‘US Vs Babar Ahmad’

Day 1: The Trial of Babar Ahmad 02/03/05

The Marshland of Military Order One

The Prosecution QC came in wearing a cowboy hat and the only thing missing was his Lasso!

The hearing started at 10.50am . It was a packed house and even the security officer remarked that he had never seen the court as full as it was today. The defence began their opening arguments that the US senate has not ratified the treaty and as a result the 1972 Extradition Treaty applies. The marked difference is that under the 1972 treaty there is a prima facie case that is required. Therefore how can the detention be in accordance with law when it is in breach of international law. Edward Fitzgerald QC, from the defence team, asked the judge to give a ruling on the validity of the Extradition Treaty 2003. It was also argued that without prima facie evidence it is difficult to determine how the evidence was obtained which could even be by torture. Another point argued was that Babar Ahmad is unable to give evidence in rebuttal to the allegations.

The next point that Edward Fitzgerald QC raised in the court room was the lack of detail presented in the affidavit (arrest warrant from the US ), in their definition of supporting terrorism. As is stated in the affidavit, the problem arises where it can indeed encompass a wide definition. Edward Fitzgerald QC pointed out that the Taliban was a de facto government up to 2001. The next point argued was the support of the mujahideen in Chechnya was not a form of terrorism, as was highlighted in the Zakayev case. In this case the Russians sought extradition of Ahmad Zakayev, in which the same judge presided. In this case the judge stated that he was quite satisfied that it was an internal conflict and a civil war. It was a legitimate struggle that the Chechens were involved in, as during 1995-1996 the Russians invaded Chechnya as well as in 1999. The Russians were involved in the carpet bombing of Grozny in which a large number of civilians were killed. The defence therefore argued that if you were urging people to fight in Chechnya or Afghanistan then it was not terrorism rather they were freedom fighters. Edward Fitzgerald QC then requested the judge to make a ruling on the definition of supporting terrorism where more clarification was needed by tomorrow.

The prosecution then began their opening argument by raising questions about the Taliban being a de facto government, as they had no international legitimacy. However he went onto say that this court was only here to discuss domestic law. He also made the point that evidence had not been obtained by torture but instead concerned the publication of material on namely two websites: www.azzam.com and www.qoqaz.net . It was alleged that both sites sought, invited and contributed to terrorist causes in Afghanistan and Chechnya . It was also alleged that the websites carried material for incitement and solicitation to murder, and were established, operated and maintained by Babar Ahmad.

A heated exchange then emerged between the prosecution and defence QCs. The prosecution QC then stated that any violence with a political end equalled terrorism and that the individual was a terrorist. Immediately Edward Fitzgerald QC then replied by saying that under that same definition, when Saddam Hussein sent his goons to torture and beat up people to keep him in power, he would also be classified as a terrorist. He also said that this definition applies to anyone who supports him. Therefore when George Galloway MP, met, shook hands and exchanged gifts with Saddam Hussein he would also be defined as a terrorist according to the prosecution. Then in his classical style Edward Fitzgerald paused and turned to the Judge and said that George W Bush is a terrorist and he is constantly engaging in violence for a political end! At this amusing remark the court room including the judge burst out in laughter.

The prosecution then argued that Babar Ahmad was associated with terrorists from around the world including Shamil Basayev. They pointed out the Moscow theatre siege, the Beslan siege and other acts committed by Shamil Basayev were terrorist acts and therefore by default Babar Ahmad was also a terrorist. The defence then argued that prior to 2001, the alleged allegations against Babar Ahmad did not constitute terrorist activity in association with Shamil Basayev. Edward Fitzgerald QC then asked that do we leave it to the prosecution and the Attorney General to decide who is a terrorist committing violence for a political end?

The prosecution then raised the point that Chechnya was not invaded and that it was part of Russia and therefore some of the resisting Muslims did commit acts of violence and thus terrorism. At which stage Edward Fitzgerald QC, visibly irritated and agitated by this comment he remarked that in 1995 Russia had a peace treaty with Chechnya and was therefore it was a sovereign state. When the Russians came in and attacked Chechnya in 1999, this constituted invasion of a sovereign state. Therefore any individual that took up arms was a resistance fighter, like what happened in Bosnia in which he said many Muslims were slaughtered. Then the prosecution mumbled the fact that we are not here to discuss these issues and that we are here to discuss modern times. Immediately Edward Fitzgerald QC in astonishment said that this only took place in 1999 and we are not talking about the Norman period! This caused many chuckles in the audience. At this point there was a lunch break from 1.15pm to 2.15pm .

After lunch Mr Thomas Loflin was called to give an expert witness statement for the defence. He is an attorney in North Carolina US specialising in US Criminal Law, who has been practising law since 1973. He is known to be a distinguished and respected attorney with many years experience. He said that Babar Ahmad would be liable to face indefinite detention, which was not contended by Mr Robert Appleton, US prosecuting attorney. This would be achieved by Military Order One and only applies to foreign nationals and not US citizens. Babar Ahmad is a foreign national according to the US and would be tried by military commission and he would have no right to appeal except at the behest of President Bush. The following would be admissible in such a case:

  • Evidence gained by torture in which case the death penalty could be applied
  • Evidence can also be withheld
  • Client and lawyer confidentiality is not allowed along with no jury being present
  • Clients would only be seen by a military appointed lawyers therefore resulting in the denial of basic human rights.

Mr Loflin then brought up the case of James Ujama. After unexpected evidence that came to light yesterday, Mr Loflin spoke to the lawyer of James Ujama. The US government wanted James Ujama to plead guilty to the allegations against him in return for a reduced sentence. However James Ujama refused. Upon refusal, the US said that if he does not agree to their terms then the military commission would come in under Military Order One. Therefore his lawyer, knowing that he had no legal protection against Military Order One, advised his client to plea bargain as this was the only thing that would save him from indefinite detention. A lesser indictment was issued in place of the original indictment. This is known as superceding indictment in which a lesser indictment is sought and a plea bargain obtained, in order for it not to go to military commission.

If indefinitely detained he can be held in an undisclosed location where conditions are either the same or worse then those in Guantanamo and he does not need to be put on trial. Military commission can try military personnel and foreign nationals, and at present this comprises of all Muslims. There is a clear denial of discrepancy between US nationals and foreign nationals and thus a huge violation of human rights.

Upon this the lawyer of James Ujama wanted it in writing in order to provide protection for his client in order to prevent the Military Order One from taking place. Had the President given an undertaking that he would not seek Military Order One, then it would have already happened. Therefore there is a real risk and possibility that this may occur to Babar Ahmad.

Doctrine of speciality refers to the transfer to military custody in which a military commission can seek the death penalty and that evidence obtained by torture would be admissible. Special administrative measures could be brought in which would include being placed in solitary confinement and restrictions placed on access to lawyers. Special administrative measures have only been used on Muslims and those peoples of Islamic faith. Clearly this would apply to Babar Ahmad as he is of the Islamic faith. Military Order One is at the request and discretion of President Bush.

Mr Loflin also made the point that if a person is tried and acquitted in the US , Military Order One could also apply again at the behest of President Bush. What was even more alarming was that this has already occurred in one case in particular pre-trial. Ali Aleh Kahlah al-Mari is a Qatari national who was accused of being an Al Qaeda sleeper agent and designated an enemy combatant by President Bush in June 2003. He came in to the US voluntarily as a student with the purpose of graduating from Bradley University . He was indicted for obtaining property fraudulently and money laundering alleged to be connected to terrorism. Pre-trial manoeuvring began in which the defence requested facts, figures, and statements in order to build a defence. Then President Bush in 23 rd June 2003 , signed and ordered military custody and was classified as an enemy combatant, even though he entered the US voluntarily and was not captured on the battlefield. There was extra ordinary fast action between the US district court judge and Donald Rumsfeld, the Secretary of Defence, and on the same day the district judge dismissed the multiple count indictment against Ali Aleh Kahlah al-Mari. On the same day he was then handed over to the custody of the Secretary of Defence. The speed of process was unheard of. At present Al-Mari has no access to an attorney and remains in indefinite detention.

If the superceding indictment is filed then the death penalty can be sought. The death penalty can be applied to those conspiring to murder US citizens(s), thus under the alleged crimes Babar Ahmad would be eligible to the death penalty. This is in particular relation to the Moscow theatre siege in which a US citizen was killed. Under the indictment if you conspire with another individual, even if you have never met with that individual, then you would be liable for conviction and thus the death penalty.

What was interesting is that in the latest affidavit of Mr Robert Appleton, US prosecuting attorney, did not mention the use of superceding indictment nor does he contest the facts of Military Order One.

In conclusion the prosecution attempted to make Mr Loflin agree with him on the assumption that the US-UK Extradition Treaty protected an individual from military commission. However Mr Loflin replied by saying that when Military Order One is sought there is no breach of the treaty. The prosecution was visibly anxious and uneasy. The prosecution then said that for the President to issue Military Order One it is a breach of the treaty. Mr Loflin then corrected him by saying that under article 12 of the treaty there is no mention of that and therefore this would not be a breach of the treaty. Mr Loflin’s closing remark was that at the end of the day Mr Bush can do whatever he wants! At which point the judge started to smile and the journalists began to laugh. A true ‘Cowboy Vs Babar Ahmad’!

The hearing was adjourned until Thursday 3rd March 2005 for 10.30am .


Standing Firmly for Justice

March 2005

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