THE BABAR AHMAD CASE: DO U.S. PRISONS VIOLATE EUROPEAN HUMAN RIGHTS LAW?
An interview with Hamja Ahsan and Aviva Stahl
by Angola 3 News
On April 10, the European Court of Human Rights (ECHR) issued judgement in the case of Babar Ahmad and Others v The United Kingdom, making a landmark ruling on the legitimacy of solitary confinement, extreme isolation and life without parole in US supermax prisons. The ECHR denied the appeal filed jointly by six appellants, consisting of four British nationals (Babar Ahmad, Haroon Rashid Aswat, Syed Talha Ahsan, and Mustafa Kamal Mustafa AKA Abu Hamza), an Egyptian national (Adel Abdul Bary) and a Saudi Arabian national (Khaled Al-Fawwaz), who have been imprisoned in the United Kingdom, pending extradition to the United States for alleged terrorism-related activities.
This judgement is itself now being appealed to the ECHR's Grand Chamber, with a decision expected in September regarding whether or not the appeal of the extraditions will be heard. Arguing against their extradition to the US, the six appellants have asserted that the risk of imprisonment in the United States (with specific citation of long-term isolation at the notorious federal prison in Colorado, ADX Florence—also the subject of both a June Senate Hearing and a recent civil rights lawsuit initiated by prisoners alleging abuses there) would breach their right under Article 3 of the European Convention on Human Rights not to "be subjected to torture or to inhuman or degrading treatment or punishment." Ruling against the appellants, the ECHR argued that isolation in a US Supermax prison is "relative" and would become a violation of Article 3 ECHR (which prohibits torture) only if it extends indefinitely.
A third-party intervention to the European Court of Human Rights in this case was jointly submitted in 2010 by INTERIGHTS, Reprieve, the American Civil Liberties Union and Yale Law School National Litigation Project, arguing that "US legal protections against ill-treatment in imprisonment fall short of those provided under Article 3 ECHR." Furthermore, "it is submitted that any protection the applicants will receive under US law is speculative at best. The past two decades have seen a strong trend of limiting prisoner access to courts overall and restricting judicial oversight, particularly in the absence of overt physical harm. Moreover, the US Constitution affords little in the way of real protections against the documented harms of prolonged sensory and social deprivation… To the extent the United States suggests that Petitioners will be adequately protected by administrative review, the record in cases involving ADX Florence is that such procedures are largely illusory."
In this interview we speak with Hamja Ahsan and Aviva Stahl—two London-based activists working around this case. Aviva Stahl works as the United States researcher for CagePrisoners.com, a London-based human rights organization that is committed to defending the due process rights of detainees of the War on Terror. Her current work focuses on the criminalization of Muslim communities on US soil, and draws on the parallel past experiences of other communities of color. She also helps run a pen pal program in Britain that links folks across prison walls, with the aim of building relationships based on solidarity and mutual support.
An artist and curator by profession, Hamja Ahsan is the younger brother of appellant Syed Talha Ahsan, and leader of the Free Talha Ahsan Campaign. Declaring that Talha Ahsan, a British-born poet and writer with Asperger syndrome imprisoned since 2006 "deserves freedom or a fair trial in the UK," the Campaign details how "Talha Ahsan was arrested at his home on 19 July 2006 in response to a request from the USA under the Extradition Act 2003 which does not require the presentation of any prima facie evidence. He is accused in the US of terrorism-related offences arising out of an alleged involvement over the period of 1997-2004 with the Azzam series of websites, one of which happened to be located on a server in America. He has never been arrested or questioned by British police, despite a number of men being so from his local area in December 2003 for similar allegations. All of them were released without charge. One of them, Babar Ahmad, was later compensated £60,000 by the Metropolitan police after a civil case in March 2009 for the violent physical abuse during his arrest. It was evidence from this incident which formed the basis of Talha’s arrest two and a half years later."
In this interview, Ahsan and Stahl discuss the extreme importance of the upcoming Grand Chamber ruling on a personal level for the six appellants fighting their extradition, as well as the ruling’s broader significance for all US prisoners and the communities around the world targeted by the US' so-called "War on Terror." Among the many prominent figures speaking out is US author Noam Chomsky, who asserts that "with the sharp deterioration of protection of elementary civil rights in the US, no one should be extradited to the country on charges related to alleged terrorism…the prisons and the incarceration system in the United States are an international scandal," and "the shallow and evasive charges" in Ahsan's case "strongly reinforce that conclusion."
Robert H. King of the Angola 3, released in 2001 after 29 years in solitary at Louisiana's Angola state prison, recently met up with Ahsan and Stahl while touring the UK with Amnesty International, as part of their campaign demanding the immediate release of the Angola 3's Albert Woodfox and Herman Wallace from solitary confinement, where they have now been for over 40 years.
Angola 3 News: Hamja, how has Talha's arrest affected you and your family?
Hamja Ahsan: The case is extremely disturbing and upsetting. In February of 2006 the police came and raided our family home at the behest of the United States. Neither I, nor my brother, nor my elderly mother or father, have ever been to the United States. How could a foreign country come and invade my house like that?
The police took everything—my diary, my mobile phone, my CD collection, my nephew's cartoons, my camera, my university artwork and ridiculously, they even took my PlayStation 2 memory card. Six years later, other than our computers (which were returned the next day with all the content intact), we haven't gotten anything back, despite a vocal assurance that we would. If there was anything dangerous or incriminating on those computers, why would they be returned intact? We still use those computers to this day.
My parents are average, middle class Asian parents—often excessively concerned about school grades, and stereotypically displaying little emotion. Now they regularly break down crying in public and on media. Julia O'Dwyer, the mother of British student Richard O'Dwyer, who is also fighting his extradition to the US, says it's a punishment for the whole family, and you're punished before you’re even found guilty.
During these last six years we've lived in uncertainty and fear. I didn’t think that being detained without charge, trial or evidence would last this long.
A3N: Can you please tell us about who your brother, Talha Ahsan, is as a human being and a member of your family?
HA: Talha had a job interview to be a librarian the day of his arrest in July. That's the type of person he is, an academic type of librarian. He is diagnosed with Asperger's syndrome, much like in the film My Name is Khan, which has become part of our campaign work, and the cause celebre for hacker Gary McKinnon. Talha is a published poet who has drawn the sympathy and acclaim of many other distinguished novelists, poets, and musicians, including Michael Rosen, Shailja Patel, Tariq Mahmood, Zita Holbourne, Avaez Mohammad and Riz Ahmed. The two most beautiful pieces written in support of Talha were by novelist A.L. Kennedy in The Guardian.
Talha is as much a threat to the American and British public as an average librarian is. His published book of poetry in prison was launched by A.L. Kennedy in Edinburgh in 2011, and it keeps selling out and having to be reprinted. Many people are touched by his words and a young filmmaker made a documentary based around his prison poetry called "Extradition." Like so many others who write to him, Amrit Wilson, winner of the Martin Luther King award, said that despite her differences in age, religion, and gender, she found through correspondence that he was a deeply caring person.
Despite the psychological anguish of being detained without trial, he manages to care about other British causes such as Black deaths in police custody and environmental issues.
A3N: What is your response to the argument made by the European Court of Human Rights court that isolation in a US supermax prison is "relative"?
Aviva Stahl: First off, I want to quote from the statement released by Babar Ahmad and Talha Ahsan's lawyers, Binberg Piece and Partners: "It will come as a considerable surprise to the inmates of ADX Florence, the prison in question, and their lawyers who struggle fruitlessly to challenge in the US courts their continuing solitary confinement for 8, 10, or 16 years, that the prisoners’ grim isolation could be considered only ‘relative’ and its continuance as justiciable. It will be equally surprising to international lawyers, who may include the UN Special Rapporteur on Torture and the European Committee for the Prevention of Torture, that the view of the European Court as to what constitutes isolation is apparently in conflict with their own."
Secondly, it's important to note that the European Court of Human Rights made that ruling based partially on the (mis)information provided to them by the Bureau of Prisons in the United States. In its submission to the Court, the BOP maintained that supermax prisons did not constitute extreme isolation on the basis that prisoners are able to shout to each other through ventilation systems—a claim which the Court readily accepted. The BOP also claimed that prisons are able to "step-down" within three years, even though there are many prisoners in ADX Florence who have been in solitary for over ten years.
If you doubt whether ADX Florence treats inmates humanely, read about the treatment of mentally ill patients on the inside. Two lawsuits were recently brought against the BoP for their failure to treat prisoners with mental illness, which in one case resulted in a suicide.
HA: As referred to in the statement, the United Nations Special Rapporteur on Torture, Juan Mendez, wanted to intervene in the judgement to say it amounted to ill treatment. He hasn’t been allowed to visit the United States to examine the international scandal of its prison system, particularly "supermax" prisons such as ADX Florence. Amnesty International has also frequently campaigned against the use of long-term solitary confinement, for example they are staunch supporters of the Angola 3.
There was such extensive support for Bradley Manning when he faced 11 months in solitary—but what about people who face that for a lifetime?
A3N: What are the key arguments of your campaign against extradition?
HA: To start with, the extradition treaty was introduced in 2003, a few months after the Iraq war and at the height of the George Bush-Tony Blair partnership. It's part of the authoritarian, excess legislation introduced by the new Labour administration. David Blanket, the Home Secretary who introduced the legislation, now regrets it. It removes the need to have prima facie evidence.
A simple way of exposing the dangers of the new removal of this evidence bar is the case of Lotfi Raissi, an airline pilot accused of training the 9-11 hijackers. After the United States requested his extradition, he was held in Belmarsh prison; after five months, a British court ruled that there was no credibility to the charges against him and ordered his release. He was eventually awarded over £2 million in a government payout, and also won an undisclosed sum from the Mail on Sunday newspaper in a civil suit for printing false information about the charges he faced.
The extradition treaty removes the most elementary civil rights such as habeas corpus, the presumption of innocence until proven guilty, access to family, and protection from torture. And above all, the very first duty of government, which is to protect its own citizens.
It's not just a Muslim issue, as we've learned from a number of high-profile cases where the accused were white, such as Christopher Tappin, and the NatWest3 (who have been actively supporting our campaign, even though they're from a more conservative establishment background). David Bermingham wrote an excellent book called A Price to Pay, outlining the cost of this legislation. The most ludicrous case is that of Richard O'Dwyer, a 23-year-old student who ran TVShack, which isn't even a crime in Britain. There are close family relationships between all the families affected by this legislation. In sum, a bad piece of legislation bites back at all British citizens.
Aside from reforming the legislation, there is also an immediate action point for these campaigns. Babar and Talha have never even been to the United States, so why should they be tried there? We want the Director of Public Prosecutions, Keir Starmer, to review the evidence against Babar Ahmad and Talha Ahsan in full – something he has never done. In November 2011, the Criminal Prosecution Service admitted they had never even seen the evidence seized from Babar’s home! The case of Regina v Sheppard & Whittle (2010) clearly established that a person should be tried in the jurisdiction in which a substantial measure of activity took place. So even according to case precedence, the most appropriate forum for Babar and Talha’s trial is in the UK, if there is indeed enough evidence to charge them.
We want a reform of the law to include a forum bar, meaning a judge rather than a prosecutor decides the best place that a trial should took place—similar to Ireland’s extradition treaties, and also an evidence bar—an incredibly important protection that was lost when the extradition treaty was passed, as the case of Lotfi Raissi demonstrates. Even Lithuania has better protections for its own citizens in relation to extradition than Britain. In context, France doesn't extradite its citizens at all. And within Holland, a foreign sentence is served on home ground.
A3N: What is it about being tried by the US criminal justice system that these six appellants before the European Court of Human Rights object to?
AS: In their appeal to the ECHR, Babar Ahmad & others argued that being extradited to the United States would violate the rights under Article 3 of the European Convention on Human rights, namely that “no one shall be subjected to torture or to inhuman or degrading treatment or punishment”, based on the conditions they’d face once on the inside. For example, some terrorism suspects in the States have faced up to three years of solitary confinement even prior to their trial. For example Fahad Hashmi. [Hear about what he went through on Democracy Now!). Fahad was also one of many people subject to "Special Administrative Measures," which are special conditions imposed on people (both pre and post trial) if the Attorney General deems it necessary. John Walker Lindh [the "American Taliban"] for example, was barred from speaking Arabic.
But it's not only the conditions on the inside that we object to. The criminal justice system is incredibly flawed, especially for people facing charges of terrorism. There’s an immense amount of pressure to plead guilty once you get to court—in fact over 98% of people plead guilty in federal cases. Also, as many people here are aware of, the criminal justice system doesn't treat all people equally. It’s racist, pure and simple, as is utterly evident from the case of the Angola 3.
It's not just against African Americans—it's also incredibly racist against Muslims, especially those facing charges for terrorism. As I documented in a report published last year [on CagePrisoners.com], Muslims face systemic due process improprieties in the American criminal justice system, from start to finish. Just think about how widespread Islamophobia is today, how purported terrorists are put on trial by the media even before they arrive in court, and then the kinds of attitudes towards Muslims held by the American public, who are Talha and Babar’s potential jurors. As a Muslim facing charges for terrorism, it's impossible to get a fair trial today because you’ve essentially been found guilty before the trial even begins.
A3N: In the cases of both the Angola 3 and these six appellates, they are appealing to the international community about human rights abuses in US prisons. What other similarities do you see regarding these two cases?
HA: I met Robert King at one of his Amnesty International public events. He expressed strong solidarity and support for Talha and Babar, and gave my family's campaign the last word. I asked him about what I could say to Talha as words of solace as he was about to face solitary. Robert talked about the strong grassroots campaign within America against extreme forms of solitary confinement. Robert signed a book in solidarity with Talha, that I will give to him when he's freed. Talha has also shown a great deal of solidarity for the Angola 3. On the day of the Angola Three's 40th anniversary, Talha had me express solidarity on Facebook, Twitter and other social media.
AS: I think there are several similarities between the two cases. The first and most obvious similarity, of course, is the issue of solitary confinement. Both the lawsuit being brought by the Angola 3 in the federal courts in the States, and the arguments made by Babar and Talha in arguing against their extradition, say essentially the same thing: that being held in solitary confinement or supermax prisons is torture. It’s cruel and unusual punishment. It doesn't matter what you're accused of or who you are. No human should suffer through that.
But I think there’s another really important parallel between these two cases—the way in which racism and racial paranoia are used to sustain dominant power structures. Consider the case of the Angola 3. Robert King has commented many times that they were convicted—not for any crime they committed—but because they were Black Panthers. Why might a jury convict them on those grounds? Well, in 1968, FBI Director J. Edgar Hoover described the Black Panthers as "the greatest threat to the internal security of the country." How many of us would hear that now and think it was preposterous?
Today, when someone is accused of supporting terrorism—most of all a Muslim man—the details of the crime are insignificant. Just like we were socialized to fear Black men on the street, we’re taught to fear Muslim men on our planes. Certainly that aspect of racial fear is present. Men of color (whether Black or brown) have been sites of fear, thought to embody some kind of evil. That fear is integral to justifying dominant white power structures, both at home and abroad.
A3N: The April 10 ruling by the European Court of Human Rights is now being appealed to the Grand Chamber of the Court and we are awaiting a decision about whether the appeal will be considered. In the meantime, how can our mostly-US-based readership best support the fight against extradition?
HA: We’re expecting to hear in September about whether or not the appeal will be considered by the Grand Chamber. In the meantime, it would be great if folks could write to Talha.
AS: The most important is to get involved with folks in the States campaigning against supermax prisons, solitary confinement and the prison industrial complex. Remember that Senate hearings about the legitimacy of solitary confinement happened just a few weeks ago. This is a crucial time for all of us to push back against the injustices happening on the inside. Please listen to some incredibly moving testimony here. Whether it’s with Amnesty, the Angola 3, the StopMax campaign, or other prisoner solidarity work… Get involved!
A3N: In an interview conducted prior to the April ruling, SACC [Scotland Against Criminalising Communities] activist Richard Haley argued that "if the court blocks the men's extradition it will send a signal to the US that the harshness of the US penal system is damaging its international relations. On the other hand, a ruling in favor of extradition could open the door to harsher prison conditions in Europe." If affirmed by the Grand Chamber, what do you think is the significance of the Court ruling for the US, UK, and Europe?
AS: Well, of course if it stands, the ruling will give greater legitimacy to the practice of solitary confinement and the conditions inside supermax prisons. The Court has essentially ruled that these conditions "aren't that bad."
But I think it’s also important to recognize the broader context, which is that the ruling will simply strengthen ongoing trends on both sides of the ocean—of increased criminalization, imprisonment and privatization. As I'm sure your readership is aware, the prison industrial complex has reached epic proportions in the United States—over 2 million people and counting are now held on the inside. But the same things are happening here in the UK. The prison population in England and Wales has hit a record high. After the uprisings ("riots") of last summer, we saw kids being imprisoned for long periods of time for very petty theft, and the importation of policies from the US, including gang injunctions. With regards to privatization, G4S already operates several prisons in England and is bidding to run many more. We need only look at the wealth of evidence from the Olympic security debacle that privatization is a bad idea.
On the other hand, I think it's important to recognize that the ruling has given us the impetus to generate new kinds of alliances. This case represents just how important it is for different communities to work together in challenging the prison system, especially in its most pernicious incarnations. The ruling draws new links of potential solidarity across the globe—from Pelican Bay Prison, to ADX Florence, to the Communication Management Units of Terre Haute and Marion, to Guantanamo Bay, to Bagram, to HMP Long Lartin, where Talha and Babar are held.
HA: A lot of the British right wing media failed to grasp that the ruling was about prison conditions and used a lot of racist, Islamophobic language referring to Talha and Babar as "unwanted guests" and "Muslim fanatics", despite not having been found guilty of anything. This was a very terrifying and painful time for the family. I didn't sleep or eat properly for many days.
A3N: What is the ruling's significance for the communities targeted by the so-called "war on terror," led by the US?
AS: I think that for Muslims in the US and the UK, this ruling just legitimizes the human and civil rights abuses they already experience: surveillance in their homes, mosques, and schools, entrapment from undercover agents, harassment by cops and border police, even criminal convictions for activities that should be protected—like bookselling! It's to the point where Muslims' very religious and political beliefs are being criminalized.
HA: The 2003 US-UK extradition treaty effectively gives a dangerous level of extraterritorial jurisdiction to the United States. If the websites in question did have a US server, it shows that most of us living outside the US can go home, check out emails (Google, Hotmail, Facebook, Twitter) and be on a US server. Most .com, or .net addresses work the same way. Effectively most emails in the world pass through a US server. So people are no longer being picked up on the battlefields of Afghanistan and Pakistan, but from their bedrooms and family homes, in our case, in South London. This is a frightening precedent for all of us. In Richard O'Dwyer's case, the charges don't even have to constitute a crime under British law. Entrapment and sting jobs which form part of Christopher Tappin and Nosratollah Tajik’s cases, are illegal and unacceptable under British law.
AS: Consider this: Just before the ECHR released its decision, John Bolton, the former US ambassador to the United Nations, said that a ECHR veto against extradition would call "into question the ability of Europe as a whole to be an effective partner in the war against terrorism." Given the amount of pressure the US can exert on the rest of the world, are we really that surprised that the Court ruled the way it did?
The US has expanded its drone strikes into Pakistan, Yemen and Somalia. It's passed the 2012 National Defense Authorization Act, which essentially allows the US to detain anyone, anywhere, if the US alleges that they have links to al-Qaeda or associated organizations. This is just more evidence of the US government and military's broad reach, justified in the name of the War on Terror.
A3N: Anything else to add?
HA and AS: There is an event in London on Saturday, September 8, entitled "Extradite Me I'm British." It's an evening of film, prison poetry, talks, drama, comedy, talks, nasheeds around the notorious 2003 US-UK extradition treaty currently affecting British citizens Talha Ahsan, Babar Ahmad, Richard O'Dwyer and Gary Mckinnon.
This story first ran Aug. 22 on Angola 3 News, an official project of the International Coalition to Free the Angola 3. Our website is www.angola3news.com, where we provide the latest news about the Angola 3. Additionally we are also creating our own media projects, which spotlight the issues central to the story of the Angola 3, like racism, repression, prisons, human rights, solitary confinement as torture, and more. Our articles and videos have been published by Alternet, Truthout, Black Commentator, SF Bay View Newspaper, Counterpunch, Monthly Review, Z Magazine, Indymedia, and many others.
Talha Ahsan's support site:
Babar Ahmad's support site:
THE ARREST AND TORTURE OF SYED HASHMI
An interview with Jeanne Theoharis
by Angola 3 News
World War 4 Report, December 2009
Reprinted by World War 4 Report, Sept. 1, 2012
Reprinting permissible with attribution