The case of the lonely librarian: American injustice for British people
The case of the lonely librarian: American injustice for British people
The Home Secretary’s decision to block Gary McKinnon’s extradition to the US on human rights grounds was heralded as the triumph of British justice, but in the shadow of the high-profile campaign around him, the rights of Talha Ahsan, another Briton who also suffers from Asperger syndrome, were deferred to the US. Is this fair, writes Romil Patel*
Part 1: The domestic battle
Within hours of a high court decision in October 2012, Talha Ahsan and Babar Ahmad were bundled onto a plane under the umbrella ruling of “Abu Hamza and others” and extradited to America. “I am pleased the decision of the court today meant that these men, who used every available opportunity to frustrate and delay the extradition process over many years, could finally be removed,” remarked the home secretary. They have been detained for seven and nine years respectively without trial and neither has ever seen the evidence against them. They are now in pre-trial solitary confinement at a US Supermax prison and if convicted, they face life imprisonment in total isolation, considered by Amnesty International to be “an exceptional measure of last resort”.
A number of high-profile extradition battles from the UK – Gary McKinnon, Christopher Tappin, Richard O’Dwyer and the NatWest Three, to name a few – have given rise to the perception that the Treaty is unbalanced and when considered with the application of the Human Rights Act, bizarre and inexplicable outcomes are produced.
As the longest-serving prisoner held without charge or trial in the UK’s recent history, Babar Ahmad’s case generated widespread publicity. Indeed the “serious, gratuitous and prolonged” battering inflicted on him by the Metropolitan Police and the £60,000 in damages that followed has made it rather impossible to forget. Talha’s tale, however, has received far less media and political attention, which is particularly disturbing since he suffers from Asperger syndrome and the same associative risks as Gary McKinnon, whose extradition to the US was refused by Theresa May a mere 11 days after the removal of “Abu Hamza and others”.
The US accuse him of terrorism-related offences which arise out of his alleged involvement with the now defunct, pro-Islamist militant Azzam series of websites, one of whose servers was based in Connecticut. The indictment against Ahsan alleges the commission of four felonies on British soil between 1997 (when he was just 18-years-old) and 2004, and his extradition to a country which he has never set foot in was formally requested on 15 September 2006. These include “conspiracy to provide material support to terrorists”, “providing material support to terrorists”, and “conspiracy to kill, kidnap, maim or injure persons or damage property in a foreign country.” The places in question are Afghanistan and Chechnya, Russia.
Talha Ahsan was born in 1979 to Bengali parents who settled in Tooting, south London. He received his education at Dulwich College where he developed a passion for the written word before pursuing further studies at the School of Oriental and African Studies (SOAS) where he received a first class honours in Arabic. His mother describes him as “a serious, bookish young man”, and “a very gentle, softly spoken and thoughtful boy”. On the day of his arrest he was scheduled to start training as a librarian.
As the ominous clouds in the sky darken, I bustle in to his father’s freight business and am greeted by a frail old man with a kind face who says: “You must be looking for Hamja.” He takes me through to the adjoining house to meet Talha’s younger brother. Being Asian, I am all too familiar with the customs, and I hastily remove my shoes before being ushered into the library at the back of the house which is packed full of books – from Zadie Smith’s White Teeth to the work of Seamus Heaney – demonstrating the escapism that the English language provides for an individual judged to be “extremely vulnerable” by a psychiatrist. While Hamja’s possessions are scattered across the room, Talha’s pristine books are in perfect order and lay untouched on the shelves. “You can tell which ones are Talha’s,” his brother quips while glancing longingly at the books. His librarian-like tendencies still haunt the house.
A skilled poet, Talha’s public supporters include the Scottish poet AL Kennedy and Four Lions star, Rizwan Ahmed. His poetry is strikingly beautiful, and draws on his life experiences and engagement with politics and spirituality, and shortly before his extradition he won the platinum award for his poem, “Grieving” at the Koestler awards.
Hamja Ahsan with his brother’s possessions from Long Lartin, a maximum security prison.
Acting on behalf of the US government, “the police raided my house in February 2006,” Hamja tells me. “They went through the whole house. They took my camera, mobile phone, diary, homework, my nephew’s cartoons and my Playstation 2 memory card,” he chuckles in disbelief. “One of the police officers said: ‘It looks like I tidied your room up’ before asking where the Qur’ans were. Because Babar took that civil case, they were scared into behaving well. That felt quite violating. Seven years later, I haven’t had anything back.”
The Human Rights Joint Committee, when considering the human rights implications of the UK’s extradition policy said: “When the United Kingdom requests extradition from the United States, the Treaty requires that the UK provide ‘such information as would provide a reasonable basis to believe that the person sought committed the offense for which extradition is requested.’ There is no such requirement for the US when requesting extradition of a person from the UK.
In spite of this, some legal experts such as Ben Keith QC of Five St Andrew’s Hill Chambers say that our extradition arrangements with the US are not one-sided. “In terms of the law there is no imbalance. They have to do exactly the same as Russia and all those places which have horrific human rights records,” he says in a dimly lit conference room that bears more resemblance with a bomb shelter. “There is no special set of rules for America, I don’t think the imbalance exists.” However WikiLeaks founder, Julian Assange would beg to differ having been holed up in the Ecuadorian embassy after seeking asylum there last year.
“My case could be swiftly resolved if Sweden were to guarantee that I would not be extradited to the US or if the British government would guarantee to veto any such extradition to the US,” Assange said on the eve of his anniversary there.
“While I remain hopeful that a diplomatic solution can be reached, or that the Swedish and US authorities will cease their pursuit of me, it remains the case that it is highly unlikely that Sweden or the UK will ever publicly say no to the US in this matter.”
An interview request with the Home Office to discuss the arrangement was not granted, but a spokesperson said: “Extradition is an important way of ensuring that serious crimes are prosecuted in the most effective way so that criminals do not walk free, and victims receive justice. We have effective, fair and balanced extradition arrangements with the US and other international partners.”
When I ask Mr Keith to explain why much of the public thinks that the arrangements are unfair, he says: “Because of the massively successful media campaigning. Really in relation to Gary McKinnon. Theresa May’s decision is a political one. Maybe it was the right thing to do, but within the law the High Court had said a number of times: ‘No, there’s no basis for you not to go to the States.’ The courts were prepared to extradite.”
Talha and Babar were flown across the Atlantic under the controversial terms of the renegotiated 2003 US-UK Extradition Treaty as part of the broader War on Terror, whereby the premise of innocent until proven guilty and the principle of habeas corpus (release from unlawful detention) have been subverted.
“In recent years, this country has abandoned the age-old safeguards of there having to be a prima facie case against the British subject that is being extradited,” explains Pete Weatherby QC of Garden Court North Chambers. “In order to put anyone on trial in this country, that is the standard. It is vital to apply the same standard where there is consideration of someone being put on trial elsewhere.
“The Americans are much more aggressive in their extradition policy so they go after people who in a million years, we would not go after in America nor would they even consider extraditing. If Talha and Babar were American citizens sitting in New York allegedly committing offences on American computers, they would laugh you out of court. It isn’t on an equal footing.”
In May 2011, the US sought the extradition of Richard O’Dwyer, a student at Sheffield Hallam University and founder of TVShack.net who was charged with conspiracy to commit copyright infringement and criminal infringement of copyright by a New York court. As the US embassy website makes clear, no person can be extradited by either the UK or the US unless the alleged offence is a crime in both countries and carries a prison sentence of 12 months or more.
However in August 2011, a letter addressed to Richard’s mother, Julia by the Crown Prosecution Service said: “The US/UK Guidance for Handling Criminal Cases with Concurrent Jurisdiction between the United Kingdom and the United States applies only to ‘the most serious, sensitive or complex cases’. This case was and is not considered to come within that category. The case was known to the UK authorities prior to the US extradition request being made.”
Nonetheless the US maintains that the Treaty is “balanced”, and they point to the Scott Baker report – an independent review of our extradition arrangements with the US led by the former Court of Appeal judge – to back the claims. “One point that I think is widely misunderstood is that people believe that the standards that apply for requests from the two countries are not the same,” says Amy Jeffress, Department of Justice Attaché to the American embassy in London. “The reasonable suspicion standard is what police officers in the UK are required to meet when they arrest a suspect and that is the same as the probable cause standard in the US.”
The US, in fact, says that the Treaty’s reform actually puts them on a level playing field with Britain with regards to extradition. “One of the driving factors was the inequality in the standards that applied for requests from the two countries. The UK required prima facie evidence which, in complex fraud cases, meant that we were supplying boxes and boxes of evidence. It was a cumbersome process not only for the US authorities, but also for the UK to review all of that material and ensure that the Treaty standards were met. So the Treaty was modernised by bringing into effect standards that were thought to be similar.” This may seem fair but quite simply; it shows the inconsistency in the application of standards vis-à-vis the level of evidence required for a British subject to be put on trial in the two jurisdictions, and highlights the revocation of procedural protections. It is unfathomable to think that a British citizen can be prosecuted far more easily by a foreign country rather than by their own one. Evidently Karl Watkin, a British businessman from Newcastle thought so too, which is why he tried – and ultimately failed – to bring a private prosecution against the two terror suspects last year.
The opportunity to argue that one should face trial in the UK is paramount for campaigners seeking to reverse the imbalance, and this right is enshrined in the Magna Carta, the beacon of liberty on which this country was built.
“No Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the Land. We will not deny or defer to any man either Justice or Right.”
While extradition is a vital and necessary tool – and acknowledged as such by those who oppose the UK’s current arrangements with the US – in the cross-border enforcement of crime, it has been grossly misused in denying British people the right to defend themselves in a domestic court for alleged crimes committed on British soil, and families of the victims are furious at the outsourcing of the British justice system to the US. It is not a question of releasing Ahmad or Ahsan, but affording them the right to present their case before a British court of law.
“Extradition is a valid process reserved for fugitives. Talha is not a fugitive,” says Hamja. “It’s just a matter of fairness, logic and common sense that he should have been tried in the UK seven years ago. Britain is not the 51st state of America, it is a sovereign state.”
The burden of being prosecuted by the world’s greatest superpower is so great that “you should be able to argue in a UK court that the UK would be a better forum for any trial before a UK court and that’s not the case. I think most people would think it’s fair that you should be able to say: ‘Look all my witnesses and all the defence material are based in the UK and therefore why should a foreign jurisdiction be a better forum for trial?” says Melanie Riley, Coordinator of Friends Extradited, a not-for-profit organisation set up specifically to change the terms of the extradition arrangements.
“It might be more convenient for prosecutors but it isn’t convenient for a defendant and whilst every defendant is innocent until proven guilty, it’s effectively a summary sentence by extraditing you, rather than allowing you to have your fair time in court.” Ahsan and Ahmad are protected by international law – specifically the European Convention on Human Rights (ECHR), but it is rather perplexing to think that after years of detention, a breach of Article 6 (the entitlement to a fair and public hearing within a reasonable time) was never established.
The men are victims of America’s assertion of “extraterritorial jurisdiction on pure technicalities,” says David Bermingham, one of the NatWest Three who was extradited to the US in 2006, pleaded guilty to wire fraud as part of a plea bargain and subsequently sentenced to 37 months in prison.
“If you actually take half a step back, what’s really alleged here is that these two guys, and possibly one or two others, ran a bunch of websites inciting violent jihad in Chechnya and Afghanistan 10 years ago. Really? Is that something we should be extraditing people to the US for?” he exclaims angrily. “It may well be a serious crime but if it is, my goodness it’s a crime here in the UK, we’ve got some of the most draconian anti-terrorist legislation in the world, what the fuck’s it got to do with America?”
He’s not wrong. Under the Anti-terrorism, Crime and Security Act 2001, the home secretary can indefinitely detain a foreign national suspected of terrorism without charge. The Terrorism Act 2006 extends police powers to hold terrorist suspects from 14 days to 28 days without charge. In other words, the UK authorities have more than adequate powers to investigate any allegations of wrongdoing either by British citizens or non-nationals.
“We have an absolutely one-way relationship with America. Since Tony Blair came into power, we have basically had our heads shoved firmly up successive US presidents’ backside,” Bermingham says, the intensity in his voice rising. “We’ve become a complete and utter lapdog, we’ve given up all international respect, we are a laughing stock around the world now for being lapdogs to America, and it’s about time somebody stood up and said: ‘Hang on a minute, no. You are our greatest ally, but the point about being our greatest ally is that it gives us the ability to say to you, no. No you will not do that, no we will not do that, no that is wrong and we seem utterly incapable of doing that and that’s purely down to moral cowardice on behalf of politicians.”
The blame, however, does not lie solely with the home secretary. Pockets of the press – most notably the Daily Mail – hailed Theresa May’s decision to block Gary McKinnon’s extradition, calling it “a triumph for Gary and British justice” and then proceeded to claim the credit. “When spineless ministers in the last government sought to betray him, in their terror of upsetting the US, we reminded them constantly of their responsibility to a vulnerable Briton,” read the Daily Mail’s comment. “A frightened British citizen has at last been granted his birthright – to be tried, if at all, under the laws of his homeland,” it continued.
Yet barely a week earlier the Mail had sought to deprive Ahsan and Ahmad of this very birthright by portraying them as “unwanted guests”, and said that many Britons will be “rejoicing” in their extradition. The fact that both men were born and raised in Britain demonstrates the absurdity of this claim, and by tarring them with the same brush as Abu Hamza – a criminal who had already been convicted here for seven years for soliciting to murder and stirring up racial hatred and whose case was entirely unrelated to the “others” – the two individuals in question were dealt a cruel blow by the media before being shipped off to the US to suffer a double injustice.
Perhaps they’ll clean their hands of me once there.
And then my country feels I’m wiped away.
– Talha Ahsan
Part 2: The inconsistent application of human rights, plea bargaining and the US prison system
After a decade-long legal battle the home secretary eventually blocked Gary McKinnon’s extradition to the US, despite his confession that he had accessed government computers without authorisation. He was wanted in the US on hacking charges and was described by one prosecutor as “the biggest military computer hack of all time”. If extradited, he could have faced up to six decades in prison and a $2m fine.
In a letter to McKinnon’s legal team, the Home Office said that Theresa May “has given the most careful consideration to all of the material, both medical and otherwise, in this difficult and exceptional case. She has concluded that the ordering of McKinnon’s extradition, and his subsequent removal, would give rise to such risks to his health, and would, in particular, give rise to such a high risk of him ending his life, that a decision to that effect would be incompatible with his human rights under Article 3 [the prohibition of torture and inhuman or degrading treatment]”.
Last year Ahsan made a petition to the European Court of Human Rights (ECtHR) which considered several factors, such as the conditions of Supermax prisons (specifically in relation to ADX Florence), the effect it would have on his mental health and the damaging impact the sentence would have on him due to long periods of isolation without any human contact. The ECtHR stated: “A psychiatrist had predicted a high risk of serious depression leading to suicide if the third applicant (Ahsan) were to be extradited and placed in solitary confinement for a long period.” Yet in an incredulous decision – much to the dismay of Britain’s leading human rights lawyers – the court found that there would be no violation of Ahsan’s Article 3 right in spite of the medical evidence that pointed to the contrary, and said: “Those mental health conditions have not prevented (Ahsan) being detained in high-security prisons in the United Kingdom”
“Long Lartin is nothing like prison conditions in the US,” Hamja tells me, recounting the visits to his brother while he was imprisoned over here. “It’s rehabilitative and there is access to education. Supermax doesn’t rehabilitate anyone. Over 50 per cent of suicides take place in solitary confinement,” he says while pushing a bowl full of Hula Hoops towards me.
Following the court’s decision, the UN special rapporteur on torture contacted the British government to voice his concerns and he warned that the extraditions would breach the UN Convention Against Torture. “I think there is very good arguments that solitary confinement and SAMs (special administrative measures, which impose strict restrictions on communication with other inmates or the outside world) would constitute torture and prevent the UK from extraditing these men,” he said.
“For 22 to 23 hours a day they are left to look at a wall with no meaningful social contact with anybody, maybe one hour a day exercising by themselves. There is nothing the person can do to alleviate his isolation because it is not disciplinary but completely arbitrary. It is imposed whether they behave or not because of the offence they are charged with, a penalty before being judged, which goes against a presumption of innocence. When solitary confinement is indefinite and prolonged the psychological abuse suffered can be very severe.
Ahsan’s current home, the Northern Correctional Institution, which is the only Supermax prison in Connecticut is described as “a prison within a prison” and an “extremely violent institution” in a documentary by Yale entitled “The Worst of the Worst”, and he is housed beside inmates on Death Row. If he is found guilty, he faces a life sentence without any chance of parole and will spend the rest of his days in solitary confinement in ADX Florence, Colorado with very little human contact, but the ECtHR rejects this, saying that these inmates have contact with prison staff, their legal representatives and each other if they use the air ventilation as a “voice conduit.” A former warden of the prison described it as “a clean version of hell”. The ECtHR had four years to consider the decision and ruled that Ahsan could be extradited as Supermax prisons would not violate his rights, but it did not even spell Talha Ahsan’s name right, let alone properly defend his rights.
“I think solitary confinement is abhorrent,” says Ben Cooper QC of Doughty Street Chambers and barrister for Ahsan, Ahmad and O’Dwyer. “For someone who is ill, such as Talha, it simply shouldn’t be permitted. We should have sought an assurance that he wouldn’t be held in solitary confinement.”
Despite his firm stance that the Treaty is fair, Mr Keith says: “Whilst there is nothing wrong with the procedures, I’m not a fan of the American penal estate and the American justice system. I think the US prison regime is very draconian I mean you just look at some of the pictures of some of the Supermax prisons and Guantanamo and it’s horrific. The courts have said that they [US prisons] are not in breach of Article 3, which I think is a shame. It’s worse in fact because it’s deliberate, they could have good prisons but they choose to be brutal.”
As the UN special rapporteur points out, indefinite detention has devastating effects and it puts undue pressure on an individual to plea bargain. “When you’re in detention without trial, there’s no light at the end of the tunnel,” says Hamja. “I suppose they use pre-trial solitary confinement to break people down as a kind of slow legalised torture, so they go for plea bargains.” Given that Ahsan and Ahmad’s trial has been postponed until March 2014 due to the “size and complexity” of the trial coupled with the fact that they have been held for so long, it seems a plausible explanation.
“Come next February, if they [Talha and Babar] haven’t decided to enter their guilty plea you can be damn sure it’ll be put back for another year,” says Bermingham. “The government don’t want it to go to trial, so what they have on their side is time. They’ll just keep them in prison indefinitely, until such time as these guys realise the only way they’re coming home, ever, is by signing a piece of paper,” he says. The frustration in his voice is clear. Under the terms of the US government’s original indictment, each of the NatWest Three defendants faced seven charges of wire fraud with the prospect of nine years’ imprisonment. In 2007 they struck a deal pleading guilty to one count of wire fraud and each received a 37-month prison sentence. Last year the extradited businessman, Christopher Tappin agreed a plea bargain deal with US prosecutors to avoid a 35-year jail term. A few weeks later Richard O’Dwyer signed a deal known as a “deferred prosecution agreement” whereby he agreed not to break any laws, stay in contact with a US correctional officer for six months and pay a £20,000 fine.
“It’s like boiling a frog one degree at a time. The system will slowly eat away at your finances, it will eat away at your psychology and eventually you just say fuck it, I’ve had enough, just give me a piece of paper I’ll sign whatever you want. You just want it to be over,” says Bermingham.
So once extradited, the highly vulnerable Ahsan has been made to suffer further injustices by being subjected to horrific prison conditions which, in turn, puts excessive pressure on him to plea bargain – thereby accepting guilt – in return for a significantly reduced sentence. Throw into the mix the fact that few people have the millions of dollars it takes to fight a complex legal battle such as Ahsan’s in the US and you have a system that ensures the inevitability of only one outcome. A plea bargain in the UK can result in a reduction of the prison sentence by one-third, while a plea bargain in the US can result in a dramatically reduced sentence.
“If you don’t enter a plea bargain, then the prosecutors play hardball and they will push for the maximum sentence and if they manage just to get one thing to stick, the sentence there would be astronomic,” says Melanie Riley.
Many people will look at the government’s fruitless attempts to deport a foreign national, Abu Qatada from Britain and point to the fact that his human rights have been staunchly upheld as he has seen off four successive home secretaries while Talha Ahsan, a Briton continues to suffer an “impossible justice”, as legal expert, Dr Ian Patel puts it in his piece for the New Statesman.
One of the most radical examples of human rights protections that has caused outrage in the UK is the protection of Abu Qatada’s Article 6 right, which guarantees him the right to a fair trial in his native Jordan. This has led to the UK government seeking exhaustive assurances to ensure that evidence obtained by torture will not be used to prosecute him. Yet while the UK government has gone to great lengths to negotiate a UK-Jordan Treaty on Mutual Legal Assistances to secure the rights of one foreign national, we blindly accept the presumption of good faith – which forms part of the “theology of extradition law” according to Alun Jones QC of Great James Street Chambers – from the US in extradition requests.
The Metropolitan Police’s infamous assault on Babar Ahmad was so vicious that the psychology of the officers must be questioned to ask how they were able to get themselves so hyped up in order for it to take place at all. “There’s something very odd there,” says Gareth Peirce, Ahsan and Ahmad’s lawyer who compares their behaviour with attack dogs. “Who has psyched up whom and why? Part of it is obviously on the basis of utterly false information. So where did it come from? Did it come from torture somewhere?” she asks chillingly. “It was happening at the end of 2003 and you have to bear in mind that there were people that Babar knew who were in Guantanamo and who had been held in prisons in Afghanistan. It’s a very disturbing entry into the case.”
In other words, if the courts are so opposed to torture tainted evidence, why did they not bother to ask where the evidence to prosecute Babar Ahmad came from and whether this breaches his Article 6 rights? It seems that the presumption of good faith in extradition cases prevents the linear and consistent application of human rights, which leads to a denial of justice for British people while foreign nationals enjoy the rights of British citizenship.
While Theresa May’s recently tabled amendments such as the forum bar and the transfer of her power to the courts to block extradition to the US have been both welcomed and criticised, many people – notably the victim’s families – will feel that a complete overhaul of the US-UK Extradition Treaty is required to protect the rights of British people so that they can be tried in their own country where justice can be seen to be done by the law of the land, rather than by politicians who have their own agenda and are susceptible to xenophobic reporting from parts of the press. It seems that we have not learnt anything from the Guantanamo Bay experience, or the cases of the two Libyans who were rendited to Libya with the complicity of the UK government knowing full well they will all be tortured and face detention without trial for years if not decades. Meanwhile British men Talha Ahsan and Babar Ahmad, or Prisoner 393183 and Prisoner 393184 as they are now known, continue to languish at a Supermax prison in a foreign land without trial.
*Romil Patel is a freelance journalist based in London. He recently completed his MA in Newspaper Journalism at City University and is carrying out a placement with BBC Asian Network.