A new piece for HSToday.us, exploring an issue I believe I have mentioned before, but not in any great detail. Since this was written, it now emerges that a chap who had been listed in the SIAC judgment as being under risk of torture if he was returned to Pakistan, has now in fact returned. All a real mess with no resolution on the horizon.
UK-US Face Problems in Terror Suspect Extradition
by Raffaello Pantucci
Monday, 19 July 2010
European court refuses to withhold suspects from going into US custody.
It is a strange quirk of fate that while on the one hand American and British security operators work hand in hand against a common threat, their governments seem unable to deport terrorist suspects between each other. As the UK marked the fifth anniversary since July 7, 2005 when an Al Qaeda trained suicide team attacked London, this reality came into focus as the European Court of Human Rights (ECHR) blocked one extradition request and the United States launched another.
The first case is one which has been winding its way through the British courts system since May 2004 when British police first arrested Abu Hamza in furtherance of an extradition request by the United States. His extradition was sought for his role in assisting a terror plot in Yemen in December 1998 which ended with the deaths of four hostages and the conviction of a group of British Muslims (two of whom were directly related to him), his role in facilitating introductions to the Taliban, and finally his role in attempting to organize a terror training camp in Bly, Oregon. Co-conspirator Haroon Rashid Aswat (who was brought into British custody on August 2005) is also wanted in connection to the charges surrounding the Bly, Oregon training camp case, while the other two, Babar Ahmad and Syed Talha Ahsan (respectively arrested in August 2004 and July 2006), are instead wanted in connection to a series of websites supporting terrorism that they are alleged to have run.
Aside from Abu Hamza, none of the men have been charged with crimes in the United Kingdom – and at this point, Hamza has all but served the seven-year charge he was handed down for inciting hatred in the United Kingdom. They all remain in custody while their lawyers argue that the men cannot expect a fair trial if they are deported to the United States, that they might be subject to extraordinary rendition and that the terms under which they are likely to be detained in the United States (most likely in the Federal Supermax penitentiary ADX Florence in Colorado) would impinge on their human rights. Last week, the ECHR in Strasbourg dismissed many of the men’s complaints, but admitted “the applicants’ complaints concerning the length of their possible sentences,” and Aswat, Babar, and Ahsan’s concerns about being detained at ADX Florence, “cannot…be considered manifestly ill-founded.” Given Hamza’s infirmities and a letter from the prison warden, the court was prepared to believe that it was unlikely that he would be spending much time in the jail and would instead be moved to a medical facility.
The point of concern rests around the fact that it seems as though the court is unsure whether the men’s human rights are being breached if they are going to be detained at ADX Florence under stringent circumstances in which it can appear there is no possibility of parole or release. In essence the ECHR is determining whether the U.S. penal system is compatible with European human rights standards, something highlighted by one of the suspect’s lawyers in the Guardian newspaper. “It’s a very important test of whether the way the US treats its prisoners meets international standards.”
This something of a shift from previously, when the concerns were in part focused on the official upturning of international norms that the previous administration announced when President Bush declared that the “world had changed” after the September 11 attacks. The decision to carry out extraordinary renditions, abrogate the Geneva conventions for certain prisoners and the establishment of Guantanamo Bay all created a legal environment which might cast doubt on U.S. government reassurances. As the applicant’s case before the court put it, “It was not sufficient to rely on the history of extradition arrangements with the United States, as the [British] Government had done: the attitude of the United States Government had changed fundamentally as a result of the events of 11 September 2001.”
In a move which no doubt provided some reassurance to governments on both sides of the Atlantic, the court dismissed such concerns, stating, “Whatever the breadth of the executive discretion enjoyed by the President in the prosecution of the United States Government’s counter-terrorism efforts, the Court is unable to accept that he, or any of his successors, would commit such a serious breach of his Government’s assurances to an extradition partner such as the United Kingdom; the United States’ long-term interest in honouring its extradition commitments alone would provide sufficient dissuasion from doing so.”
This is in contrast to the case of Abid Naseer, who the British government has already tried to deport to more contentious ally in the fight against terrorism, Pakistan. Arrested on April 8, 2009 as part of a group of eleven individuals picked up as part of a counter-terrorism operation codenamed Pathway, Naseer has been repeatedly identified in the press and subsequent official reports into the plot as being connected to Al Qaeda. In a previous judgment which highlighted why he could not be deported to Pakistan, the judges concluded, “we are satisfied that Naseer was an Al Qaeda operative who posed and still poses a serious threat to the national security of the United Kingdom.” The same judgment concluded that due the high likelihood of mistreatment if Naseer was returned to Pakistan having been exposed as an Al Qaeda agent, the court “would not be willing to accept confidential assurances as a sufficient safeguard against prohibited ill-treatment in a state in which otherwise there was a real risk that it would occur.”
At the time of the decision, the government did not appear to react, failing to even put Naseer on a control order (something which would have been particularly awkward for the new government which had expressed a great concern with the tactic). It now appears that this might have been part of a knowing strategy to wait until the United States completed its superseding set of charges linked to the so-called Subway Plot allegedly led by Afghan-American Najibullah Zazi. It was already public knowledge that the initial lead to Zazi had come from the United Kingdom, but it now appears as though the United States has repaid the favor for the tip by using the connection as grounds to include Naseer in the indictment linked to Zazi’s plot. In a press release put out on July 7th, the Department of Justice alleged, “Naseer sent messages back and forth to the same email account that ‘Ahmad’ was using to communicate with the American-based al-Qaeda cell.”
Currently, all five men remain in British custody. While this may alleviate security services concerns, in the longer term it is not sustainable that individuals remain in jail without facing a jury. Officials in the UK believe that the men will be eventually deported, but as Babar Ahmad pointed out in an interview published the day after the decision by the ECHR, “whilst in prison I have outlived the the Blair/Brown Labour Government,” something which highlights how long he has been sitting in prison without having been convicted of any crime.
Raff Pantucci is an HSToday.us correspondent based in the UK
Raffaello Pantucci 