"Weak but clever judges can be intellectually dishonest, making decisions which will please the powers that be and rock no boats"
– Helena Kennedy, Just Law, 2004
Most people in Britain haven't yet woken up to the bleak awfulness of the extradition of Babar Ahmad, Talha Ahsan, Abu Hamza, Adel Abdul Bary and Khaled al-Fawwaz to the US on "terrorism" charges.
The men were put on planes that left the UK in the first minutes of Saturday 6th October, just after midnight. Two High Court judges in London had given the go-ahead for the extradition less than 10 hours earlier.
Lawyers for two of the men - Ahmad and Ahsan - had fought hard to win them the right to a UK trial. Both men are British citizens. Both were living in Britain throughout the period covered by the charges against them. They probably wouldn't have got a perfectly fair trial in Britain – "terrorism" suspects rarely do. But a British court would have steered clear of some of the pitfalls into which US justice routinely tumbles.
The men would not have come to court broken by mind-destroying conditions of pre-trial detention. Their lawyers would not have had to reckon with prosecution witnesses compelled into the stand by US-style "plea bargains" – bargains that are made under the threat of decades of solitary confinement, and can be reversed if the witnesses don't keep to their side of the deal. British defence lawyers would also have stood a much better chance then their US counterparts of preventing evidence tainted by other forms of torture from being put before the jury.
For Babar Ahmad and Talha Ahsan and their families, the bottom line is sharp and cruel. Ahmad and Ahsan have already been detained without charge in British jails for over 8 years and six years respectively. If convicted in Britain they could reasonably hope that the court, taking this into account, would either allow them to walk free or sentence them to at most a further year or two in jail. If convicted in the US, they can reasonably expect a "lifetime-plus" sentence and can expect to serve much or all of it in isolation.
The conviction rate for federal charges in the US is in excess of 90%. The conviction rate for terrorism charges is 100%. So the two British High Court judges who spent a few October days looking at Ahmad and Ahsan's cases along with the three other extradition cases were settling the men's fates as surely as any Old Bailey jury.
The least they could have done was to foster an impression of fairness. Had they done any such thing the US Department of Justice would have felt seriously let down. Apparently blessed by second sight, it had already sent two planes to Britain in anticipation of the judgment.
The judges made it clear from the outset that, if they ruled against the applicants, there could be no appeal. In these circumstances they should have been especially punctilious in reaching their decision. Instead, they acted as if their main concern was to try not to keep the planes waiting.
The judges were asked to consider requests by Ahmad and Ahsan and the other three applicants for a stay on their extradition and for permission to apply for a judicial review.
Four of the men - Babar Ahmad, Talha Ahsan, Adel Abdul Bary and Khaled al-Fawwaz – raised issues relating to prison conditions they would experience at ADX Florence, Colorado. Abu Hamza is not at risk of being sent to ADX Florence for more than a short period, since the prison would be unable to accommodate his physical disabilities. He is nevertheless at risk of being held in isolation elsewhere in the US prison system. However, his application focussed instead on new medical evidence showing that he is now unfit to plead.
Nome of the men were in court to hear the arguments. Instead, they were kept at Long Lartin prison in Worcestershire, Abu Hamza having been transferred there from Belmarsh prison a few days previously to join his co-appellants under a lockdown regime introduced for the duration of court hearing.
All five men had already lost an appeal to the European Court of Human Rights to block their extradition to the US because of the likelihood of solitary confinement and excessively long sentences. The judgment was given on 10 April 2012. It was a controversial judgment with far-reaching implications, but the court nevertheless announced on 24 September that it would not allow the men's request for their cases to be referred to the court's Grand Chamber. The UN Special Rapporteur on Torture, the American Civil Liberties Union, the Center for Constitutional Rights and many other human rights groups expressed surprise and disappointment at the decision.
Besides asking the High Court in London to look again at the concerns about US prison conditions, Babar Ahmad and Talha Ahsan applied for a judicial review of the decision not to prosecute them in the US.
The hearing took place on 2-4 October in the Royal Courts of Justice before two judges - Sir John Thomas, President of the Queen’s Bench Division, and Mr Justice Ouseley.
It's never easy to understand what happens in a court unless you are present. Neither the judgment nor media reports can adequately convey the dynamics of a court-room. But there is now an alternative to the public gallery.
In December 2010 a district judge in London responded to public interest in Julian Assange's bail hearing by allowing reporters to tweet from his court. The Lord Chief Justice then issued guidance opening the way for more general tweeting, texting and emailing from courts. For the moment, it's the nearest you can get to being in court without being in court.
Tweets from reporters at the extradition hearing revealed a show trial. Show, because it was conducted for show; trial, because its effect on the applicants was as serious and permanent as any trial.
Tweet by tweet, the bench was shown intervening with comments implacably hostile to the applicants. The judges had no need to intervene in this way in order to facilitate the decision expected of them. The judgment was in the end theirs to write. The only impact their comments might be expected to have was upon the media perception of the extradition.
On the second day of the proceedings, soon after the court began to look at Ahmad and Ahsan's cases, BBC's Steve Swann reported Judge Sir John Thomas as saying:
"It's a case where the defendant is trying to dictate where he is prosecuted."
It's hard to imagine a more skewed and prejudicial way to describe a defendant's attempt, through legal process, to secure a prosecution in his own country instead of overseas.
Later that day, the court heard that police claimed to have passed the bulk of the evidence on Babar Ahmad to the Crown Prosecution Service (CPS).
But the CPS had said in November 2011, in a letter to Ahmad's lawyer, that it had reviewed only "some of the material" and that "a significant amount" had not been reviewed. It appeared from this and subsequent statements that evidence gathered by the Metropolitan Police had been sent straight to the US without being passed to the CPS.
Keir Starmer QC, Director of Public Prosecutions, confirmed this in a statement issued on 1 October saying:
"So far as any material held by the police is concerned, in 2004 only a small number of documents relating to Mr Ahmad were submitted to the CPS for advice (there has never been a domestic investigation into Mr Ahsan)."
"I have received written confirmation that the Metropolitan Police Service do not intend to refer any further documents or other material to the CPS for consideration."
These statements appear to be in flat contradiction to the statements made in court a couple of days later.
Early in the last day of the proceedings, Steve Swann, in court to report for the BBC, told his Twitter followers that a judge had asked:
"Why can't Babar Ahmad be tried in US first and later in the UK?"
It's the kind of question an internet troll might ask. It assumes there is no particular reason to prefer prosecution in the UK over prosecution in the US. It disregards the issue of double jeopardy – a serious concern even in jurisdictions like the UK that allow it in exceptional circumstances. It disregards the extreme length of the sentence likely to be imposed in the US.
Later, according to Steve Swann, a judge asserted that the US was "ready, willing and able to try these people."
The implication seems to be that it is right and natural to outsource the trial of British citizens to any country that expresses a willingness to take the job on. But there seems little real reason to think that US prosecutors are ready for the case to go to trial. US commentators anticipate lengthy delays before this happens.
In challenging the failure of any British case against Ahmad and Ahsan to get off the ground, the men's lawyers asked the judges to look both at the failure of the CPS to bring a prosecution and at the DPP's refusal to give the go-ahead to a private prosecution that businessman Karl Watkin had attempted to bring under the Terrorism Act 2000.
Terrorism offences have an unusual status in British law. Prosecutions for these offences can go ahead in England and Wales only if approved by the Director of Public Prosecutions (DPP). If the offences involve the affairs of another country, as in the Ahmad and Ahsan cases, prosecutions also require the consent of the Attorney General. Unlike the DPP, the Attorney General is a government minister. The post is currently held by Dominic Grieve QC MP. The Attorney General's consent is only required for prosecutions for terrorism offences, offences under the Official Secrets Act and a few other serious offences.
British law defines terrorism and terrorism offences in a wide and politicised way. The involvement of the Attorney General in decisions to prosecute provides a potential safeguard against prosecutions that could be embarrassing for the government. Recent cases in which successive Attorneys General have chosen not to exercise their veto are instructive. For example, proceedings were allowed to go ahead against a Libyan refugee accused of involvement in resistance to the Gaddafi regime, leading to the refugee's conviction in January 2007.
The DPP announced on 1 October, after consultation with the Attorney General, that Karl Watkin's attempt to prosecute Ahmad and Ahsan privately under the Terrorism Act 2000 would not be allowed to proceed. Karl Watkin responded by attempting to prosecute them for a less politicised offence – soliciting to murder. That meant that the consent of the DPP and the Attorney General wasn't needed.
Karl Watkin's attempt to summons Babar Ahmad and Talha Ahsan came before Judge Howard Riddle at Westminster Magistrates Court. The court's decision was dated 3 October and handed down on the morning of 4 October, while the application for judicial review at the High Court was already in progress.
The US indictments against Ahmad and Ahsan include the charge that they had conspired to "kill, kidnap, maim or injure persons or damage property in a foreign country." But Judge Howard Riddle ruled that the evidence supplied to him by Karl Watkin "did not provide the essential ingredients of soliciting to murder."
He went on to note that evidence "in most applications for a summons is not required." But he questioned whether Karl Watkin genuinely intended to prosecute the case and said that he was satisfied that that the purpose of the proceedings was to stop or delay extradition, coming when "almost all other ways of resisting extradition have been exhausted."
He might as easily have said that the move came when all other efforts to see justice done in a British court had been exhausted. He might have added that Ahmad and Ahsan had said consistently over many years that they wished to answer the charges in a British court. He might have said that people sympathetic to that wish had made every effort to press for a public prosecution. He might have noted that, eleventh hour though the application was, it could hardly have been made any sooner, since the CPS had claimed for much of the last year to be reviewing its decision on prosecution. For all these reasons, it was most unlikely that Karl Watkin would have failed to continue with his prosecution, had he been granted permission to embark on it.
The judge might have said any of that, but he didn't need to. Instead, he closed his judgment with the sentence:
"I have a discretion, and I exercise it by refusing the application."
Back in the High Court, the judges began their attack on Karl Watkin on the afternoon of 4 October.
Addressing Karl Watkin's counsel Patrick O'Connor QC, a judge asserted that the US would not provide the missing evidence against Ahmad and Ahsan because "they want these people extradited." He added:
"It's just unreal. What your client is doing is frustrating a lawful extradition."
The BBCs Steve Swann described what followed as "angry exchanges" between Patrick O'Connor QC and the judge. The judge at one point said:
"I cannot think of a more high profile case in which to make criticisms of a private citizen and his solicitor."
The attempt at judicial bullying seems to have gone no further. Had it done so, it would have invited a robust response from campaigners and the legal profession, which might perhaps have opened the way for a re-examination of some of the issues swept aside by the court.
The human rights organisation Liberty had written to the court earlier in the week asking to be allowed to intervene in the proceedings, saying that "if all or a substantial part of the alleged criminal conduct took place in the UK, a person should face trial here where it is in the interests of justice that they should do so."
The judges seem to have paid no real attention to Liberty's request. Liberty's lawyers had no opportunity to present their arguments in court.
The court stopped hearing legal arguments at the end of the afternoon of 4 October. It opened its doors again at 2.30pm on Friday 5 October for the judgment to be given. Inevitably, the judgment rejected all the arguments made on behalf of the applicants.
A written summary of the judgment was provided, but the full judgment was given orally and took some time to present. The judges took care to say at the outset that the extradition of all five men could start immediately.
In relation to the possibility of a UK prosecution, the judges state in their written summary:
"At this point in time, even if the Director [of Public Prosecutions] had a duty to request evidence from the US Prosecutor, it was unreal to expect that now to be provided when it would thwart the extradition which the US had sought for so many years."
In other words the US is able, by holding on to material that appears to have originally been supplied by the British police, to dictate where British citizens should be prosecuted.
Cover-up in progress. Please investigate.
The five men were driven across England from Long Lartin Prison in Worcestershire to RAF Mildenhall in Suffolk and put on the two US planes that very night. The hasty departure suggests that the authorities had no faith in the High Court's assertions of finality and still feared a last-minute legal intervention. Or perhaps they just wanted to get the men out of the country before supporters got over their shock and organise serious protests.
For journalists with a little curiosity and some backbone, the execrable partisanship of the judges must have been tantamount to hanging a sign over the court door saying:
"Cover-up in progress. Please investigate."
Without an adequate leavening of real journalism, there's a risk that the suggestions of obstruction and bad faith aimed at the extradition victims, their lawyers and their supporters will distract attention from the dizzying questions that are still unanswered. No one will ask whether the extraditions were the fruit of a conspiracy to pervert the course of justice that spanned police, prosecutors and government ministers.
Or perhaps they will.
The loose ends the judges tried so hard to tidy up were beginning to unravel even before the judgment had been read out.
An article published in the Independent on the day of the judgment drew on US court documents that exposed the way that the Metropolitan Police and the FBI had handled the evidence against Babar Ahmad. The documents related to the 2008 trial of Hassan Abu-Jihaad, a US navy sailor said to have been in email contact with Azzam Publications, the name used by a website that Babar Ahmad recently admitted to being involved with.
The trial included testimony from Detective Sergeant Ian Vickers, a Metropolitan Police officer who had played a part in the British investigation of Babar Ahmad in 2003-4. He testified that he had been in charge of handling requests from the FBI for help in their investigation of Babar Ahmad, and that he had overseen the transfer to the US of various exhibits, including two floppy discs found on Babar Ahmad's desk.
DS Vickers' testimony confirms suspicions that evidence was sent straight to the US without being passed to the CPS, even though a British investigation into Babar Ahmad was underway at the time.
DS Vickers told the US court that he first learned of the FBI’s interest in Ahmad in late December 2003, a few weeks after Ahmad's arrest on 2 December. But his testimony made no mention of the MI5 bug now known to have been in Ahmad's house on 2 December. For the moment, nothing is known about any sharing of information between Britain and the US that may have occurred through MI5's involvement in the case.
Obtained through torture
On 6 October, while Babar Ahmad and Talha Ahsan were on their way across the Atlantic, the Daily Mail published statements from Guantanamo detainee Shaker Aamer. The statements were declassified by the US authorities in September. Shaker Aamer has previously stated that he was tortured by US personnel in the presence of British officials. The recently declassified statements provide details of further episodes of torture, and evidence that British officials knew that it was occurring. Shaker Aamer also says that in late 2003 he was questioned by an MI5 or MI6 officer about Babar Ahmad. This points to the possibility, long suspected, that there exists as yet undisclosed evidence against Babar Ahmad that was obtained through torture.
In response to Karl Watkin's attempted private prosecution, both Babar Ahmad and Talha Ahsan provided affidavits accepting that they had a role in the pro-jihadi Azzam websites.
Babar Ahmad said:
"I was never asked in the police station or thereafter whether I was involved in the administration of azzam.com and qoqaz.net websites.
I have now been asked this question. Both websites were taken offline in June 2002. I have no hesitation in confirming that I continued to be involved in the administration of both websites until a date I am no longer certain of in Spring 2002."
Talha Ahsan said:
"I admit when requested I provided assistance with some of the running of the Azzam publication activities whilst a student between the mid 90s and 2001."
It remains to be seen whether Ahmad and Ahsan did anything that would ordinarily be viewed as criminal, or whether the charges against them are motivated only by a desire to punish them for their part in running influential websites that were politically distasteful to the British and US authorities.
"I am a sturdy ship of justice on a sea of overwhelming injustice."
- Talha Ahsan's last words to his family before being extradited.