by Penny Dreadfull
2 July 2012
Babar Ahmad: Accused by U.S. of running a website that solicited funds for terrorist organisations, including al-Qaeda and Chechen rebels on U.S. web servers (whilst living in the U.K. as a U.K. citizen)
Talha Ahsan: Accused of collaborating with Babar Ahmad, also a U.K. citizen
Richard O’Dwyer: Accused of alleged copyright infringement on his website TVShack.net. Was not on US web servers. U.K. citizen
Gary McKinnon: Accused of ‘breaking security’ into NASA and Pentagon websites, even though there were no firewalls in place, nor any passwords necessary to access information. Also, left cheeky messages about how bad their security is. A U.K. citizen.
I will tell you up front that I have no solid opinion on anyone’s innocence or guilt. But, I do believe in “innocent untill proven guilty”. As long as I have studied these cases, most particularly Gary McKinnon’s, I have never had the opportunity to meet with any one of the the four accused. What I do have a strong opinion about is how the extradition act, which has never been balanced between the United States and the United Kingdom, has let the pendulum swing to the far opposite direction, and now the US has the upper hand in all things extradition. I also sincerely believe that what is good for the goose is good for the gander, and that if the US is going to protect its citizens from extradition to the UK, then the UK should jolly well do the same. I smell a rat.
At one time, the scales were tipped against the United States in the extradition agreement, as the 1870 Extradition Act required that the United Kingdom merely had to show probable cause and did not have to provide the more onerous prima facie (at first face, at first appearance) evidence to extradite from the US. Then, in 2003, the Extradition Treaty went completely pear-shaped and the boot was now on the other foot. The US could extradite without prima facie evidence and only needs to show probable cause. An aim of the doctrine of prima facie is to prevent litigants from bringing spurious charges which simply waste all other parties’ time. I should think that if anyone’s time has been wasted, it is Babar Ahmad’s and Talha Ahsan’s. They are held, without charge, and have been for 8 and 6 years respectively. And only on “probable cause”, no proof. The US sort of seems to go by the ‘if it looks like a duck’ logic. If he looks like a Muslim….
How big was the theorhetical gun that US held to UK’s head to sign the 2003 Extradition Treaty is what I want to know. It never has seemed “kosher” to me that Britain would roll over to such an agreement in the first place. Especially in light of the fact that extradition law was lop-sided for nearly one and a half centuries on the side of the UK. Wouldn’t common sense have prevailed so that the agreement would be equal? Most importantly, would it not have made more sense to say in the agreement that the person(s) to be extradited would be tried on their own soil FIRST to find out if there truly was not only probable cause, prima facie, a valid reason, for extradition to the country that wanted the accused? I read a post by “Akkas” somewhere on the internet, I apologise for not having full name or the site where I found it: “The US-UK Extradition Treaty was signed by the Labour government in IN SECRET. At no point during the negotiations was Parliament consulted and the text of the Treaty was only made public after it was signed. It was passed into law without any parliamentary debate or scrutiny.” This only strengthens my convictions. We ALL want to know WHY and we want it FIXED! Any country should put the safety and interests of its countrymen first, so why didn’t Britain do so when asked(?) to sign this Treaty?
By Hicham Yezza, FreeTalha.org:
“Indeed, that these men – who remain innocent until further notice – have been allowed to languish in prison for years without a public outcry is a sad indictment of how far we’ve slumped towards accepting an official line that tells us we’re facing an overwhelming, imminent “security threat” about to engulf us all, and that we must sell our freedoms – hard-earned over centuries of struggle against the powerful – on the cheap to keep this threat at bay.” – It would seem that we should be equally concerned about the threat of becoming a nation who are willing to sell one, innocent or not, to prove we’re protecting our country when indeed we are just selling our souls. How any politician can sleep at night has me flummoxed. That goes equally for US as well as UK.
In my research, I have found a portion of transcript of the House of Commons extradition debate (http://www.freebabarahmad.com/the-story/latest-news/item/269-house-of-commons-extradition-debate) in which a statement made by David Davies, Conservative, goes as follows: “Let me look at the other side—American reciprocity. Much of this is about reciprocity, so how have the Americans behaved? My hon. Friend Richard Ottaway, who is the Chairman of the Foreign Affairs Committee, asked how many cases have been refused. I have worked in the murky world of international relations in the Foreign Office, and I know that the number of requests refused is zero—but of course it does not work like that. If one wants to turn something down, one rings up one’s ally and says, “Would you mind withdrawing it?” The US subsequently withdrew 5% of its applications, whereas we withdrew 20% of ours. I wonder why. I do not think that the Americans can claim a very great moral high ground in terms of reciprocity.” This just makes me angrier. How is 5% anywhere equal to 20%?? And, I can understand whilst perhaps on the strength of Babar Ahmad’s alleged crimes that he may not be considered for a withdrawal of impending extradition, I still believe he is entitled to a UK trial at the very least before being packed off to the US, where he will sit in prison still, on the US taxpayer’s dime, whilst awaiting a trial that will probably have found him guilty in their minds before the final gavel falls, simply because he was extradited. Pardon me if I don’t believe too keenly in the US trial and jury system. I’ve seen too many instances where not enough was done to ensure a proper verdict.
On the same transcript we have this from Caroline Lucas, Green Party: ” Interestingly, I have seen extracts from the European Court interim decision on the cases of Babar and Talha. In paragraph 175, it is clear that the European Court has had from the UK Government an acknowledgement that they could be tried here, which runs counter to what is generally asserted. Moreover, Babar’s lawyers also point out that other comparable prosecutions are proceeding in the UK. Nevertheless, in July 2004 and December 2006, the CPS and the Attorney-General declared that there was insufficient evident to charge Babar Ahmad with any criminal offence under UK law and that he should therefore be extradited.” Ah, so, if there is not sufficient evidence to charge him, then let us just ship him off to the US and wash our hands of the problem? Face. Palm.
Also by Caroline Lucas, Green Party: “Let me say a little more about the significance of the current role of the European Court in Babar’s case. The European Court of Human Rights has been wrestling with fundamental issues that relate not just to Babar Ahmad’s case but to many others for the past four years. The final decision is expected imminently. The European Court has been considering two key issues: whether the use of extreme isolation for prisoners in prisons in the US before trial and post-trial amounts to a violation of article 3 of the European convention on human rights—the article prohibiting torture—and whether the length of sentences in the US, in particular the imposition of life imprisonment without parole or of 80 to 100 years, also violates article 3 of the convention. Whether or not the European Court finds for the applicants, in which case the UK cannot extradite them as long as those two potential fates await them, it is shocking that things have come to this. Courts here and the court in Europe have expressed their concern that what faces UK citizens if they are extradited to the US in a number of cases might arguably constitute what the law defines as torture.” Yes, it is shocking that it has come to this, however, if it will save these men further pain and torture, then I hope that the European Court finds for them.
In the cases of Babar Ahmad and Talha Ahsan, I have looked to find if either of them have tried presenting a writ of Habeas Corpus, and so far cannot find out if it is an avenue they or their legal representatives have tried. From Wikipedia:
“Habeas corpus (Latin: “you must present the person in court”) is a writ (legal action) which requires a person under arrest to be brought before a judge or into court. This ensures that a prisoner can be released from unlawful detention, in other words, detention lacking sufficient cause or evidence. The remedy can be sought by the prisoner or by another person coming to the prisoner’s aid. The legal right to apply for a habeas corpus is also called by the same name. This right originated in the English legal system to assist wealthy landowners, but it is now available in many nations. It has historically been an important legal instrument safeguarding individual freedom of certain individuals against arbitrary state action.
A writ of habeas corpus, also known as the Great Writ, is a summons with the force of a court order; it is addressed to the custodian (a prison official for example) and demands that a prisoner be taken before the court, and that the custodian present proof of authority, allowing the court to determine whether the custodian has lawful authority to detain the person. If the custodian does not have authority to detain the prisoner, then they must be released from custody. The prisoner, or another person acting on his or her behalf, may petition the court, or a judge, for a writ of habeas corpus. One reason for the writ to be sought by a person other than the prisoner is that the detainee might be held incommunicado. Most civil law jurisdictions provide a similar remedy for those unlawfully detained, but this is not always called “habeas corpus”.
Habeas corpus has certain limitations. It is technically only a procedural remedy; it is a guarantee against any detention that is forbidden by law, but it does not necessarily protect other rights, such as the entitlement to a fair trial. So if an imposition such as internment without trial is permitted by the law then habeas corpus may not be a useful remedy. Furthermore, in many countries, the process may be suspended due to a national emergency.
The right to petition for a writ of habeas corpus has nonetheless long been celebrated as the most efficient safeguard of the liberty of the subject. The jurist Albert Venn Dicey wrote that the British Habeas Corpus Acts “declare no principle and define no rights, but they are for practical purposes worth a hundred constitutional articles guaranteeing individual liberty”.
As far as I can tell, it seems a perfect thing to do. There is no sufficient evidence, as the Attorney-General declared above (see Caroline Lucas, Green Party, 1st paragraph of her part in the House of Commons debate). At one time in British history, it was used quite extensively. If it isn’t being used, it’s a shame. I’d try nearly anything once if I were faced with these men’s futures.
In closing, again, I do not presume any one of these four men’s complete and utter innocence. I’m not a colleague, family member, or close friend of any one of them. Nor am I a US lawyer, UK barrister, or judge. But, as a person who believes in Human Rights, I believe that they are innocent untill proven guilty by a jury of their peers. I do believe that it is unfair to extradite a person, unless caught dead-to-rights of committing a blatant terrorist act, from their own country without a fair trial. I believe that the US should send their own legal team to the UK, hold a proper trial, and then, if found guilty beyond a shadow of a doubt, then and only then, would they be extradited. I also believe that holding a person in prison without charge is the most detrimental and serious of offences and that Babar Ahmad and Talha Ahsan, if the UK are too concerned, should at least be free on house arrest, pending trial date. How is it that a proven US paedophile gets to run the streets of the UK whilst these men, whom have not been yet proven, sit in prison? There is so much I have yet to learn, I suppose, but what I believe in my heart is that Gary McKinnon, Richard O’Dwyer, Babar Ahmad, and Talha Ahsan are innocent untill proven guilty, and if any one of them or none are guilty, it should be settled in a UK court of law.
And…the US and UK really need to re-work the Extradition Treaty into a more fair and equatable one. Full stop.