US Vs Babar Ahmad Part 5:

U.S. Embassy on a frolic of its own ?

Wednesday 20th April 2005

The extradition hearing for Babar Ahmad resumed at 10.30am on Wednesday 20th April 2005 after a two-day adjournment. Babar Ahmad appeared in person accompanied by four prison guards, two of whom insisted upon sitting with family and supporters rather than besides Babar as had always been the case in the past.

On 18th April 2005, the U.S government presented to the Court a Diplomatic Note from the U.S Embassy in London addressed to the Foreign Secretary. This was an unsigned assurance, on behalf of the Government, that Babar Ahmad would not be subjected to Military Order Number 1, nor would he be designated an enemy combatant if extradited. The note also stated that in relation to Babar Ahmad the death penalty would not be sought or applied. Babar Ahmad’s Defence questioned the validity of such an assurance and stated that it was not binding upon the President to abide by it. The Court was then adjourned for two days to allow the Defence to bring an expert witness from the U.S to give further evidence in relation to the assurance.

The Defence counsel, Edward Fitzgerald QC, began by clarifying to the Judge the status of the Diplomatic Note providing the assurance from the U.S. He mentioned five main points of note.
1) The fact that this was a unilateral statement from one state to another and not part of an exchange of notes between two states.
2) Diplomatic notes that are part of an exchange between two states can result in treaty obligations upon one or both parties
3) There was no evidence to the United Kingdom that the Government has accepted this Diplomatic Note as a binding obligation. It is not a note in response to a request
4) Does this Diplomatic Note create obligations owed by the U.S to the U.K, which they have to honour?
5) Any obligations indicated in the Diplomatic Note are not owed to Mr Ahmad as an individual as promises between states are not enforceable by individuals. Diplomatic Note’s are usually presented by individuals acting as representatives to the minister for foreign affairs of a particular state. A unilateral Diplomatic Note such as this may or may not create an obligation to the state, but not the individual. Exchange of Diplomatic Notes can create treaty obligations but in this case, there has been no such exchange of notes between the U.K and U.S. This is not an exchange of notes.

The Judge at this point asked John Hardy, the Prosecution lawyer representing the United States, whether the Diplomatic Note had been sent to the Foreign Secretary to whom it had been addressed. Mr Hardy informed the Court that the note had been sent to the Home Secretary who will decide whether the assurances contained within are acceptable.

Edward Fitzgerald QC then went on to state that the Defence were not questioning the good faith of the American Embassy in providing the assurance but rather the fact that a Note such as this does not do its job in protecting Mr Ahmad from military commission. Mr Fitzgerald asked, “What is the undertaking of such a note in the real world of American politics and law?”

Mr Hardy stated that he had been given the authority to declare that the U.S Government regards the Diplomatic Note irrevocably binding upon it. However he accepted that it was not binding upon the individual but upon the government.

How Much Protection is Offered in the Diplomatic Note?

Thomas Loflin III was then called up as an expert witness to give evidence. On cross-examination by Mr Fitzgerald Mr Loflin confirmed that a Diplomatic Note such as the one submitted by the U.S Embassy is not enforceable by Mr Ahmad as an individual under U.S or International Law is not.

Mr Fitzgerald then asked, “Does this Diplomatic Note remove the risk of transfer to Military Commission or the risk of detention or trial under Military Order Number 1?”

Mr Loflin stated that with regards to American Law, the Diplomatic Note did not prevent the President from designating Babar Ahmad as an enemy combatant. Moreover, if the President went ahead and declared him an enemy combatant, then there was no remedy under U.S law to challenge such a decision. U.S domestic courts have no position to challenge designation of Military Order 1. In theory, the papers could be filed in a Federal Court for a habeas corpus, but in practice, non-U.S citizens have no constitutional rights as enemy combatants and the challenge is unlikely to get very far. Mr Loflin plainly then stated that he did not believe that the Diplomatic Note provided in this situation was enforceable in any Federal Court in the U.S as it did not give Babar any constitutional rights as an individual. In his view, transfer to Military Commission still remained a very real risk.

He stated that such a risk may be reduced due to the fact that Mr Hardy had stated that the U.S regards the note as “irrevocably binding upon it”, but the risk is not eliminated and nor is the President bound by such a statement. Mr Loflin then added that the President could receive additional evidence by the Central Intelligence Agency (CIA) at any point in the future to overrule the Diplomatic Note and designate Babar as an enemy combatant. In fact any future President could also do the same and justify it as being in the “best interest of National Security”.

Likelihood of facing the Death Penalty and Previous Disregard of Diplomatic Notes

The Diplomatic Note states that the death penalty would not be sought nor imposed on Babar Ahmad. Mr Loflin then went on to clarify the issue regarding the death penalty. He stated that the ultimate responsibility for seeking the death penalty lies with the Attorney General for the U.S. He stated that the Attorney General was not bound either by this Diplomatic Note and a real risk remained that a Superseding Indictment be brought against Babar to override the existing charges. This indictment may result in the death penalty and there was nothing to protect Mr Ahmad as an individual stated in the diplomatic note. As for imposing the death penalty, the final say lies with the jury at that time. The jury is certainly not bound by the Diplomatic Note to refuse implementation of the death penalty. If the jury decides on the death penalty and any appeals have failed, then the only person who can stop the death penalty from being carried out upon Babar is the President, who is not bound as an individual by this Note. Mr Hardy challenged Mr Loflin by saying that the jury would not agree to the death penalty unless it had been sought so the jury does not come into the equation. Mr Loflin told Mr Hardy he was “talking apples and oranges” and avoiding the main issue that it can still occur.

Mr Loflin then mentioned an example whereby the U.S failed to honour a promise made in a Diplomatic Note. On November 14, 2003 a Federal Court Of Appeals decided that the extradition treaty and the United States Government could not stop a federal judge from sentencing an extradited Colombian defendant to life imprisonment despite assurances from the U.S. government that it would do what it could to prevent that from happening.

Alex Restrepo was sentenced to life imprisonment in New York. Before he was extradited from Colombia to face murder and conspiracy charges, Colombia specifically sought assurances that Mr. Restrepo would not be subject to a life sentence. The United States responded by issuing the following diplomatic note:
“Should Mr. Restrepo be convicted of the offences for which extradition has been granted, the United states executive authority, [the fiscal] will not seek a penalty of life imprisonment at the sentencing proceedings in this case. The government of the United States also assures the government of Colombia that should the competent United States judicial authority nevertheless impose a sentence of life imprisonment against Mr. Restrepo, the United States executive authority (the fiscal) will take appropriate action to formally request that the court commute such sentence to a term of years.”

On the strength of that assurance or maybe in spite of that assurance, the government of Columbia authorized Mr. Restrepo’s extradition. The fact is that “the United States executive authority (the fiscal)” has no power to guarantee that a defendant will not get life. Mr Loflin suggested that the Note had been artful and deceived the Columbian Government. The U.S did not even honour the Note as a goodwill gesture towards Columbia and Mr Loflin expressed his “disappointment” at his Government”.

Another example of when the U.S has not respected a Diplomatic Note was given by Mr Loflin. He stated that in the case of John Knock the U.S Embassy providing an assurance promising to deal with the case within a certain timeframe. However, once again, the Note was not honoured and a superseding indictment overruled the agreements made in the Note. The Judge then also gave an example that he recalled a case of extradition of an individual from the Netherlands. The U.S promised not to carry out the death penalty via a diplomatic note. However, after the extradition the death penalty was carried out against this individual. Mr Hardy tried to tell the Judge he was mistaken and the case was one from Germany and did not involve and extradition. However, the Judge stated he would look into it but he was almost certain the case was that of an extradition case.

Special Administrative Measures (SAMS)

Mr. Loflin stated on more than one occasion that in his view, there was a “virtually 100%” risk of Babar Ahmad being subjected to S.A.M’s in custody if extradited to the U.S. Such measures are imposed both pre and post trial included some or all of the below.
• Monitoring of attorney-client consultation
• Abolished or restricted access to outside world: mainly family, friends and particularly religious prison chaplains who are often the first category of visitors forbidden to the defendant
• Solitary confinement

These measures are applied especially and particularly to Muslim defendants accused of terrorism. There are in place review and appeals’ processes against such measure but appeals are usually unsuccessful. If a high-ranking intelligence official states that a particular individual is a risk to National Security then S.A.M’s could be applied for the rest of that individual’s life. Mr Loflin stressed that the Diplomatic Note made no reference or assurance with regards to Mr Ahmad being subjected to S.A.M’s. The Judge asked Mr Loflin if he thought the risk was great of S.A.M’s being applied to Babar Ahmad. Mr Loflin insisted that it was a great risk as Mr Ahmad was the “cliché-type” of individual to whom S.A.M’s are applied. The Judge then asked who assumed ultimate responsibility for administration of S.A.M’s. Mr Loflin told him it was the U.S Attorney General, if he believes that a person is able to carry out acts of murder and destruction whilst in custody if provided with adequate access with the outside world.

Extraordinary Rendition

The Diplomatic Note provided by the U.S also failed to provide any assurance against Extraordinary Rendition, which is non-judicial transfer to a third part state to extract information from the defendant, with probable use of torture. Mr Loflin stated that rendition was more likely to occur especially if Mr Ahmad were acquitted and discharged from custody.

References were made to two recent articles. “Torture by Proxy” was a report published in October 2004 by the New York Bar Association. The report covered details when federal agents arrested Maher Arar, a Syrian-born Canadian engineer, at John F. Kennedy Airport in New York because his name appeared on a terrorist watch list. Although Arar insisted that he was not a terrorist, the U.S. delivered him to Syrian interrogators. After months in a windowless room and regular beatings with thick electric cables, he said, he confessed to anything they wanted just to stop the torment. A year later, Arar was released without charges and he decided to file a lawsuit against the Government of the United States. A later article by The New York times supported Mr Arar’s allegations with further evidence. Examination of the log of the chartered plane that Mr Arar referred to as having flown him out of JFK Airport revealed striking consistencies with Mr Arar’s story.

Mr Loflin then informed the court that if someone was kidnapped from the U.S and returned, the Courts in the U.S could not look into it. Interestingly, despite notable publications with evidence to support the fact that renditions have occurred and do occur, Mr Hardy refused to accept that the U.S Government practices this. He stated quite rightly that such renditions would be in violation of the Extradition Treaty. Mr Loflin had to then inform him that rendition is a violation of not just one but several international treaties that the U.S is obliged to follow. However, the U.S does not have a very good track record of never breaking promises.

Mr Hardy paused. He then stated to the court that Extraordinary Renditions, if they occur, occur under Military Commission once a defendant has been designated an enemy combatant. The Diplomatic Note provided an assurance against such a designation and thus against rendition. However, much to his embarrassment the Judge himself had to inform him he was misinformed and renditions are not limited to enemy combatants. As for challenging a rendition, it is questionable as to how far someone like Mr Arar will get in his lawsuit. Mr Loflin stated, “The United States Government has sovereign immunity defences it can assert”. In other words, a person can try to challenge them but they are more than likely to fail miserably. Mr Hardy continued to insist that there was a judicial process in place as a remedy against rendition, if it occurred. However, the Judge pointed out to him that was providing the fact that the defendant was returned to the U.S. In Arar’s case, he was able to file a lawsuit because he was released. Others still in unknown locations cannot do so.

Concluding Statements

The Court then rose for lunch and reconvened at 14.15 to hear the final submissions of both parties. The Prosecution’s final submissions stated that S.A.M’s were a means of detention that one can challenge and they should be separated from the facts of the detention. He accepted the existence of S.A.M’s and accepted that Babar Ahmad would not have any remedy in international law but lawyers could bring “bring the matter to the attention” of a Federal Court

Mr Hardy refused to accept that extraordinary renditions are authorised and occur with the knowledge and approval of the U.S Government.

Mr Hardy insisted to the Court that the Diplomatic Note submitted was irrevocably binding upon the U.S Government and they regarded it as such. He also said that the Embassy did not go “on a frolic of its own” in issuing the note and the authority came from senior members of the Government. He could not however provide factual evidence of this. The Judge asked Mr Hardy whether the President himself told the U.S Embassy to submit the assurance against Military Order 1, as ultimately he is the man who singly holds the constitutional power to apply this special order. Mr Hardy would not answer the question directly and retorted `let me twist the question to you, would the U.S. embassy go on a frolic of its own?’ i.e. the Embassy would not do anything without orders. However, the question remained that who would be held to account and if Babar Ahmad waved this diplomatic note in a Federal Court, how would it protect him?

Edward Fitzgerald QC in his most exhilarating performance then submitted the final submissions on behalf of the Defence.

1) The existence of a real and substantial risk that Babar Ahmad would be prejudiced in trial. The application of S.A.M’s as a special restriction measure was in fact discrimination on the basis of race and religion. It only applied to Muslims accused of terrorism and involved restriction of personal liberty. In fact it is a form of punishment. There is un-contradicted evidence that S.A.M’s are applied to Muslims and the Prosecution failed support and argue that S.A.M’s were applied indiscriminately.

2) Superseding indictment, whereby a new indictment can be brought against Babar Ahmad in light of new evidence from the CIA can still always occur. Such an indictment can still occur at any time with no safeguards to Protect Mr Ahmad against this from occurring.

3) The binding nature of the Diplomatic Note provided remained questionable. The questions remain unanswered as to what the U.K can do as a state and what could Babar Ahmad do as an individual to enforce the assurances given.

4) Rendition was a real risk to a third country and there were no safeguards for the prevention of this

Edward Fitzgerald QC finished by saying that ultimately Mr Ahmad had no remedial course of action in the courts in the U.S. if any of the above occurred The suggestion of the Prosecution that he could go to the International Courts of Justice was a shear mockery as the U.S. had pulled out of this treaty and no longer recognised it, just like the Geneva conventions. In this new world order, international laws were being re-written by one state!

On hearing the Final Submissions, the Judge informed the Court he would like four weeks to decide on the matter. His judgment will be give to Bow Street Magistrate’s Court at 10 am on Tuesday 17th May 2005.

Just before the Court was adjourned, Edward Fitzgerald QC made a request for bail. He reminded the Court that Babar Ahmad was a professional man with no previous convictions. British Authorities released him without charge in December 2003 after extensive investigation. He is guilt-free of any crime in the U.K. He also stated that there would be no reason for Mr Ahmad to try to escape the country and forfeit his bail conditions. His family were present in Court, he would live in his father’s home and the U.K at present was the safest place in the World for him as he is protected by the judicial system. If he tried to escape, then the Court had already heard of the dangers that he would be exposing himself to. Mr Fitzgerald also informed the court that he has many supporters and campaigners backing him including MP’s and politicians and it would be proper to return him to the community for the remainder of the case.

Mr Hardy then stood up and looked the Judge in the eye to say a mere few words. He stated that that the Judge knew that there were grave concerns that Mr Ahmad would escape and the Prosecution were averse to him being released on bail. The Judge immediately refused the bail application by stating that the allegations were grave and the risk of continuous terrorist activity were still present and he remanded Babar Ahmad in custody until the day he will give his verdict, 17th May 2005.


Extradited Defendant Gets Life Sentence Despite Government’s Promise To Prevent It

Torture By Proxy: International And Domestic Law Applicable to “Extraordinary Renditions”.
New York Bar Association

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