The European Court of Human Rights will on Tuesday 10 April decide whether six men detained in British jails – 4 British citizens, an Egyptian citizen and a Saudi citizen – can be extradited to the US to face terrorism charges. The only issue that the Strasbourg court is permitting itself to consider in these cases is the likelihood that the men, if convicted in the US, would face jail conditions that breach the European Convention on Human Rights and therefore breach the UN's Universal Declaration of Human Rights. The abuses the men would suffer include excessively long sentences and prolonged solitary confinement.
But the cruelty of US prison regimes isn't the only worrying aspect of these cases. The decision to seek the extradition of each of these men looks suspiciously like a calculated abuse of due process. The story behind these decisions, if it is ever revealed, ought to tell us a good deal about relations between Britain and US and about relations between the secret state and the criminal justice systems in both countries.
On the facts so far available, the abuse of process looks particularly egregious for two of the men targeted for extradition – Babar Ahmad and Talha Ahsan, both British citizens. Babar Ahmad was arrested on a US extradition warrant in August 2004; Talha Ahsan was arrested on a US extradition warrant in July 2006. The US indictments say that both men were involved in running "Azzam Publications and its family of websites" and that they thereby provided "material support and resources to persons engaged in acts of terrorism in Afghanistan, Chechnya and elsewhere."
Whether the men were responsible for the websites, and to what degree, remains to be established. Babar Ahmad's responses in media interviews suggest that he believes that the kind of material published by Azzam was lawful, at least in the UK. Talha Ahsan's alleged role is a "marginal" one according to his lawyer, Gareth Peirce.
One of the remarkable things about the charges is that the activities that Ahmad and Ahsan are accused of were all carried out from Britain. Both men were living in Britain throughout the time relevant to the indictment. Ahsan has never visited the US. The US claims jurisdiction solely because one of the various computer servers hosting the Azzam websites was located in the US.
Another remarkable thing is that the key evidence upon which the US indictments rely wasn't obtained by US law-enforcement agencies, but by the Metropolitan Police during a raid on Babar Ahmad's London home in December 2003. According to an affidavit accompanying a domestic US warrant for Ahmad's arrest, additional evidence was obtained by British law-enforcement agencies from Ahmad's office at Imperial College, London, where he was a member of the IT staff, and from interviews that British law-enforcement authorities conducted with Imperial College students in 2004.
Babar Ahmad was arrested during the December 2003 raid on his home and subsequently released without charge.
He says that the police carried out an unprovoked assault on him during the raid. A medical examination revealed over 73 injuries. The Metropolitan Police subsequently accepted responsibility for the assault and paid him £60,000 compensation. The officers involved were acquitted in June 2011 of criminal charges arising from the incident.
They had MI5 to thank for their acquittal. It turned out that, unknown to the police, the security service had bugged the prayer room in Babar Ahmad's house. Ahmad was taken there by police after the initial violent incident and claimed that police said to him "where is your God now?" The MI5 recording, played in court, did not corroborate this, but instead revealed the police saying "lay him out and properly search him."
The police officers said that Babar Ahmad's injuries were either self-inflicted or had arisen during what they described as a "ferocious struggle" elsewhere in the house during Ahmad's arrest. MI5 seem to have possessed no recordings of that struggle.
How did it come about that Crown Prosecution Service could find no basis for a prosecution in the seized material, yet US prosecutors have been able to file an indictment based on the same material and then demand Ahmad's extradition?
One thing that certainly helped them was the Extradition Act 2003, which allows extradition from the Britain to the US to be approved without the production of any prima facie evidence.
The CPS, having insisted for years, without elaboration, that it had insufficient evidence to prosecute Babar Ahmad, now says that it never reviewed the bulk of the evidence sent to the US.
So what happened? Was the CPS negligent in its handling of the evidence obtained by the Metropolitan Police? Or did the Metropolitan Police or MI5 choose to bypass a legitimate decision by the CPS and appeal instead to the big boys across the Atlantic? Was the investigation run from beginning to end by the US, with the Metropolitan Police and MI5 acting as its gofers? Or did the British authorities take the lead in asking the US to get the job done for them, bypassing the British courts? Babar Ahmad seems to believe that is what happened. He told the BBC, in an interview broadcast on 5 April, that "someone made a decision to outsource my case to the Americans."
These questions, and questions like them, explain why more than 140,000 people signed a petition last year calling for Babar Ahmad to be put on trial in Britain, and then forced Parliament, against the wishes of parliamentary business managers, to hold a full Commons debate on Britain's extradition arrangements. And they explain why pressure is mounting for a full public inquiry into the circumstances of Babar Ahmad's case.
Amongst the allegations contained in the US indictment against Babar Ahmad, there is a claim that he possessed a drawing of the Empire State Building. Ahmad said, in an interview with the Independent newspaper in July 2010, that this was simply a tourist brochure belonging to his father. The indictment also claims that he possessed plans of a United States Naval battle group operating in the Straits of Hormuz. This evidence appears to be in doubt. The former Attorney-General Lord Goldsmith is said to have told Sadiq Khan MP that there is no proof that this document was in Ahmad's possession. These scraps of "evidence" seem to have no other purpose than to glam up the charges and invest them with a bit of a thrill.
The real reason for the dogged persecution of Babar Ahmad and Talha Ahsan seems to be a determination to inflict exemplary punishment on someone – anyone – for the existence of the Azzam websites. Evan Kohlmann, an "international terrorism consultant" favoured by the US and British authorities, left no doubt when interviewed by the BBC about the importance he attaches to Azzam. He said "there had never been a site like this."
In fact, Azzam was a product of an age that sputtered to an end after 9/11. The US indictment alleges that Babar Ahmad's involvement in Azzam began "in or about sometime in 1997." Chechnya was at that time a de facto independent state. The "Chechen Mujahideen" that Azzam is said to have supported were acting more or less in defence of this state against the forces of the Russian Federation. The British government maintained cordial relations with the leadership of independent Chechnya, though it never gave official recognition to the country. Britain continues to this day to provide asylum for Akhmed Zakayev, the former Deputy Prime Minister of independent Chechnya.
Azzam is also said to have supported the Taliban. The Taliban at that time formed the de facto government of Afghanistan. That government was recognised officially only by Pakistan, Saudi Arabia, and the United Arab Emirates, but other governments, busineses and organisations held discussions with it.
Azzam Publications described itself as "an independent media organisation providing authentic news and information about Jihad and the Foreign Mujahideen everywhere." A document on an Azzam website explained what it meant by Jihad. It said:
"Jihad is therefore an act to liberate people from the oppression of tyrants. Jihad is not illegal acts of terror against innocent people."
Babar Ahmad told the BBC last week:
"I believe terrorism to be wrong and I believe the targeting and killing of innocent people to be wrong."
In the late 1990s Azzam's activities may very well have seemed acceptable, or at least tolerable, to the British government. The contest between Osama bin Laden and the United States was beginning to be a feature of world affairs, but its consequences were still modest. After 9/11 that contest became a defining part of the world's superstructure (the infrastructure was of course still built from the usual stuff). The US government and its allies have since then been keen to discourage Muslims sympathetic to 90s-style armed jihad from joining the struggle against the US. The method they have chosen is terror – Guantanamo Bay, torture, draconian domestic legislation, surveillance, Islamophobia. It isn't important to the authorities for justice to be done, but it is important for punishment to be seen to be done. So someone has to go to jail on behalf of Azzam Publications.
There's a way out of this. Speaking about his alleged involvement in Azzam Publications, Babar Ahmad told the BBC:
"The right place for me to respond to this and the other allegations is not in an interview, as much as I would want to, but for me the right place is in a court of law.
"I would urge the director of public prosecutions to please put me on trial in this country and to find out what has gone wrong in my case."
Talha Ahsan wants the same thing – a trial in this country, if there is any evidence against him. Both he and Babar Ahmad have already spent more time in jail – without charge or trial - than would be likely to have resulted from their conviction in a British court.
The terrorism laws that have piled up in Britain over the last 12 years are unjust. They allow people to be jailed for behaviour not previously held to be criminal. Neither Babar Ahmad nor Talha Ahsan nor any other "terrorism suspect" will get a fair trial in Britain until these laws are repealed. Ahmad and Ahsan will nevertheless get fairer trials in Britain than in the US. Their trial here would at least provide an opportunity for a British jury, watched by the British public, to examine the factual basis for the evidence against the men.
In Britain as in the US, Babar Ahmad's lawyers will probably have to deal with testimony from "experts" like Evan Kohlmann – a serial prosecution witness – who will spin glamour and danger out of the facts by presenting circumstantial evidence and guesswork as science and scholarship.
But they will not have to deal with testimony obtained through US-style "plea-bargains" – arrangements that guarantee an accused person a greatly reduced sentence in exchange for testimony that assists the prosecution. Many jurisdictions permit deals of this sort, but the extreme length of sentences in the US, coupled with the prevalence of solitary confinement, mean that testimony obtained through a US plea-bargain is testimony obtained through the threat of torture.
Babar Ahmad's case has been the focus for a good deal of speculation. The proper place for examining the facts of a criminal case is a court room. Speculation is not ordinarily a good thing, but it is sometimes better than silence.
If Babar Ahmad is extradited to stand trial in the US, the speculation is likely to turn into the frenzy of a full trial-by-media. That kind of frenzy is commonplace in the US because the US legal system, unlike the British one, places few restraints on the media while a case is going through the courts. Much of the US media coverage is likely to be hostile to Babar Ahmad. Some of it may focus on uncovering the machinations of the British and US law-enforcement agencies in ways that would be commendable, were it not for the damage done to Babar Ahmad's chances of a fair trial.
If Ahmad is charged in the UK, further speculation will be stopped by the contempt of court law. It may turn out that any public inquiry into the circumstances of the case will have to be put on ice. If we want to find out what happened, and how to stop it happening again, we will need patience and determination.