majority to the United States authorities without first reviewing it to see if British authorities could bring charges against Babar Ahmad and Syed Talha Ahsan. I would ask that you satisfy yourself that proper procedures were followed at all times in these two cases.”

His letter continued, “I would specifically ask that you personally review the case against my constituents to see if charges can be brought against Babar Ahmad and Syed Taiha Ahsan here in the UK. They have always been willing to stand trial in a British court, and in front of a jury of their peers.”

The Guardian also explained the significance of the admission by the CPS, noting that Ahmad’s family and lawyers believed the CPS had “viewed all the evidence before deciding not to bring charges in the UK,” and that this had “left the way open for the US extradition proceedings.” It was last November that te CPS admitted that only “a small number of documents seized by the Metropolitan police were submitted for advice.” The Guardian also noted, “A letter from Sue Hemming, head of the CPS’s counter-terrorism division also said the CPS had not considered any evidence in charging Ahsan.”

In a statement that purported to explain its position, the CPS said:

We made clear to Mr Ahmad’s solicitors in a letter last November that the CPS as domestic prosecutors saw a small number of documents gathered as evidence by the police in this country, which was insufficient for a prosecution here.

At the time this decision was made, domestic prosecutors were aware of the nature of the evidence in the possession of the US, but the entirety of the evidence was never subject to review in this country as it formed part of the case built by the US and was held there.

The evidence found in the UK and submitted to the CPS by the Metropolitan police service, even if it had potentially amounted to an offence of collecting information likely to be useful for a terrorist purpose, amounted to only a small fraction of the criminality alleged against Babar Ahmad by the US.

This explanation, however, which attempts to explain away the British failings by stressing the importance of the US case, has failed to impress Ahmad’s lawyers, or Sadiq Khan. As the Guardian noted, “The key evidence against him came from searches of his south London home and lockers and computer equipment he used at Imperial College London. Furthermore, bank accounts and postal orders to fund the Azzam website, which the US says shows Ahmad was instrumental in running it, were all based or originated in Britain.” In contrast, the only US-based allegation seems to be that “a server used to host the Azzam website for a period of time was based in Connecticut.”

Legally, the men’s last hope — if the British government fails to be swayed by Sadiq Khan and others appealing for a trial in the UK — is through an appeal to the Grand Chamber of the European Court of Human Rights, which is underway. As the Guardian also noted, although the judges last week “decided that the length of sentences the men faced, and conditions of detention in a Supermax prison in Colorado with extensive periods of solitary confinement, did not amount to inhumane treatment or torture as defined by article three of the European convention on human rights,” not everyone was convinced.

In an intervention that was “essentially rejected” by the court, Professor Juan Méndez, the UN Special Rapporteur on Torture, wrote to the court and stated, “I am concerned that extradition of a detainee to a state that practices solitary confinement with limited recourse would violate article 3,” which prohibits torture, or inhuman or degrading treatment.

I’m with Professor Méndez on this, and with Sadiq Khan, the Joint Committee on Human Rights, the Home Affairs Select Committee, and the many MPs who queued up to express their concerns about the current extradition arrangements after nearly 150,000 people signed up last year for Babar Ahmad to receive a fair trial here in the UK. If justice is to be done — and is to be seen to be done — then Babar Ahmad and Syed Talha Ahsan should be tried in this country, where, despite the creative claims made in the US, their alleged crimes took place.

Note: For further information, please see the websites Free Babar Ahmad and Free Talha Ahsan, where much more information about both men is available. You can also write to both men in Long Lartin prison:

Babar Ahmad A9385AG
HMP Long Lartin
South Littleton
Evesham
Worcestershire
WR11 8TZ

Syed Talha Ahsan A9438AG
HMP Long Lartin
South Littleton
Evesham
Worcestershire
WR11 8TZ

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook, Twitter, Digg and YouTube). Also see my definitive Guantánamo prisoner list, updated in June 2011, “The Complete Guantánamo Files,” a 70-part, million-word series drawing on files released by WikiLeaks in April 2011, and details about the documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and available on DVD here — or here for the US). Also see my definitive Guantánamo habeas list and the chronological list of all my articles, and please also consider joining the new “Close Guantánamo campaign,” and, if you appreciate my work, feel free to make a donation.