Questions about the role of a British terrorism "supergrass" highlight the shoddiness of Britain's justification for the war in Afghanistan and raise concerns that the British justice system is about to become entangled in an unjust "trial" at Guantánamo Bay.
Saajid Badat – a British man who apparently plotted to explode a shoe-bomb on board a passenger aircraft in December 2001 and then changed his mind – testified recently at the US trial of al Qaeda spokesman Sulaiman Abu Ghaith. Badat's role as a "supergrass" raises some awkward questions about the reliability of his evidence. It is also a reminder that the public record on key events in the "war on terror" is very thin indeed.
Badat was convicted in Britain in 2005 on a single charge of conspiracy to destroy a passenger aircraft whilst in flight. He then served about 5 years in jail. There is an outstanding US grand jury indictment against him on a variety of charges related to his alleged part in the attempt by Richard Reid to shoe-bomb a passenger aircraft. Badat would presumably be arrested if he set foot on US soil. He therefore testified by video link from Britain.
Badat gave evidence about his experience in al Qaeda circles in Afghanistan. When cross-examined, he said that he had never met Abu Ghaith. Nothing in his testimony related directly to the accused. Instead, he gave a picture of al Qaeda's activities before and during the brief period when Abu Ghaith was acting as the organisation's spokesman.
That probably wasn't necessary. It is quite difficult to believe that, even without Badat's testimony, a US jury would have acquitted a person presented to them as Osama bin Laden's spokesman. But just in case the jury did need some encouragement to return a guilty verdict, they were shown a video of the burning Twin Towers – even though prosecutors did not allege that Abu Ghaith had played any part in the 9/11 plot.
Abu Ghaith was convicted on 26 March of conspiring to kill Americans and providing material support to terrorists. A sentencing hearing is scheduled for 8 September. Abu Ghaith's lawyer has indicated that he intends to appeal.
In this particular case, Saajid Badat's story amounted to little more than a decorative flourish. It probably had more impact on the media coverage of the case than on the verdict reached by the jury. But a larger issue is at stake.
al Qaeda in Afghanistan
Saajid Badat's testimony provides rare evidence that terrorist operations planned and initiated by al Qaeda in Afghanistan were underway in the months immediately after 9/11. It doesn't amount to very much - just the shoe-bomb Badat chose not to use, a second (untraced) shoe-bomb that he says he gave to Malaysian terrorists, and the two shoe-bombs that Richard Reid attempted to use, allegedly produced from the same source as Badat's bomb. But there's nothing else in the public domain to show that al Qaeda's presence in Afghanistan posed a continuing threat to the US.
The US began its attack on Afghanistan on 7 October 2001. It had by no means exhausted the prospects for negotiating with the Afghan government a way of dealing with the threat from al Qaeda and of bringing 9/11 suspects to justice. It had not sought authorisation from the UN Security Council for its attack. Instead, it chose to base its response on the right to self-defence, recognised under Article 51 of the UN Charter.
The usual starting-point, in international law, for deciding whether this right is applicable, is a 19th century dispute (the Caroline case, named after the US ship involved in the incident) between the US and British Canada. The incident concluded with the acceptance by both sides that the right to self-defence is triggered only if there is "a necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment for deliberation." The US had a track record prior to 9/11 of trying to claim more extensive rights than this principle might be thought to imply. It has subsequently asserted a right of pre-emptive self-defence.
Customary international law isn't like domestic law. It can change without any new "laws" being passed, because it is built from the evolving policies and practices of nations, which are of course influenced by the policies and practices of big players like the US. That means, unfortunately, that it would be going too far to say that the US doctrine of pre-emptive self-defence is unequivocally outside the law. The international community seems to have more or less endorsed the 2001 US-British attack on Afghanistan, and perhaps by implication to have accepted a limited right of pre-emptive self-defence within the context of the "war on terror". But this is not a principle that governments are anxious to see tested in court.
In January 2010 Scottish lawyer Ian Hamiltion QC wrote an article calling on officers in the British Army to refuse to participate in the Afghanistan war. He noted that his call would be a crime if the war were a legal one, noted the absence of democracy in the British government's decision to go to war, and challenged Lord Advocate Elish Angiolini to prosecute him if she believed that the war was legal. She has not done so.
The supposed existence of terrorist operations initiated from Afghanistan and continuing through the autumn of 2001 was at best a thin justification for war. It was no justification at all within the long-accepted legal framework of the Caroline case. But it might go a long way towards maintaining public and diplomatic acceptance of the US action.
Shoe-bombs on a Pam Am flight
On 22 December 2001 Richard Reid attempted unsuccessfully to detonate shoe-bombs on a Pam Am flight from Paris to Miami. He was restrained by passengers and crew members, and the aircraft subsequently landed in Boston – the nearest airport. He was charged with eight offences connected with his actions on the plane, pleaded guilty to all of them and was given a life sentence.
Saajid Badat was arrested at his home in Gloucester on 27 November 2003. What happened next was explained by prosecutor Richard Horwell in his opening speech when Badat appeared for sentencing at the Old Bailey on 22 April 2005, having pleaded guilty at the end of February.
At first, Horwell told the court, Saajit Badat said to the police that he would not talk to them without a legal representative present. He was taken by police car from one police station to another. At some point in the journey, an officer in the car received a call from police searching the college that Badat attended in Blackburn. They were having difficulty identifying Badat's locker there. Badat volunteered the information that allowed them to identify it.
Then, according to prosecutor Richard Horwell:
"there was further conversation in the car and after a period of silence, Badat said the following:
'I was asked to do a shoe bombing like Richard Reid. Under my bed is a green suitcase…'"
Badat then explained that one part of the bomb was hidden under his bed, and the other part was in a suitcase elsewhere in the house. He said that he had been given these items in Afghanistan and that he now wanted to help the police. Notes were taken of the conversation, and Badat later signed them.
He was then interviewed in a police station without a legal representative and gave some further details, again set out in the speech by Richard Horwell. A further 22 interviews were conducted in the presence of a legal representative. Badat made no comment during these interviews.
Police searching Badat's house in Gloucester found the bomb components, exactly as Badat had described them. About 100 neighbouring homes were evacuated while the search was carried out.
These events caused consternation locally, where Saajid Badat was well-liked. Over 400 people attended a public meeting shortly afterwards. Overwhelmingly, they took the view that Saajid Badat was innocent. There were calls for Home Secretary David Blunkett to resign.
Richard Horwell, in his speech at the Old Bailey in 2005, said that a comparison of Saajid Badat's bomb with the bombs used by Richard Reid revealed that "they were plainly made at the same time by the same group." This claim had already been made in an October 2004 press release issued by the US Department of Justice.
Taken together with Badat's statement that he had obtained the bombs in Afghanistan, the forensic evidence contradicts Richard Reid's claim to have made his own shoe-bombs using material obtained in Europe.
Richard Reid perhaps wished to blow smoke in the eyes of the investigation. The British and US investigators perhaps wished to discover a material link with Afghanistan.
The case that Richard Horwell put before the Old Bailey was based on the limited admissions Badat had made to the police (without a lawyer present) coupled with his known movements and email correspondence. Badat and Reid were said to have been participating in a plot to explode shoe-bombs on board trans-Atlantic passenger aircraft nearly simultaneously.
On 14th December 2001 Badat sent a message to his presumed handlers saying: "I'll keep you informed but you'll have to tell Van Damme that he could be on his own."
"Van Damme" is said to be a reference to Richard Reid and the email is said to be an indication that Badat was pulling out of the plot. That appears to be what happened. Richard Horwell told the Old Bailey that there was no evidence that Badat had any further contact with his handlers.
Video testimony given by Badat at the 2012 US trial of subway bomber Adis Medunjanin and at this year's trial of Sulaiman Abu Ghaith confirms the narrative set out by Richard Horwell in 2005.
Badat was given a 13 year jail sentence. The judge - Mr Justice Fulford - said that the lenient sentence was intended "to send out a strong message that if would-be terrorists turn away from death and destruction before any lives are put at risk, then the Courts will reflect, in a significant and real way, any such genuine change of heart in the sentence that is handed down."
Mr Justice Fulford was not being completely frank
It is now clear that Mr Justice Fulford was not being completely frank. At the 2009 court hearing that dealt, in secret, with Badat's "supergrass" agreement, prosecutor Richard Whittam QC said:
"Mr Justice Fulford made a number of efforts to see what mechanism could be used so as to not make it obvious the sentence that was being passed was largely below what would ordinarily be passed."
It appears from this and other remarks made at the 2009 hearing that Mr Justice Fulford had before him, in 2005, material that indicated that Badat was cooperating with investigators, that he wished to reflect this in the sentence he handed out (though the legislation to faciliate formal "supergrass" agreements was not yet in force), and that he wished to avoid alerting people targeted by terrorism investigations as to what was going on.
By the time of Saajid Badat's guilty plea at the Old Bailey, a grand jury indictment against him had been on file for 5 months at the US Federal Court in the District of Massachusetts. The indictment was filed on 1 September 2004 and was "sealed", making it a criminal offence in US law for anyone to disclose its existence until unsealed. The heading on the document shows that it was a "superseding indictment," but there seems at present to be no public trace of the indictment that must have preceded it, nor any indication of the date on which it was filed.
The superseding indictment was unsealed on 4 October 2004. It held Badat responsible for having played a part in Richard Reid's shoe-bomb plot – something that he was not charged with in Britain. Were he to be extradited to the US to face these charges, he would be likely, if convicted, to be sent to prison for a very long time and he would be likely, like Richard Reid, to held in solitary confinement in the ADX Florence federal supermax prison.
In passing sentence at the Old Bailey, Mr Justice Fulford must have been aware that a short jail term could clear the way for Badat to be extradited to the US. This fact of life is never referred to in discussion of the case, and perhaps sits rather awkwardly with the very clear hints that Badat's lenient sentence was a reward for his cooperation.
An incentive for cooperation
The US indictment gave Badat a very powerful incentive to continue or extend his cooperation with terrorism investigators if he had any reason to believe that doing so would protect him from extradition. Or alternatively, it might have led him to enter into an understanding with the US authorities, preparatory to a future plea bargain, that would take the sting out of extradition to the US.
The legal mechanism needed for the British authorities to formalise at least part of their understanding with Saajid Badat came into existence on 1 April 2006. Under the Serious Organised Crime and Police Act (SOCPA), prosecutors were empowered to sign a contract with an "assisting offender", who may then be given a discounted sentence.
The new provisions were a partial revival of the discredited "supergrass" system used in terrorism cases in Northern Ireland in the 1980s, but with the difference that 1980s supergrasses were offered immunity from prosecution rather than a reduced sentence.
A SOCPA agreement that carried with it – either formally or on a nod and a wink – a promise of protection from extradition would, of course, be very similar to the deals that were discredited in Northern Ireland.
At some point Saajid Badat signed an agreement with British prosecutors committing him to testify in US cases. His case was then referred back to the court for his sentence to be re-considered. It came before Mr Justice Calvert Smith on 13 November 2009, in a hearing conducted in great secrecy.
The secrecy was said to be necessary both for Saajid Badat's personal safety and in the interests of justice. By order of the judge, secrecy was to be maintained until further order, with the intention that the proceedings would be made public once Badat was required to give evidence in public. That came about on 16 April 2012, with the announcement that Badat was to provide evidence for the trial in the US of Adis Medunjanin.
Those present at the secret hearing included prosecution and defence counsels, a representative of the US Department of Justice, Saajid Badat himself and a number of people making up his escort.
Overwhelming importance to the administration of justice
Saajid Badat was described by his counsel, Sarah Forshaw QC, as "highly trusted within the higher echelons of the organisation" and "well-placed" to provide "extraordinary information."
All this seems a little overblown in view of Saaji Badat's youth at the time of the events in question. He was just 19 when he entered Afghanistan in early 1999 and 22 when he broke all contact with al Qaeda.
Nevertheless, prosecuting counsel Richard Whittam QC said that Badat had been assessed as being of potential use in between 12 and 18 trials. Later, when the court proceedings were made public, the CPS said that during his time in prison Badat had "fully cooperated" with both the Metropolitan Police and the FBI.
Mr Justice Calvert-Smith said that one of the matters referred to in the documents before him was "of international and overwhelming importance to the administration of justice, not just in this country but worldwide."
Possibly this refers to the case of Khalid Sheikh Mohammed, the supposed 9/11 mastermind. In his video testimony at the US trial of Adis Medunjanin in 2012, Badat said that he felt an "almost a moral obligation to give evidence against Khalid Sheikh Mohammed", apparently having come to believe that Khalid Sheikh Mohammed and other al Qaeda leaders had exploited their recruits.
Mr Justice Calvert-Smith's remarks might now be rather an embarrassment to him. On the day of the SOCPA hearing in London, US Attorney General Eric Holder announced that Khalid Sheikh Mohammed – whose case was before a military commission at Guantanamo Bay – would be transferred to a civilian court in New York. But on 4 April 2011, Eric Holder announced that the case was being transferred back to Guantanamo. It can no longer be said to have anything to do with the administration of justice.
The effect of all this is that a deal brokered by a British court may lead to Saajid Badat receiving a reward within the British justice system for providing evidence to a Guantanamo tribunal that does not meet international standards of justice.
Saajid Badat said in his 2012 and 2014 video testimonies that he met Osama bin Laden many times. That information may also have been in the documents before Mr Justice Calvert-Smith. If so it might account for the odd sense, beneath the restrained legal language, that the judge and the lawyers were rather star-struck.
In the end, Mr Justice Calvert-Smith reduced Badat's sentence from 13 years to 11 years. This apparently modest adjustment was enough to allow Badat to make an immediate parole application, which the judge agreed to facilitate. In his formal remarks, Mr Justice Calvert-Smith said that he had been unable to give a greater sentence discount because the public would be shocked by a sentence lower than 11 years. But the earlier court-room discussions suggest very strongly that his main motive was to get Badat out of jail in a way that would not alert those against whom Badat would be providing evidence.
According to Mr Justice Calvert-Smith, Saajid Badat was motivated by "a complete change of heart and a desire to expose those who would use one of the world's great religions to commit very serious crimes."
Perhaps so. But this observation does nothing to clarify the pressures that Saajid Badat is under. And it does nothing to help a jury or the public to decide how much trust to place in Badat's testimony.
Saajid Badat appears to be in line for decades of incarceration at ADX Florence, should the US choose to request his extradition from the UK. The mechanism that is either preventing his extradition or mitigating Badat's concerns over it is completely invisible. As long as that remains the case, his testimony is even less reliable than evidence obtained under the supergrass system that Britain abandoned in the late 1980s.
Saajid Badat is expected to testify by video link in the New York trial of British terrorism suspect Abu Hamza later this month. He is also expected to testify by video link at a sentencing hearing scheduled for July in the cases of Babar Ahmad and Talha Ahsan, two British citizens who were extradited to the US in October 2012 after a long legal battle. In December 2013 they pleaded guilty to terrorism-related charges as a result of a plea bargain with prosecutors.