Fahad Ansari
The extradition of Babar Ahmad, Syed Talha Ahsan, Khalid al-Fawwaz, Adel Abdul Bary and Abu Hamza to the US to face terrorism charges while refusing to extradite white British citizen Gary McKinnon exposes British hypocrisy and injustice.
In 1993, a black teenager Stephen Lawrence was murdered in London in a landmark case that exposed the institutional racism within the Metropolitan police. Although Britain’s black community was for decades all too aware of the consequences of institutional racism and police brutality within the system, it took the tragic murder of Lawrence to force politicians, the media and the general public to officially recognize these as facts, and not the perceptions of a marginalized community.
Similarly, October 2012 will also be remembered by future generations as the year in which Islamophobia was confirmed as state policy in Britain. It was a month in which the Muslim community was effectively told by the government and the courts that its views and opinions were of no interest to them. Moreover, its efforts to participate in civic engagement and political activism were completely ignored in the process.
On October 5, five Muslim men were extradited to the US on terrorism allegations after they had already been detained for a collective total of 49 years without trial in the UK. Two of those men, Babar Ahmad and Talha Ahsan, gained a kind of notoriety as the longest detained without trial British citizens in the modern history of the country. They stand accused of operating a family of websites from the UK in the 1990s that allegedly raised funds for and provided information about rebels fighting Russian occupation in Chechnya and the civil war in Afghanistan.
Two others, Saudi dissident Khalid al-Fawwaz and Egyptian human rights lawyer Adel Abdul Bary, were detained for 14 years without trial. They are accused of involvement in the 1998 US embassy bombings in Kenya and Tanzania. The fifth man is Abu Hamza, the Egyptian-born British preacher, who is accused of setting up a training camp in Oregon (US) and involvement in a hostage crisis in Yemen in 1998 in which three British citizens were killed.
The common thread in all five cases is that the men could have been prosecuted in the UK but the British authorities chose not to do so on the basis that there was insufficient evidence to guarantee a realistic prospect of conviction, the litmus test for deciding whether to charge a suspect or not. In the cases of Ahmad, Fawwaz and Bary, all were initially arrested and investigated for the offences in question but released without charge, only to be rearrested in relation to the same offences at the behest of the US government. This begs the question: how can such little evidence be used to detain these men for extremely lengthy periods of time without trial in maximum security facilities and then allow them to be extradited to a foreign jurisdiction, where they are likely to be held in 23-hour solitary confinement for an entire year before trial even begins. If convicted, they will be incarcerated in a Supermax prison, condemned by the UN as amounting to torture, and all may very well die behind bars.
The extradition came following a decision by the European Court of Human Rights to reject the men’s request for a referral of its earlier decision in April 2012 to the Grand Chamber, ruling that there would be “no violation of the applicants’ rights if extradited to stand trial in the United States.” Between that decision and the extradition however, there was a flurry of activity in the High Court with all five men applying for injunctions to halt the extraditions on various grounds ranging from medical health problems, prison conditions in the US, and the right to be tried in the UK. Even the UN Special Rapporteur on Torture wrote to the Court informing them that to extradite the men to the US would expose them to a real risk of being exposed to torture, inhuman and degrading treatment due to the prison conditions they would be held in.
The key issue for Ahmad and Ahsan was their right to be tried in the UK. All the alleged criminal conduct is said to have taken place in the UK with only the sheer technicality of the sites being hosted by a US server (one of many) for a period of 14 months over a period of several years. Ahmad was initially arrested in December 2003 but released without charge after less than a week. He was rearrested in August 2004 following the US extradition request. In 2005, the most senior extradition judge in the country at the time, Judge Timothy Workman, described Ahmad’s case as “difficult and troubling.” He said that Ahmad “is a British citizen who is alleged to have committed offences which if the evidence were available, could have been prosecuted in this country.” Then after six years of further detention, in November 2011, the Crown Prosecution Service (CPS) admitted to the men’s lawyers that it had never seen or reviewed all the material seized from Ahmad’s home, the Metropolitan police having secretly sent it to their American counterparts. Until that point, the CPS had repeatedly insisted that there was insufficient evidence to prosecute Ahmad in the UK. In light of that revelation, lawyers for Ahmad and Ahsan made fresh representations to the CPS on the basis of the material sent to the US and the developing prosecuting policy under which several individuals had been successfully prosecuted for conduct identical to what Ahmad and Ahsan are accused of. By the time the decision from Strasbourg had arrived, the CPS had still not come to a new decision. Within the same time, a business tycoon Karl Watkin commenced his own private prosecution of Ahmad and Ahsan on the principled basis that they should be tried in the UK instead of the British justice system being subcontracted to a foreign jurisdiction. For this, he too required the consent of the Director of Public Prosecutions (DPP).
Yet, on the same day that the men applied for injunctions against the extradition on October 1, 2012, the DPP announced his refusal to allow the private prosecution. Within hours of this decision, he also refused to prosecute the men himself stating that he was not satisfied that there was sufficient evidence to guarantee a realistic prospect of conviction. The lawyers sought to judicially review those decisions but in a process that normally takes months, the court gave the legal team less than 24 hours notice to prepare for the hearing. In court, arguments that domestic prosecution was in the public interest were flatly rejected. The judges chose to dismiss the concerns of two parliamentary committees, senior politicians from all parties, the mayor of London and almost 150,000 members of the British public who signed a petition calling for Babar to be put on trial in the UK. Medical evidence in the form of a consultant psychiatric report that Ahsan, who suffers from Asperger’s Syndrome, would be suicidal in the anticipated prison conditions was also rejected. All of this had been considered by the European Court, the judges said. But suggestions that the European Court may have acted improperly in refusing to accept submissions from no less than 25 NGOs and over 150 legal scholars including the UN Special Rapporteur on Torture in relation to the prison conditions, were criticized by the judges. It seemed Strasbourg could only be derided by government ministers and members of the Far Right.
The more detailed and persuading the representations of the cream of England’s human rights lawyers became, the more hurried the judges seemed until finally their decision was given on the afternoon of October 5. By night, all five men were on board US planes to America. Some light was then shed on why the judges may have been in such a rush; it was reported that the US planes had landed four days earlier.
The extraditions were followed by a huge outpouring of emotion from the Muslim community with even those who had no sympathies with any of the men, angry at the manner in which the system had been manipulated to give a sense of due process having been followed. Retired barrister Frances Webber, who previously represented Fawwaz, described the farcical system as a legal replacement for extraordinary rendition. Ahmad’s father described the procedure as “more befitting of a third world country than one of the world’s oldest democracies.” Ahmad’s own parting comment was that “By exposing the fallacy of the UK’s extradition arrangements with the US, I leave with my head held high having won the moral victory.”
No campaign in living memory has captured the political imagination of Britain’s Muslims as the case of Babar Ahmad. Those who had never signed a petition in their life suddenly felt a surge of empowerment as they not only signed and collected signatures for petitions but also lobbied MPs, wrote to ministers and the DPP, attended demonstrations and vigils, and organised events to raise awareness of extradition. By the time news emerged on October 6 that all five men had entered “Not Guilty” pleas in their arraignment hearings in the US, sadness had turned to frustration with the system and despondency that despite all efforts, the extraditions went ahead. It was only belief in divine justice and decree that kept their spirits alive.
On October 16, that frustration turned to anger as the Home Secretary Theresa May announced that Gary McKinnon, a British citizen who has admitted hacking into the Pentagon, would not be extradited because of his human rights due to medical evidence that he was likely to commit suicide upon extradition. It was not that the Muslim community wanted to see McKinnon extradited, quite the opposite. But to witness such blatant double standards, especially when compared to the case of Talha Ahsan who is in an identical position as McKinnon save for the fact that he has denied his guilt, was too much to bear. Ms. May compounded her folly and arrogance by simultaneously announcing that the extradition laws would be amended to allow for domestic prosecutions where the crime alleged was said to have been committed in the UK, something which Ahmad and Ahsan supporters had been campaigning for and which would have effectively stopped their extraditions.
The point was not lost on many in the wider society with numerous politicians, celebrities and journalists commenting that May’s about face came within 11 days of the extradition of five Muslim men. David Bermingham, who was himself extradited under this Treaty in 2006, wrote in the Times that he received a letter from Ahmad a day before he was extradited in which he said, “Once I’m gone, the law will be changed, so it was worth it.”
Ahmad knew this would happen. Ahsan knew it. And the Muslim community knew it. But anticipating corruption and racism and witnessing it in action are two completely different things. There is enormous anger in the community and it seems that because it has been thus far contained, the government is content to weather the storm. That is their mistake. Like the black community, this anger will resurface, in one form or another, until the Muslims are accepted as equal citizens but for now, as the Ahmad family stated, some British citizens are more equal than others.
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