“I have no rights. Abu Qatada [whom the government wants to deport to Jordan] is walking the streets of London today and we cannot extradite him. He has more rights than I have. If I was a terrorist, I would not be going to America. I think it's a shame, a disgrace.”
It seems that Tappin didn’t do any research on the legislation that expedited his extradition - a bilateral treaty between the United States and the UK, signed by Bush and Blair in 2003. (The treaty did not officially come into force in April 2007 - when it was finally ratified by the Senate - but was honoured by UK when it enacted the rest of the Extradition Act of 2003.) If Tappin had done a quick Google search, he probably would have found one particularly informative 2006 Times article, written amidst the NatWest Three controversy. The article is entitled, “One-sided treaty was meant to handle terrorist suspects”, and the second sentence reads the following: “The treaty, negotiated in the wake of the 9/11 atrocities, was intended to speed up the extradition of terrorist suspects”.
In a June 2011 report, Parliament’s Joint Committee on Human Rights (JCHR) issued a report calling for the Government to renegotiate the UK’s extradition treaty with the Untied States. You can learn more by reading Liberty’s submission to the Joint Committee, but here’s a summary of the most pressing civil liberties issues:
- The US no longer needs to provide a “prima facie” case to British courts in order to justify an extradition. Instead, the US only needs to establish that there is “reasonable suspicion” of guilt, essentially the amount of evidence police need to justify an arrest. According to Liberty, the evidential standard required for extraditions from the UK to the US, is much lower than in the inverse situation. As a result, “it is unsurprising that there is a significant disparity in the numbers sent to and from the UK”.
- There is no forum requirement in the treaty, meaning that there is no obligation for the UK courts to consider whether it would be better for the trial to go forward in Britain. Judges cannot bar an extradition on the basis that the alleged conduct took place in whole or in part on British soil. This can profoundly affect the suspect’s ability to mount a proper defence, especially if there are UK-based witnesses who are unable or unwilling to travel in order to testify.
Mr. Tappin’s claim – that terrorists have more rights than he does – is wrong on several fronts.
Firstly, as already discussed, the legislation that facilitated Tappin’s extradition was written for “terrorists”. It also impacted Tappin’s case in the same way it impacted accused terrorists.
While at Heathrow airport, Tappin stated:
"I won't be given leave to get any of my witnesses who are based in the UK because they are not allowed to testify in America by virtue of the fact they do not allow video interrogation. They have to appear personally... If I wanted anything, it was to be tried in the UK, not in America, because the Americans have never had to produce one piece of evidence... All the evidence shown to the court so far has come from our side.”
Compare these words to those of Ashfaq Ahmad, the father of Babar Ahmad:
“That British Citizens accused of committing crimes in the UK can be extradited to the US in cases where the CPS has found no evidence to charge them in this country, completely undermines our criminal justice system.”
Ahmed has been held in British prisons since 2003, fighting his extradition to the United States. During this time, he has never been charged by the British government with any crimes.
The US-UK treaty has a very low evidentiary requirement for extradition, and doesn’t take into account the appropriate forum for trial. That’s affected Tappin, and it’s affected plenty of terrorism suspects.
Secondly, both Tappin and War on Terror suspects, face violations of their due process rights once they get onto US soil.
Isabella Sankey, the director of policy for the civil rights group Liberty, commented: "Even if a US jury eventually finds [Tappin] not guilty, he'll still spend years in a Texan jail awaiting trial, thousands of miles from his home and sick wife."
And that’s only if he gets to trial! Speaking on Tappin’s case, Lord Carlile of Berriew pointed out:
"I think that the American plea bargaining system is something we would not tolerate in this country. It creates a very unlevel playing field… My wish is that a parliamentary select committee, perhaps the home affairs select committee, should carry out a very early enquiry into his case and whether it is acceptable for people to be sent back to the US to face their intimidating plea bargaining system which effectively forces people to choose between, say, 35 years imprisonment and a short sentence which is not a fair choice… Who can resist that sort of pressure? It is irrelevant whether the evidence he gives here is true or false, whether the plea he gives is true or false. It is the process.”
Let’s recall the case of Fahad Hashmi, a U.S. citizen initially arrested at Heathrow airport in 2006 on an American indictment. Hashmi was held in Belmarsh Prison for 11 months before his extradition back to the States. Despite the fact that Hashmi made no effort to contact any suspected terrorists while at Belmarsh, he was subject to severe isolation under Special Administrative Measures (SAMs) once transferred to U.S. soil. These measures included 23 hour lockdown and 24 hour electronic monitoring, so he was forced to shower and relieve himself in front of a camera. He had no access to fresh air - only one hour of daily recreation inside a cage. Hashmi was permitted one visit from an immediate family member every other week for 1.5 hours, but no physical contact was allowed. He could not communicate with any other prisoners, or even participate in group prayer.
After three years of isolation, Hashmi pleaded guilty day on 27 April 2010 – the day before his trial was to begin. He could have faced a maximum of 70 years of continued isolation if he had been found guilty. Although imagining a lifetime of isolation certainly influenced Hashmi’s decision to plead guilty, he also greatly feared the outcome of his trial. Just before the trial was scheduled to begin, the judge approved requests from the prosecution both for an anonymous jury and the inclusion of secret evidence. Given these circumstances it was doubtful the outcome of his trial would be favourable. In June 2010, Hashmi was sentenced to 15 years.
Hashmi’s case provides just one example of how due process violations prior to trial, also affect purported “terrorists”. Yes, Tappin is potentially facing years of pre-trial detention – maybe even in solitary confinement – and a manipulative and intimidating plea bargain system. That’s old news for the rest of us!
Thirdly, the issue of entrapment.
Mr. Tappin maintains he was "the victim of unlawful conduct by US agents". Indeed, a spokesmen for his lawyer previously commented, “This is a case in which the Customs agents caused the offence to be committed rather than merely providing an opportunity for the defendant to commit it. Ultimately the US agents resorted to proactive deceit and told lies in order to attempt to ensnare and entrap a respected British businessman."
It’s difficult to overemphasize the impact that entrapment has had on the rights of accused “terrorists” in America. Today there are over 15,000 informants working with the FBI, the vast majority of which are placed in mosques or Muslim communities. Several entrapment cases have received extensive media coverage, including the Newburgh Four and the Fort Dix Five. To learn more about entrapment and the use of informants in the American Muslim community, read this article (published by Mother Jones in the fall of 2011), or this report (by the Center for Human Rights and Global Justice at NYU School of Law).
After commenting on the manipulative nature of the plea bargain system in the United States, Lord Carlile added: "Mr Tappin made a good point comparing himself with Abu Qatada That was probably the best point he has made throughout this whole saga...The American system will be watched very closely by commentators in this country. I am sure that President Obama, who is a very distinguished lawyer, does not wish to see the American system held up to ridicule in the UK."
Hmm…Maybe Carlile is right. If Tappin’s extradition convinces Obama to take a deeper look at the rights of terrorism suspects in the United States, I’ll be thrilled.
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