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High Court Drama: Day 2

Wednesday 12th July

The appeal hearing resumed at 10.30a.m. on Wednesday 12 July at the High Court. The Defence counsel continued to outline the points upon which they were appealing.

Diplomatic Assurance

The U.S has sought to minimise the risk of Military Order Number 1 to Babar Ahmad by providing a diplomatic note. This unsigned document originated from the American Embassy and was produced initially at the Magistrate's Court last year.

Edward Fitzgerald QC continued on the subject of the diplomatic note, and its limitations in protecting the defendants from Military Order Number 1. It was highlighted that, in the U.S, the defendant is not allowed to challenge a breach of the diplomatic note. Thus the note is not legally binding on the U.S. executive and there is no legal framework that would prevent or discourage the President from breaking the terms of the note. Mr. Fitzgerald added that if the U.S. administration was to change or a new overriding rule was introduced substituting the Military Order Number 1, the diplomatic assurances would be rendered obsolete. And finally, he argued that it was most likely that the diplomatic note was not a binding obligation under international law. In short, the note's capacity to safeguard the defendants' human rights was highly questionable.

Despite all the occasions on which the U.S. has violated international law and taken unilateral action, often regardless of the advice or stance of the UK , there remains a disproportionately high degree of trust on the word of the U.S. administration among Britain 's legal and political establishments. Thus the Judge made the counter-argument that the Court should not make assumptions on the good faith of the U.S, and that they would have to trust the U.S. President to respect the terms of the diplomatic note. While there was no doubt that the President could breach the note if he so decided, the Court could not assume that this would happen. It was evident that the Judge at this stage did not share the Defence counsel's reservations on the U.S. government's record on human rights and adherence to international law.

Mr Fitzgerald responded strongly, arguing that in the ‘War on Terror', the U.S. President has generally gone against international law when he has perceived the needs of the State to take precedence. He was not suggesting that the U.S. did not intend to respect the diplomatic note, but the Court should acknowledge that the President had committed himself to pursuing the ‘War on Terror' “by all necessary means”, and was “duty-bound” to designate Babar Ahmad an Enemy Combatant if he perceived it to be necessary for National Security. For the U.S. President, the consequences of going back on a diplomatic note would not be as great as the domestic political consequences of going back on his perceived duty. In such a scenario, the good faith and alliance between the UK and the U.S. would count for little. Moreover, there were no precedents of the U.S. President complying with assurances regarding terror suspects. As a matter of principle, the Defence QC argued that the assurances should not be accepted by the Court when there had been no precedents to base them on.

Extraordinary Rendition

The QC highlighted this as one of the biggest risks to the defendants as it was not even mentioned in the diplomatic assurance. The Prosecution has previously made the case that while Extraordinary Rendition was a possibility with all Enemy Combatants, it was not practiced with suspects already on U.S. soil. Mr Fitzgerald refuted this, pointing out the example of Maher Arar, a Canadian-Syrian citizen who was abducted from JFK airport and transported to Jordan for interrogation.

The Defence counsel then went on to explain that there was a significant body of evidence that showed that Extraordinary Rendition occurred, much of this resting on reports by Human Rights NGOs and media reports. A report from Human Rights Watch also raised serious questions about the diplomatic note; the U.S. had obtained assurances from the Syrian government that Maher Arar would not be tortured, and yet this assurance was breached during Arar's 10 month detention in Syria . While this remained the only identifiable case of rendition from U.S. soil, the QC explained that they were fortunate to have even one documented case, and that it was likely there were other such cases. He also highlighted the case of Al-Marri, the sole remaining “Enemy Combatant” on U.S soil who was threatened with Extraordinary Rendition if he did not comply and give the required evidence.

Furthermore, according to Alberto Gonzales, the U.S. Attorney General, the prohibition of inhuman treatment and torture in the U.S. does not apply to aliens. Therefore assurances would not protect a non-U.S. citizen if extradited to the U.S. The Judge added that while the U.S. denies the use of torture, it must be remembered that their definition of torture was markedly different from that of the UK and the European Convention on Human Rights. Thus those denials had to be placed into context, making it very difficult for the UK to accept the U.S. assurances against torture.

The Judge questioned the accuracy of the reports used by the Defence as evidence of torture and rendition. Mr. Fitzgerald argued that these reports had obtained affidavits and key interviews with those affected. There had also been interviews with CIA officials such as Michael Scheuer that corroborated the evidence. The Judege eventually agreed that a risk assessment had to be made, and that in such grave cases relating to a suspect's human rights, evidence from usually inadmissible sources (such as media reports) had to be taken into consideration.

Edward Fitzgerald QC concluded on this subject that:

• The Court should accept the overwhelming evidence that Extraordinary Rendition and interrogation by torture did occur.

• There was a high and real risk that it would be applied to the defendants.

• If it occurred, this would be a flagrant abuse of their human rights and Article 3 of the Geneva Convention.

• Finally, even if there were assurances against their rendition and torture during detention, the greatest risk of Extraordinary Rendition would come after the detainees' acquittal, when they would be outside of the terms of diplomatic notes and the agreed terms of the extradition.

There appeared to be consensus and shared anxiety between the Defence counsel and the two Judges over the risk of Extraordinary Rendition being applied to Babar Ahmad and Haroon Aswat.

Defendants' Liability to S.A.M.s (Special Administrative Measures)

The QC began by outlining what S.A.M.s entailed. They involved lengthy periods of solitary confinement, restriction to contact with family and the outside world, and restrictions on attorney-client discussions, which is a breach of the defendant's rights.

Furthermore, they were more likely to be applied to alleged Islamic terrorists. Thomas Loflin III, the expert advisor who had given testimony in the previous hearings, had argued that if the suspect was deemed as an ‘Islamic terrorist', it was almost “inevitable” that S.A.Ms would be applied to him. There were also examples of terror suspects who were not Muslim and who were not put under S.A.M.s. The QC argued that the main complaint with S.A.M.s was that they were discriminatory against Muslims

Babar Ahmad's solicitor Mrs Gareth Peirce had repeatedly asked the U.S. Prosecution to provide the numbers of suspects detained under S.A.M.s and the proportion of Muslims detained under S.A.Ms in the U.S both pre-trial and post-trial. Despite these requests having been made consistently for over a year, the numbers had never been supplied. The Prosecution also claimed that there were non-Muslims who were detained under S.A.M.s, but again these figures were not provided.

The QC alluded to their frustration on this issue, particularly as the Prosecution had on previous occasions goaded the Defence, saying “You don't know the figures.” Having highlighted this, they had refused to then pass on the figures which only they had access to. This clear unwillingness to cooperate and hand over important information that might aid the Defence counsel's case merely supported and consolidated their argument.

The Judge said he would look into this matter and try to secure the necessary information from the U.S. Prosecution.

Defence against the extradition charges

Edward Fitzgerald QC then made a robust challenge to the initial extradition charges against Babar Ahmad. These included inciting support for the Chechen army and the Taliban in Afghanistan on a website. The U.S. claimed that such support amounted to acts of terrorism.

Whether the allegations were true or not, Mr. Fitzgerald reiterated his original point from the earlier hearings that the Taliban, and indeed the Chechen mujahideen, were at the time (in the early to late 90s) classed as the de-facto governments in their respective countries. Support for a state regime could surely not come under terrorism.

The Judge questioned the QC by alluding to the law which states that any threat to the public for political ends could be categorised as terrorism. “Why,” the Judge asked, “should the Taliban and the Chechen Mujahideen not then be classed as terrorist organisations?”

Mr Fitzgerald QC gave the excellent response that the same could be said of the British and U.S. armies in Iraq , under the legal definition. The law did not exclude state armies, and as a result any act of violence against the public for political ends could be classed as terrorism.

The QC then drew attention to the Zakayev case. The Russians had wanted to extradite him from the UK on allegations of banditry and murder against the Russian army during its conflict with Chechnya . The Judge in that case had ruled that this was not an extraditable crime, and that the killing of combatants during a civil war – during which 100,000 civilians had been carpet-bombed in Grozny - could not be classed as terrorism.

Mr. Fitzgerald argued that the same criteria should be applied to the Taliban. Thus merely supporting the Taliban or the Chechen Mujahideen on a website could not be classed as terrorism, rendering the extradition charges against Babar Ahmad as groundless.

The Defence counsel had made a strong legal case against the extradition of Babar Ahmad and Haroon Aswat, at times prompting the Judge to openly concede the validity of their arguments and the risks to the defendants' human rights should they be extradited.

At about 3pm the Prosecution took their stand to argue for the extradition of the two defendants on behalf of the U.S. The Prosecution barrister, Mr Hugo Keith, launched into a recital of laws and legal terms with misleading bravado. On several occasions the Judge had to interrupt to correct and clarify his interpretations of the law.

After a long build-up, the Prosecution eventually came to address the arguments made by the Defence counsel, and virtually denied point-blank every point that had been carefully argued by the Defence. He argued:

• The suspects were not under risk of Military Order Number One; they would not stand before a military tribunal, but they would be tried in a federal court under domestic law. The Judge immediately contested this point, stating that a military tribunal ordinarily came within the terms of the extradition, and remained a risk to the defendants. The Prosecution went on to say that the Judge was indeed right, but what he had meant was that the President had the right to waive Military Order Number One. He argued that the President was not duty-bound to commission a military tribunal, but that this was a “plainly discretionary” power. Furthermore, the President would most certainly respect a diplomatic note.

• On the subject of diplomatic assurance, the Prosecution asserted that there would be no difficulties in monitoring the assurance and that it was being adhered to. He argued that everything was reviewable and given that the U.S. was a “mature democracy” there was “no reason” to doubt they would keep to their assurances. Lastly, he threw in somewhat opportunistically that the assurances were binding under international law, at which point the Judge flatly disagreed with him stating that there was no evidence for this.

The Prosecution QC retracted his last point, but reiterated that the U.S. was a friendly democratic nation, and that there were no precedents to suggest they would not abide by their agreements and international law.

At 4.30 pm , the Court adjourned till the next day, when the second Prosecution barrister, Mr. John Hardy was due to speak and conclude the Prosecution's case.