US vs Babar Ahmad
High Court Drama: Day 3
Thursday 13th July 2006
‘The Good Faith of Uncle S.A.M’
The third day of Babar’s appeal at the High Court started slightly later than 10.30 a.m. due to problems in the video-link-up. Eventually it was fixed and the two judges, Mr Justice Walker and Lord Justice Laws, entered the courtroom. Hugo Keith, the barrister for the Prosecution, continued to challenge the points of appeal raised by the Defence.
Mr Keith tackled the issue of the diplomatic assurance and how much it would be binding upon the U.S. to honour it. He highlighted the fact that Diplomatic Note 25, issued in Babar Ahmad’s case, would not only protect him from Military Commission, but also ensured he would face trial with a “full panoply of rights”. He would also be protected from being designated an Enemy Combatant. Mr Keith then went on to giving a colourful lecture to the courtroom about the nature of diplomatic assurances and that they were widely drafted on the “presumption of good faith” on part of the U.S government.
He then addressed the Defence’s point about the risk of a superseding indictment. This is where another set of charges could be brought forward against the defendant, thereby placing them at risk of being designated an Enemy Combatant. Edward Fitzgerald QC, for the Defence, had earlier cited that this is something not covered by the assurance and the appellant would then be at risk of being designated Enemy Combatant by virtue of some other executive order under another name.
Mr Keith continued to push forward the notion of “good faith”. He acknowledged that a diplomatic assurance was not the same as a treaty and hence not legally enforceable by Babar Ahmad. In the U.S, Babar would not be able to enforce the promises made on the diplomatic assurance in any court in the U.S. Even the Judge added to this point by saying that the matter is not whether or not American sticks to the diplomatic assurance, but rather whether the U.S. will honour it in good faiths and due to the carious other benefits.
Mr Keith agreed that the practice of extraordinary rendition, if it occurred, would be a fundamental breach of the appellants’ human rights. Mr Keith then was able to look the Judge in the eye and state blankly that the risk of extraordinary rendition was simply “unreal”. He stated that both men were wanted for trial so why would the U.S want to make them “disappear”? He simply brushed aside the fact that Mr Fitzgerald had emphasised on a number of occasions that the risk of Extraordinary Rendition would become very real if Babar was acquitted. In such a case this could happen to extract more information from the defendent. Mr Keith then reiterated his favourite two words for the day, “good faith”, and the fact that there was no evidence to “rebut the presumption of good faith” from the U.S. Mr Fitzgerald had repeatedly emphasised to the Court that presumption of “good faith” was not enough as an assurance and one has to look at the facts.
Mr Keith then attacked the Defence’s case study of Maher Arar who was rendered from the U.S, which was supported by the sworn evidence of a diplomat. He tried to brush aside the seriousness of the case study by stating that Arar was not an “extraditee” as Babar Ahmad would be, and therefore that evidence was misconstrued. Yet again he stated that the spirit of the U.S. ‘s “good faith” was suggestive of the fact that they would render the appellants.
Special Administrative Measures (S.A.M.’s)
With regards to these, the Prosecution addressed the following points:
• The alleged discriminatory nature: Once again Mr Keith cited bluntly that there was no evidence to support the fact that S.A.M.’s will be imposed on the basis of race and religion. Despite numerous requests by the Defence to the Prosecution to provide the figures for exactly how many Muslims were subjected to S.A.M.’s in comparison to non-Muslims, they had failed to provide these. Instead they provided inadequate statistics from the Federal Bureau of Prisons, which manages mainly post-conviction inmates. The Defence found these unsatisfactory as they had also requested pre-trial figures and on the previous day had requested the Judge to order them to provide the full statistics. Instead of agreeing to provide the figures, Mr Keith stated that S.A.M.’s were applied to the most dangerous individuals who had involvement in cause of death or serious injury. Since most terrorists were of the Islamic faith, it would therefore be inevitable that there would be a higher proportion of Muslims under S.A.M.’s
• Human rights violations: Solitary Confinement in itself was not a violation of one’s human rights and is dependent on the nature and length of confinement. Mr Keith also tried to convince the Court that since S.A.M.’s could be challenged, they preserved the basic rights of the individual. However, Mr Keith stopped short of mentioning the fact that there was yet to be a successful challenge by an inmate to the S.A.M.’s he had been placed under and moreover, the appeals process was non-systematic and haphazard.
• Mr Keith them concluded by stating that it was impossible to know whether the risk of S.A.M.’s was a real one and how likely it would be that they would be applied to the individuals in question.
Mr Hardy, who had replaced his cowboy hat for a wig on this occasion, then stood to enlighten the Courtroom about the various points of law regarding the Extradition Treaty and its wording. He began by stating that a Diplomatic Note not being binding by International Law was a minor point. The UK and U.S. had extradition agreements dating back to 1842 and the alliance between the two countries was indisputably strong. It would therefore not be in the U.S. ‘s best interests to disregard the assurance. He also stated that there was no evidence that an assurance such as this had ever been broken. Assurances with other countries had also been adhered to by the United States . The Defence later quashed this point by the fact that this was a weak argument because an assurance which covered such a broad range of circumstances had never been given before concerning extraditions. Most previous assurances were given against specific situations such as the application of the death penalty, or the length of a given sentence.
Mr Hardy then tried to convince the Court that a state may give up an individual at the request of another but that it would still retain some level of sovereignty and protection over that individual. For that reason, it would be unlikely that Extraordinary Rendition would occur to the appellants. He did concede to the fact that the practice of Extraordinary Rendition is prohibited but stopped short of admitting that the U.S. practices it worldwide.
With regards to S.A.M.’s, Mr Hardy was clearly clutching at straws as this was clearly the weak point of the Prosecution. The District Judge himself had written in his judgement that he had the greatest grounds for concern regarding the application of S.A.M.’s. Mr Hardy tried to reiterate the point that they were subject to judicial control and could be appealed against. However, he was clearly flustered at this point and dropped his notes to which the Judge commented “You are huffing and puffing Mr Hardy!” The Prosecution rested their case at that point for the Defence to conclude.
Mr Fitzgerald started by reminding the Judges that the District Judge had stated this was a “difficult and troubling” case. He then went on the address the recurrent issue of “good faith”. He said that he did not doubt the good faith of the U.S. but the history of a strong alliance could not be taken as one free of disputes. He mentioned the case of Moazzam Begg, the British Citizen detained in Guantanamo Bay then subsequently released. This was a clear example where British Citizens have been detained by the U.S. and the UK-U.S. relationship came secondary to the interests of the U.S. authorities.
He then made the following points in concluding his presentation of the Appeal:
• The long history of accepting assurances and not questioning their validity had only been in the specific context of cases such as the death penalty. This assurance is where a part of State law will be dis-applied, that being the designation of Military Order Number One, or that the duty perceived appropriate by the President would not be undertaken. In this context, the issues are more complex and this cannot be compared to past assurances due to this.
• Military Order One is commissioned by the President, not by the U.S embassy from where the diplomatic note arose. He stated that we do not know if it was sanctioned by the President himself and whether he was even consulted. There was no history provided by the U.S government as to how the note came into existence and nor is there any history of authorisation
• There was no way for an individual to enforce the diplomatic note or seek a remedy if it is not adhered to. This point was accepted by the Judge but he went on to say this was all the more reason to rely on the good faith through which the note was administered.
• The fact that the note was given by a “mature legal democracy” did not mean the U.S was not open to criticism. There may well be a 150 year history of an unbroken relationship between the UK and U.S but we still do not, for example, share their definition of torture. They do still have their own interpretation of the Law.
• The wording of the diplomatic note may seek to dispel the risk of military trial and designation of Enemy Combatant. However, it does not cover the risks of Extraordinary Rendition and the issuing of Military Order One, which remains a real risk. The diplomatic note is not law and can only be taken as a high intention at most. The Defence emphasised the dangers of relying on such an assurance to eliminate the very real risk of Military Order One being applied.
• Extraordinary Rendition: At this point the Judge stated that if no other country has expressed an interest in the appellant then there was no evidence to support these individuals being subjected to this. Mr Fitzgerald stated that there was overwhelming evidence to support the fact that Extraordinary Rendition does occur and there are not specified destinations. Mr Fitzergerald went on to add that it was often the ase where individuals were taken to third countries so that the ‘dirty work of the U.S. ‘ was done by others. He then invited the High Court judges to rule that until the U.S. stops its practice of Extraordinary Rendition, the U.K must bar the extradition of all Muslims accused of terrorism to the U.S.
• S.A.M.’s: Mr Fitzgerald reminded the Judge that the Prosecution were wilfully withholding the statistics of Muslims held under S.A.M.’s in the U.S. The Judge then states to the Prosecution that he would not order them to provide them but would be very keen to see the figures. At first the Prosecution denied that repeated requests had been made for the figures. This was swiftly corrected when the Defence pointed out the various letters sent to them in this regard. Then Mr Hardy, in a moment of fluster and much to the dismay of his colleagues, stood and promised the Judges he would endeavour to provide the figures. Judge Laws stated that he looked forward to seeing them. The importance of the figures was upon a point of law. Should a particularly draconian measure, such as those included in S.A.M.’s, be disproportionately applied to Muslim defendants, then this in itself would give reason to bar the extradition.
• Long history of strong alliance: The history of the relationship between the UK . And U.S was a good one, but not one of extradition requests having been refused to the U.S or by the U.S.
With this final point Mr Fitzgerald concluded. The Judge stated they would need to reserve judgement as many points had to be considered. He stated that they would endeavour to give the judgement before 31 st July 2006 . However, in the event this was not possible, then a judgement would be made in October 2006 (courts would be closed in August and September for recess). The fight for Babar Ahmad’s release is now in its final stages.