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UK: Campaigners call for amendment to one-sided UK-US extradition treaty

28 March 2012

24.05.2012 The UK was accused last night of being a "minor 51st state of America" as over 150 people packed into a hall in London to hear the stories of individuals facing extradition to the United States, two of whom have been detained for a total of 14 years despite never facing trial in the UK.

In front of a screen bearing the slogan "British justice for British citizens", speakers urged the crowd to step up the campaign to amend the Extradition Act 2003, under which no prima facie evidence is required for extradition from the UK to the US to be approved.

The meeting was organised by the families of four men: Babar Ahmad, accused of supporting terrorism in the 1990s and who has been detained since 2004; Syed Talha Ahsan, who faces similar charges covering the period from 1997 to 2004 and has been detained since 2006; Gary McKinnon, accused of hacking into the Pentagon's computer system from his London home and currently on bail; and Ryan Cleary, also on bail and who allegedly participated in computer attacks against the CIA website as part of the hacking group LulzSec.

Other recent cases include those of Christopher Tappin, accused of exporting batteries to Iran that could potentially be used for the manufacture of missiles, and Richard O'Dwyer, accused of copyright infringement.

Mr Ahsan and Mr Ahmad are being represented in their legal battle by Gareth Peirce, who noted that no one is asking for any of the men in question to be let off the hook. The offences of which they are accused allegedly took place in Britain and "all that's being asked is a trial here," she said, a theme echoed by all the speakers.

The audience was urged to write letters to and arrange meetings with their MPs to demand reform, and there were a number of calls to support those currently imprisoned and awaiting potential extradition by writing letters or sending postcards. Public protests will be organised across the UK on Saturday 16 June.

A Statewatch analysis published following the signing of the treaty noted how:

"Under the new treaty, the allegations of the US government will be enough to secure the extradition of people from the UK. However, if the UK wants to extradite someone from the US, evidence to the standard of a 'reasonable' demonstration of guilt will still be required.

No other EU countries would accept this US demand, either politically or constitutionally. Yet the UK government not only acquiesced, but did so taking advantage of arcane legislative powers to see the treaty signed and implemented without any parliamentary debate or scrutiny." [1]

Political will

David Bermingham, who was indicted by a Texan court in 2002 and extradited in 2006 as one of the "Natwest Three", said that the political debate surrounding the cases of Babar Ahmed, Syed Talha Ahsan, Gary McKinnon and Ryan Cleary had "a grim sense of déjà vu" about it.

Joshua Dratel, a US lawyer and an editor of the book The Torture Papers: The Road to Abu Ghraib, spoke to the meeting from Chicago via audio link: "The US is very aggressive and sometimes seeks to assert jurisdiction that conflicts with the jurisdiction of other nations, in this case the UK…This will continue unless there is sufficient pressure put on the UK [government]."

There was a consensus amongst those speaking that pressure from the public and the media is growing, with even the Daily Mail launching a campaign in support of reform the extradition laws.

Isabella Sankey, Policy Director for Liberty, said that "We now have a real opportunity to put things right…If we're ever going to get this law right, now is the moment to do it."

A recent Home Affairs Committee report proposed:

"significant changes to the extradition arrangements between the US and the UK not because we are critical of the American justice system but because we recognise the importance of robust extradition arrangements between our countries. Such extradition arrangements are now threatened by loss of public confidence in the UK and there is a risk that, with time, that lack of confidence will translate into wider disaffection. We believe that the Government should act now to restore public faith in the Treaty by rebalancing the requirements for the provision of information, urgently opening negotiations about the re-introduction of an evidence test, and introducing a forum bar." [2]

There are provisions for the introduction of a forum bar in the Police and Justice Act 2006, although they have not been commenced.

A forum bar would permit an extradition request to be refused if "a significant part of the conduct alleged to constitute the extradition offence is conduct in the UK, and in view of that and all the other circumstances, it would not be in the interests of justice for the person to be tried for the offence in the requesting territory." [3]

However, the Baker Review, a year-long judge-led inquiry, concluded in October 2011 that the US-UK treaty "does not operate in an unbalanced manner." [4]

Broken promises?

The Conservative-Liberal Democrat coalition's programme for government stated that: "We will review the operation of the Extradition Act - and the US/UK extradition treaty - to make sure it is even-handed."

Both parties consistently voted for reform a number of times over the last decade, and MPs of all parties polled privately on behalf of Liberty in 2010 agreed that the law needed changing: "83% of those surveyed agreed or agreed strongly that the forum bar should be introduced. 66% of those polled also agreed or agreed strongly that extradition should only occur if the request country first provides evidence in a UK court."

Following a vote on the issue in 2006, both Conservative and Liberal Democrat MPs expressed anger at the extradition arrangements, with Nick Clegg (now Deputy Prime Minister) saying that the treaty was "unfair and imbalanced."

Former Conservative leader Michael Howard accused the UK of being a "poodle of the president of the United States of America." [5]

Speaking at last night's meeting, David Bermingham was particularly vociferous in his condemnation of the current government, stating that "the Cabinet is in thrall to America on this issue."

He said that the issue of extradition is a question of whether the UK "can be a normal grown-up democracy instead of some minor 51st state of America."

The US, via their ambassador, have lobbied "more than hard", and have apparently had private meetings with the Home Affairs Committee, the Foreign Affairs Committee, and 10 Downing Street. But he demanded that the government should "not be allowed to get off the hook on this."

"Miracles can happen"

The European Court of Human Rights recently issued a ruling on the cases of Babar Ahmed and Tahla Ahsan, along with a number of others, who had appealing to the Court with the argument that "if extradited and convicted in the United States, they would be at real risk of ill-treatment either as a result of conditions of detention at ADX Florence (which would be made worse by the imposition of 'special administrative measures') or by the length of their possible sentences." [6]

ADX Florence is a 'supermax' prison in Colorado. Special administrative measures include "prolonged solitary confinement and arbitrary strip-searches which may have harmful mental effects." [7]

Michael Rutner, a lawyer at the Center for Constitutional Rights in the US, spoke to the London meeting via videolink and roundly condemned the "utter deterioration" of the US criminal justice in the wake of the 11th September attacks and the advent of the 'war on terror'.

He recalled the case of Fahad Hashmi, a US citizen who was extradited from the UK and is now held in solitary confinement and subject to special administrative measures, under which "he is kept under 23-hour lockdown, [is] allowed only one visit from an immediate family member a week, and [can] have no other contact with anyone besides his lawyer and prison officials." [8] The only newspapers he is allowed to read must be at least 30 days old.

Given the state of the criminal justice system in the US, Rutner argued that "every extradition to the US is an extradition to purgatory." He said that the ruling of the ECHR took US assertions of prison conditions "as gospel" and ignored the facts.

According to Rutner, for anyone who knows ADX Florence "the ECHR decision is a work of fiction… To extradite in these circumstances, in my view, is a per se violation of human rights."

One member of the crowd asked Gareth Peirce about the likely timeframe in the cases of Ahmad and Ahsan, following the ECHR ruling.

She said the two men will be put on a plane to the US on 10 July "unless there is a miracle, and miracles are possible."

There is the possibility of further legal challenges. The Crown Prosecution Service has recently said in letters that evidence has recently emerged that may allow Ahmad's case to be tried in the UK.

It was also alleged that shortly before the ECHR's judgment came out, some of the judges visited Washington and met US judges.

Peirce maintained that hope remains for those facing extradition: "Below the surface there's more disgrace to be found and there's more challenges to be had."

Sources

[1] Statewatch analysis: The new UK-US Extradition Treaty, August 2003: http://www.statewatch.org/analyses/no-18-uk-usa-extrad.pdf

[2] Home Affairs Committee, December 2011: http://www.publications.parliament.uk/pa/cm201012/cmselect/cmhaff/644/64403.htm#a4

[3] Home Affairs Committee, December 2011: http://www.publications.parliament.uk/pa/cm201012/cmselect/cmhaff/644/64403.htm#a3

[4] A review of the United Kingdom's extradition arrangements, September 2010: http://www.statewatch.org/news/2011/oct/uk-baker-extradition-review.pdf

[5] BBC website, 12 July 2006: http://news.bbc.co.uk/1/hi/uk_politics/5171266.stm

[6] European Court of Human Rights judgment in case of Babar Ahmad and others v. the United Kingdom, 10 April 2012: http://www.bailii.org/eu/cases/ECHR/2012/609.html

[7] Interights website: http://www.interights.org/ahmad/index.html

[8] Free Fahad website: http://freefahad.com/?page_id=3