Babar Ahmad should be freed now

Picture of Babar Ahmad on a laptop screen, being interviewed for Newsnight from prisonLast night, BBC’s Newsnight interviewed Babar Ahmad, the man wanted for extradition to the USA on the grounds of receiving classified information and assisting mujahideen fighters in Afghanistan and Chechnya through his website, Azzam Publications. The BBC actually had to take the government to court to overturn a ban on interviewing Babar Ahmad (indeed, they were not allowing pictures to be taken of him for a long period). They also interviewed the legal attachée from the American embassy in London, Amy Jeffress, and (together) David Bermingham of the NatWest Three, Tory MP Dominic Raab, and Mike O’Brien QC, solicitor general in the Labour government. The programme can be seen here in the UK until next Thursday (12th April).

There were also brief statements from two US officials, one a prosecutor who said that a criminal defendant in the USA has the protections of the Constitution which is “a very generous document” to criminal defendants. Amy Jeffress offered the example of someone picking up the phone in London to order a hit on someone in Florida, as if that was a clear-cut case for extradition, when in fact there are British laws that cover solicitation to murder which carry long prison sentences, although perhaps not as long as those in the USA. She also argued that judges would confer so as to decide where the harm happened, where the victims and other witnesses are, and so on. The presenter, Kirsty Wark, made the point that the appeals system was unbalanced, with the UK offering lesser chances of appeal than the USA; Jeffress responded that, in fact, seven defendants in the UK have successfully challenged extradition requests, while none have in the USA. She also countered that the American trial system was more similar to the UK’s than any other, and that prison conditions were also similar to in the UK (not specifically responding to the question of the conditions in “Supermax” prisons).

Dominic Raab noted that the US already offers a “forum” arrangement to other countries with which it has extradition treaties, and that extradition should not be decided by haggling between prosecutors behind closed doors but by judges acting according to legal principles set by the UK parliament. Mike O’Brien said that legislation had been introduced in 2006 to introduce the concept of forum so as to decide where it was appropriate to hold a trial, but was never put into practice, and the country where the accused resides, or acted, may not be where the victims or witnesses may be or where the investigation took place. David Bermingham, who said that, like 98% of defendants in the American federal justice system, entered a plea bargain and got himself (and his two co-defendants) home, compared the current extradition cases with that of Lotfi Raissi, the Algerian pilot accused of training some of the 9/11 hijackers, and said that there was no opportunity for a judge to examine the evidence so as to decide whether the case should be more appropriately held in the UK, and that it was no secret that in prisons such as AdMax Florence in Colorado, prisoners are in solitary confinement for years or even decades, and never see another human being, which is why the European Court of Human Rights has taken so long to decide Babar Ahmad’s case.

Raab then said that O’Brien’s position was untenable, that the Labour government had brought in a “lousy deal” which they had partly corrected in 2006 but never brought the correction into law, and that he hoped the Tory government would reform the system. David Bermingham said that the USA was perfectly happy to allow a forum arrangement or to give evidence, and that it had 130 extradition treaties worldwide, of which only three do not involve the production of evidence: France, which does not extradite its own citizens to the USA at all, Ireland, which does not extradite if the crime could be seen as having taken place in Ireland, and the UK, which offers no such protection. It was the UK that gave these protections up in 2003. O’Brien then said that there was a political rather than a legal crisis, and Dominic Grieve had listened to Scott Baker’s report and decided that the treaty was not unbalanced, but there was a crisis of confidence in this legislation. Dominic Raab had the last word, saying that we extradite five people from the UK for every one that comes the other way, and that he did not want to tear up the treaty, but simply have a balanced system.

I do not find the argument about “where the witnesses and victims are” convincing at all. It is most likely to be relevant to an extradition case where the crime took place in the other country, and there is little controversy about extraditing someone in such circumstances, as long as we have confidence in their judicial system. In many of the countries with which we have automatic extradition arrangements (including several European countries), this trust is misplaced; it ought to be dependant on judicial efficiency and timely requests (so, cases that have sat on a prosecutor’s desk for years should not be entertained), and the certainty that they will not be subject to inhumane or degrading treatment if imprisoned. In most of the cases currently under review, the alleged victim is the US government itself, which relies on tenuous connections to the USA such as the use of an American webserver or even a dot-com domain. In such circumstances, they should be expected to present its evidence in a British court. As British citizens, we do not pledge to obey American laws when we deal with Americans from our own homes. American law does not apply in the UK, so the American government only has a right to prevent what we do in the UK from having an effect there. If material is being sent there that is legal here but banned there (as in one ongoing extradition case), they have the right to intercept it, or order a web services company to deny service if what is being hosted is illegal, but not prosecute British citizens who have broken no law they are subject to. This treatment makes us, essentially, a vassal state.

Why do we have such a uniquely unbalanced, subservient extradition treaty that other countries have rejected? There are several possible reasons, political expediency being one of them (it could have been seen as easier to get rid of people like Babar Ahmad and Abu Hamza by shipping them to the USA, rather than put them on trial here), but there are probably deeper reasons. One of them is that the British establishment has never got over the loss of empire, and in the absence of a vast worldwide presence, the UK cannot really stand on its own two feet and assert its independence, but must act subserviently towards more powerful countries. A further reason is the entirely misplaced notion that “we need America” and that America will always come to our aid, something that did not bother Harold Wilson’s government in the 1960s when he refused to involve us in Vietnam, despite American pressure and despite the much bigger threat then from Russia. There is also the doctrine of “the Anglosphere” and a perception that America is pre-eminent among the group of English-speaking nations, which again encourages British subservience towards them — a subservience not offered by other, much weaker, countries. Britain is also not a very patriotic country, except in terms of the ceremonial loyalty offered by members of Parliament and the Armed Forces, and it is not a country which has ever been occupied or under dictatorship, and it has not had to fight for democracy or freedom from the position of not having it. There is complacency, a sense that Britain is still a free country however much freedom it signs away, and if the population as a whole do not have a strong sense of loyalty, the politicians will not have one either.

As for Babar Ahmad, he has served eight years in prison without charge, and it is highly likely that, if tried under British law, he would be sentenced to a similar period in prison unless it could be shown that his actions had led to loss of life, and it might well be less time than he has already served, or a term that would result in parole after this length of time. The demand to try him in the UK was a valid one when he was first arrested, or when he had been in prison for three or five years. Today, he has served eight years and any trial would most likely result in a sentence of time already served, which makes it a quite pointless exercise. He ought to be released immediately.

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