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High Court Drama: Day 1

Tuesday 11th July 2006

The High Court appeal hearing against the Home Secretary's decision to extradite Babar Ahmad began at the Royal Courts of Justice on Tuesday 11th July, 10.35 am . Meanwhile, over 200 supporters were slowly gathering outside the courthouse for the lunchtime protest.

Babar Ahmad was present to hear the proceedings via video link from Woodhill Prison. He was joined by Haroon Aswat, also detained at Woodhill and facing extradition to the U.S. on terror charges. The judges: Lord Justice Laws and Mr Justice Walker, entered a packed court room. The Judge commented on the need for more seats for members of the public, adding that it was important that they too should have the opportunity to witness the appeal.

Representing both appellants was Mr Fitzgerald QC. He began by outlining the four main points of appeal that are common to both cases, all of which centred on the risk of discriminatory treatment should they be extradited to the U.S:

• The risk of detention and trial under Military Order Number One as Enemy Combatants: from previous hearings, the Court found that the detainees were eligible for such a tribunal, and were at real risk, except for the intervention of a diplomatic assurance from the U.S. Embassy in London .

• The risk of Extraordinary Rendition: this risk, unlike the above, is not barred by the diplomatic assurance. Therefore there is a very real risk of this occurring.

• The risk of Special Administrative Measures (S.A.M.s): These are discriminatory measures, since they are applied disproportionately to Islamic suspects, and not to non-Islamic suspects facing similar charges.

• The risk of being exposed to evidence derived from torture and inhuman treatment, which contravenes the Geneva Convention.

Mr Fitzgerald went on to elaborate on each of the points. Speaking on Military Order Number One, he highlighted that should the defendants be designated as Enemy Combatants, it would be an abuse of their human rights under Article 6 of the Geneva Convention. The Judge confirmed that the two defendants had already been identified as fitting the description to be designated as Enemy Combatants, and that this was not in question.

Mr Fitzgerald clarified this by adding that the defendants only fit this definition due to the allegations made against them by the U.S. With those allegations unproven, and with the implications being so grave, the U.S. designation of ‘Enemy Combatant' on the defendants was described by the QC as a “flagrant denial of justice”. The Judge agreed with the QC that with the exception of Extraordinary Rendition, the greatest risk to the defendants' human rights was Military Order Number One.

The Judge then asked if the President of the United States can be deemed as a source of law, since in the UK , on the whole, the Executive is not a source of law. Mr Fitzgerald argued that the U.S. President, both constitutionally, and as the Commander in Chief, did have to power to determine and execute laws. The President's status meant that his word, and views on the threat from terrorism, could be regarded as statute. This point was relevant as it highlighted the arbitrary nature in which a suspect could be classed as an Enemy Combatant and put before a military tribunal. The Judge also raised concerns that the President of the U.S. not only had the right to implement Military Order Number One against suspects, but was in fact duty-bound to do so. This clearly put the worth of the diplomatic note in serious doubt – clearly it could not stop the President from carrying out his duty.

Mr Fitzgerald went on to argue that those deemed to be a threat were not always tried, and often they were detained without any indication that there ever would be a trial. As a result, “hearsay” and evidence obtained from torture is allowed to be used to detain a suspect. This ‘evidence' in turn is deemed admissible in a military trial under Military Order Number One, and deemed to have “probity value”. Furthermore, there are no provisions for the defendant to appeal to the U.S. State Judiciary, or an International Court of Law, while evidence can be given in the absence of the defendant in breach of the Geneva Convention. Finally on this point, the QC stated that suspects were not being detained in order to be tried, but in fact were being detained for interrogation. The Judge endorsed these concerns, and accepted that the defendants were at real risk from Military Order Number One, in the absence of any assurances.

Mr Fitzgerald then went on to argue against the validity of the diplomatic assurances provided by the U.S. In the memorandum, the U.S. assures that they will neither seek, nor carry out the death penalty against Babar Ahmad, and that he would be tried in a federal court with full panoply of rights, and not in a military tribunal. While the previous Senior Magistrate Judge had been “satisfied” with the assurances of the diplomatic note, even he accepted that it did not fully protect the rights of the individual, since it still did not permit a verdict to be challenged.

Mr Fitzgerald highlighted that while the diplomatic note claimed to protect against Military Order Number One (a claim that is questionable given that the U.S president may be obliged to overlook the assurances for National Security) it cannot protect against Extraordinary Rendition, since the latter is not a legal act. The QC argued that the value of the diplomatic note was dependent on past records of Anglo-U.S. extradition, and that it reflected no more than an intention to protect the defendant. It could not however guarantee protection, and was susceptible to changes in government decision and circumstances.

The Judge accepted that the note was not binding on the U.S. government, but raised the point that most magistrates would be satisfied that a “great friendly nation” was unlikely to violate its assurances to an ally. Mr Fitzgerald responded by arguing that in the current political climate, the Court could not rely on such assumptions.

Mr Fitzgerald highlighted previously failed cases of diplomatic assurances. He also noted that in most cases, diplomatic assurances were consistent with the Laws of the State, ensuring that normal legal proceedings would take place. In this case, the U.S. is giving assurances to a stance that requires them to contradict their own laws – i.e. not implementing Military Order Number One, when this has been their consistent practice towards Enemy Combatants. In view of such a conflict, the QC argued that it is highly likely that the assurances would be violated. He closed by arguing that diplomatic assurances cannot merely be accepted with good faith, but must be questioned and looked at within the full political context.

During the morning session, there was a brief disruption to the hearing by a member of the public who claimed to be sister of one of the appellants. The lady walked in and interrupted the Judge, whilst advised repeatedly she was not allowed to do so. She said to him, “Put me on the plane to Washington instead!” Much to his amusement, she also mistook Mr Fitzgerald as being the prosecution barrister, to which he jokingly took offence. She was asked to remain quiet but then eventually left the courtroom mumbling, “It's all lies, lies, lies!” A group of reporters scurried after her in the hope for a story from “the sister”. However, it turned out that she was a passionate member of the public unrelated to either of the appellants and unknown to either of the families.

Throughout the session, the Judge had questioned and prompted the Defence counsel to challenge the extraditions in even greater depth, which resulted in a more robust and clear case against the U.S. Points yet to be covered include further analysis of the validity of diplomatic assurances given by the U.S Government, the practice of Extraordinary Rendition and the application of Special Administrative Measures. The Defence counsel continues, and is expected to conclude its case on Wednesday 12 July, after which the Prosecution will take over.