US Vs Babar: Part 2
Day 2: The Trial of Babar Ahmad 03/03/2005
Ohio or Oklahoma ?
The second day of Babar Ahmad’s Extradition defence hearing commenced at Bow Street Magistrate’s Court at 10.40am . This time the prosecution lawyer, after the previous day’s flustering exchange, decided not to walk into court with his cowboy hat.
Senior District Judge Timothy Workman commenced by confirming that the offences in question were extraditable offences in the United Kingdom . The expert witness, Thomas Loflin III, was then invited for cross examination by the prosecution lawyer, Mr John Hardy. He commenced by asking Mr Loflin if he would agree that due to the binding effects of Article 20 of the Extradition Treaty, it would be a fundamental breach of treaty to allow a Military Order Number 1 to supersede his existing indictment. Mr Loflin pointed out that there is no clause in the Treaty that says that once the extradited person is detained within the United States, he must be detained according to civilian jurisdictions and not military. In other words if Babar Ahmad was to be extradited, there was nothing binding upon the United States to restrict the trial to civilian courts only and nothing to stop the President of the United Sates from signing a Military Order Number One. Despite several attempts by the prosecution to persuade Mr Loflin to agree that this would be a breach of the Treaty and would not happen, Mr Loflin kept to his stance firmly. The prosecution QC, Mr Hardy, was becoming visibly anxious and confused.
Transfer to Another Country: A Rendition 1
The matter then arose concerning the facts that once a Military Order Number One is instructed, the US can send Babar Ahmad to any place in or out of America . Mr Hardy therefore asked whether this transfer, a rendition de facto , be in fact an extradition; which would be in breach of the Treaty. Mr Loflin pointed out that not only would it be a breach of the Treaty but it would be illegal, but that did not stop President Bush from doing so.
He then went onto saying that if Babar Ahmad, for example, was sent across to Egypt by the U.S authorities, there would be no judicial restrictions applied to his case and no opportunity for appeal. The defendant could be picked up in the middle of the night and placed on a flight to Egypt without the chance for him to even speak to a lawyer. In other words, Mr Hardy, the prosecution lawyer, was trying very hard to encourage Mr Loflin to agree with him that the U.S would not do anything which is in breach of the current Extradition Treaty. However, Mr Loflin stood firm to his ground and said that once the Military Order Number One came into play, there is nothing at present, binding upon the United States as to what happens to Babar Ahmad. He stated that “there was a real risk of transfer to Guantanamo Bay and or elsewhere”.
Once in military custody, if, for example, Mr Loflin was representing Babar, what could he as a lawyer do to prevent the rendition?
The prosecution commented sarcastically that Mr Loflin was a “resourceful” lawyer, he was sure there was plenty for Mr Loflin to do. However, Mr Loflin pointed out in fact there was not a lot he or any lawyer could do in such circumstances. In theory, he could request a habeas corpus 2 to be filed and this would be acceptable to the military courts. However, Mr Loflin reminded the court that many lawyers have now been trying to do so for the Guantanamo Bay detainees for over three years and are yet to be successful. Foreign National detainees have no rights of appeal if detained prior to trial. Once convicted, they can appeal only to the President himself, not to any court of appeal. With the current track record of President Bush, it is debatable as to whether he would consider the appeal fairly.
Possibility of facing the Death Penalty
Under the current indictment, the charges faced by Babar Ahmad would not warrant the death penalty. However, there is nothing to stop the US to put forward a superseding indictment which may include more serious charges that could result in the death penalty. The U.S government could easily state that new evidence has now come to light warranting the Military Order Number One. Thus the U.S authorities could transfer Babar Ahmad to military custody based on secret evidence which may include evidence obtained under torture. The Attorney General of the United States has stated in the past that it is now part of U.S law that as long as the torture did not occur on U.S soil, evidence taken from such torture could be admissible in court.
Once under Military Order Number One, there is a considerable risk of Babar Ahmad facing the death penalty. It was established and understood by both parties that were there a likelihood of Babar Ahmad facing the death penalty, the Home Secretary, by British law, could not allow the extradition. The prosecution, Mr Hardy, raised the point that were written assurances obtained from Mr Appleton, the District Attorney General for the State of Connecticut or even the Attorney General of the United States, this would suffice as an assurance that Babar Ahmad would not face the death penalty. Mr Loflin responded by saying that it would not. Once in military custody, only the President himself or Secretary of Defense could provide such assurances. The matter no longer is one for the Attorney General. And even after obtaining such assurances, it would have to be cross-examined as to how likely they are to keep to this agreement and who would enforce this. Mr Loflin commented that the Geneva Conventions apply to everyone and the President has disregarded them , so what is there to say that in this special case he would keep to an agreement to stop the death penalty from being applied to Babar Ahmad.
Special Administrative Measures (SAM’s) and the likelihood of a Fair
As was mentioned on the first day, SAM’s include measures such as:
*Solitary confinement, possibly for indefinite period of time
*Denied access to confidential consultation between lawyer and client
*Denied phone calls to spouses and loved ones
*Restrictions or bars to receiving and sending mail
The prosecution tried to argue that one could appeal against SAM’s and they were not applied exclusively to Muslims associated with alleged terrorism. Mr Loflin pointed out that these measures, as far as he was aware, were especially applied to people of the Islamic Faith in the U.S charged with terrorism or even if they are alleged to be affiliated to terrorism in any form. In principle, the application of SAM’s could be appealed against. However, there was yet to be a successful challenge to solitary confinement and only one appeal against denied confidential access to lawyer had been successful. Mr Loflin also mentioned the case of Shoe Bomber, Richard Reid, who complained about the fact he was denied his subscription of Time Magazine in prison prior to his sentencing. This was not taken seriously and once convicted, he was told that what he received and did not receive was at the discretion of his jail officers. Thus there was a “real risk of mistreatment of Mr Ahmad on the grounds of religion”.
If Babar Ahmad was extradited to the U.S, what is the likelihood of him receiving a fair trial?
The prosecution, Mr Hardy, had to accept that transfer to military custody could not be ruled out and there was a possibility of the death penalty once under Military Order Number One. This brought him down to argue the point of Babar receiving a fair trial in the United States , even if he was in military custody. He tried to challenge Mr Loflin’s stance that because Babar Ahmad was a Muslim and alleged to be associated with terrorism, these two things were very likely to deny him a fair trial in the U.S. Mr Hardy thus tried to exemplify this by bringing up the case of the Ohio Bomber and whether he was denied a fair trial…
The Ohio Bomber???
Who was he? No one in the court room had ever heard of the “Ohio Bomber”. Was the Prosecution fabricating a story to strengthen their case, similar perhaps to some of the allegations placed on Babar Ahmad? No. Rather, Mr Hardy had not looked at the map of his paymasters’ residence recently. As Mr Loflin pointed out, much to the amusement of the entire courtroom, it was in fact the “Oklahoma Bomber”, Timothy McVeigh. The cowboy was in trouble. He admitted that his geography was “slightly off”. Mr Loflin corrected him by stating that Ohio was to the East of the Mississippi River and Oklahoma was to the West, so he was “off” considerably!
Red with embarrassment, Mr Hardy went on to ask Mr Loflin whether the Oklahoma Bomber received a fair trial. Mr Loflin said that as far as he was concerned, no But that was not due to the jury, but due to the fact that perhaps the government had withheld some vital evidence. Mr Hardy said, with reference to the jury though, the trial was fair. Mr Loflin pointed out that McVeigh’s trial venue was changed to Colorado , removed from Oklahoma , the city affected by the devastation. This was precisely for the reason that jury taken from the Oklahoma area could be unfairly biased against the defendant. However, in Mr Ahmad’s case, you have a whole nation understandably affected and upset by the events of 9/11, so to find a fair jury would be very difficult. Mr Loflin pointed out again that since 9/11, Muslims and in fact anyone who even looked Muslim, like the Sikhs, were the victims of prejudice. Many Muslims, even if they strongly abhorred the events of 9/11, were unfairly targeted by much of the U.S public. Connecticut was known as the “bedroom city” to New York City . Many families in Connecticut lost someone in the World Trade Centre attacks on 9/11 and the likelihood of selection of a fair jury was dramatically reduced due to this.
The best response that Mr Hardy could come up with was would it be a viable option to change the venue of the court hearing, removed from Connecticut , to reduce this bias. It looked like he still had not recovered from his previous humiliation at the hands of the “Ohio Bomber”. Mr Loflin hid a smile as he said that change of venue was indeed a viable option but it would not necessarily mean a significant change of anti-Muslim feelings within the public from which the jury is elected. Mr Hardy was now on his last leg and was struggling in his attempts to create some substantial point to argue on. Surely there were safeguards in the system that meant the jury selection is always fair and everyone in the jury is unbiased?
Mr Loflin took the opportunity to again educate Mr Hardy about basic principles of the land he was acting on behalf of, the United States . He explained to Mr Hardy and the court the procedures for jury selection in the United States . Jury selection is made as follows:
*Computer generated random selection of people within the catchment area.
*These people are sent letters inviting them to appear at court
*From the pool of people who turn up, about 12 names are randomly selected.
*The judge then examines the selected jurors with regards to the case in question to ensure they have no “negative feelings” or adverse bias that could prejudice the case.
Mr Loflin said that it would be very easy for anyone to cover-up any negative feelings they had against Muslims accused of terrorism during such an assessment. In fact, there may even be the danger of people with added animosity trying get onto the jury panel by concealing their true feelings in order to influence the case outcome.
Mr Loflin then brought up the case of Zacharias Moussaoui who was charged on six counts of conspiracy to commit murder and terrorism in the September 11 attacks. Moussaoui was alleged to have been part of the original 9/11 plot. Most of the witnesses from whom information led to his arrest were in prisons in various parts of the United States and abroad; some known, some unknown. Mr Moussaoui’s counsel requested access to such witnesses by the defence lawyers, to be taken from those in custody to allow him to have a fair and balance trial. The government denied them access to such witnesses on the grounds that would be a danger to national security. For this reason, the judge said he could not impose the death penalty as it was concluded that Moussaoui would never be allowed a fair trial and nor the defence adequate access to any of the witnesses. Mr Loflin concluded by saying that judging by the case of Moussaoui, who is currently detained at an unknown location, it is very likely that Mr Ahmad would also be denied access to vital witnesses and thus a fair trial in the United States.
Mr Hardy accepted that the death penalty could be an option under a Military Order Number 1, but he denied the risk of a flagrant denial of justice if tried under a military tribunal.
From the morning’s events it was clear that any Muslim in the US facing terrorism charges would be denied basic human rights and a fair trial, so the only thread left for the prosecution was, how real is the risk for denial of a fair trial. They needed time for this. In other words, they needed time to work out how they were going to get themselves out of this mess. No one could deny the track record of the United States when it comes to Human Rights abuses.
Edward Fitzgerald pointed out that the prosecution had been informed of their planned defence and their affidavit submitted 3 months ago in January 2005. However, he would be satisfied for as short an adjournment as possible. Mr Hardy requested the court rise for a couple of hours so that he could ring his bosses in America, once they had woken up due to the time difference, At this point the judge said he was “minded” to grant the adjournment. The court then rose for a couple of hours.
Once the court reassembled, the prosecution requested an adjournment to allow them to gather evidence concerning the risk of flagrant denial of justice to Babar Ahmad were he to be extradited. Mr Fitzgerald stated that whilst he understood the need for the prosecution to look into this matter, he did have a client who was in custody and would remain behind bars in the mean time. He also asked the judge that it was needed from the prosecution a timetable and description as the nature of this evidence so that they could prepare accordingly. The judge agreed that this was important or else the case would never end. It was thus agreed that on March 24th at 2pm , Mr Ahmad would appear by video-link for a remand and review hearing. It would be on this date that the prosecution would have to outline the nature of the evidence they wished to use in court. The final hearing date was set to commence at 10.30am on April 18th 2005 .
The court rose and the judge left. It was nearly sundown. Babar Ahmad’s fight against extradition was not yet over.
Standing Firmly for Justice
4 th March 2005
Habeas Corpus- Latin for “you have the body”. Prisoners often seek release by filing a petition for a writ of habeas corpus. A writ of habeas corpus is a judicial mandate to a prison official ordering that an inmate be brought to the court so it can be determined whether or not that person is imprisoned lawfully and whether or not he should be released from custody. A habeas corpus petition is a petition filed with a court by a person who objects to his own or another’s detention or imprisonment
Rendition- In this case refers to transfer of prisoner from U.S
authorities to a third and often unknown state where they may be
subjected to torture.
(i) “Outsourcing Torture: The secret history of America ‘s “extraordinary rendition” program.” The New Yorker Magazine, 14th February 2005
(ii) Cowboy Vs Babar Ahmad Part I (www.stoppoliticalterror.com)