When I met Khalid Al-Fawwaz at HMP Wood Hill in November 2001, I was struck by his courtesy, gentleness and quiet consideration. He had been imprisoned awaiting extradition to the US for three years, since September 1998, and had been in solitary confinement since September 11, just over two months ago. At that stage he was finding it a pleasant rest from the work he did in prison – mentoring, acting as a listener for suicidal prisoners, helping with translations, forms and negotiating prison life, sitting on prisoner-staff committees.
That was eleven years ago. Khalid Al-Fawwaz is still in prison awaiting extradition – he has spent fourteen years in prison, the sort of sentence someone might serve for murder. He is there on the anonymous evidence of a ‘supergrass’ who links him with the US embassy bombings of 1998, although he had lived in London for four years by then. In our conversation he said he and bin Laden had worked together to overthrow the repressive Saudi regime, but that they split in 1996 when bin Laden chose terrorism over organising for popular revolt. Khalid Al-Fawwaz would have supported the Arab Spring, not Al Qaeda or bombings.
It’s not for me to judge his guilt or innocence. But I learned something about the universality of human rights when, from 1998 to 2000, I was a junior counsel on Amnesty International’s team of lawyers arguing for the extradition of General Augusto Pinochet to Spain on charges of murder and torture. Pinochet had been personally responsible for the savage torture and murder of thousands of people in his bid to rid Chile of socialism and to pocket large quantities of its assets. Although the House of Lords twice ruled that he could be extradited, the home secretary of the day, Jack Straw, decided not to proceed, since Pinochet was, he decided, in poor health and should not have to stand trial (the Spanish authorities had already said they would not imprison him because of his age). He was afforded the human rights which he had denied his victims – and as a human rights lawyer I had to abide the conclusion. If human rights are not truly universal, to be enjoyed by everyone by virtue solely of their being human, not to be conditional on good behaviour, then even monsters like Pinochet could not be excluded.
Human rights are for everybody, regardless of who they are or what they have done. And the imminent extradition of Khalid Al-Fawwaz and his co-extraditees to ‘special administrative measures’ and ‘supermax’ imprisonment in the US is a travesty of human rights, despite what the European Court of Human Rights says.
Sometimes the Court gets it wrong – particularly on cases involving national security, with the US and UK governments breathing down its neck. Its ruling in April that the extradition of Babar Ahmad, Talha Ahsan, Khalid Al-Fawwaz, Abdel Bary and the others will not violate their rights to be free from torture or inhuman or degrading treatment, and its refusal of an appeal to the Grand Chamber earlier this month, demonstrate a fatal lack of courage and a dilution of basic human rights.
Worse than a death sentence
The US government has issued a diplomatic assurance that it will not seek or impose the death penalty on any of the men. They could not be extradited if there was a real risk of a death penalty. But the fate that awaits them in the supermax prisons of the US is perhaps worse than death.
My meeting with Mr Al-Fawwaz was in the context of preparing representations for submission to the Home Secretary about the inhuman and degrading conditions in supermax prisons in the US. In the course of my research, I found out that:
· Prisoners in supermax prisons spent years, sometimes decades in solitary confinement. The concrete single cells had remote-control solid-steel doors designed to cut off sound and visual contact with others. Inmates described life in a supermax as like living in a tomb. It is acknowledged that the sensory and social isolation of solitary confinement drives men mad.
· Prisoners were exposed to constant video and human surveillance, often by guards of the opposite sex, including when they undressed or used the toilet. Humiliating strip searches were routine.
· Supermax prisons were marked by a frequently excessive use of force by staff amounting to brutality, a high level of violence by inmates on each other, often unchecked by staff, and discriminatory and racist practices.
· Electric shock devices such as stun guns and cattle prods, restraint chairs and ‘five-point restraint’ leaving prisoners strapped to a steel bed and lying in their own waste for up to 48 hours, chemical sprays, leg irons and waist chains were routinely used.
So dreadful were the conditions in the supermax prisons, of which ADX Florence (where Mr Al-Fawwaz and the others are likely to end up) is said to be the worst, that a juror deciding on penalty in relation to four men convicted of involvement in the US embassy bombings reportedly voted against the death penalty because it was not as harsh as life in prison.
When I saw the images of the cages at Guantánamo, and later, the images from Abu Ghraib, I was not surprised; inhuman and degrading treatment was, from what I had seen, endemic to the US carceral system. I was not alone in my reaction. In 2004, Human Rights Watch US program director Jamie Fellner observed: ‘The sadistic abuse and sexual humiliation by American soldiers at Abu Ghraib prison has shocked most Americans - but not those of us familiar with US jails and prisons. In American prisons today, wanton staff brutality and degrading treatment of inmates occur across the country with distressing frequency.’
The European Court of Human Rights was concerned only with the aspects of social and sensory isolation in supermax prisons, and with the likelihood of life in prison with no hope of release, which ‘is in many respects in like case to a sentence of death’, according to one of Britain’s senior judges, Lord Justice Laws. One of the former wardens of ADX had publicly described the prison as ‘a clean version of hell’. Psychiatrist Dr Terry Kupers, whose conclusions were supported by several prison psychologists, spoke of the ‘almost total lack of meaningful human communication’ in supermax prison regimes. Prisoners are fed through a slot in the door, they eat alone and rarely have contact with another living thing, except the gloved hands of the officers; they communicate with each other by yelling, which is frequently banned, but are kept awake at night by the screams of severely mentally ill prisoners). They don’t see the sun, never touch soil, see plant life or view the surrounding mountains. Outdoor recreation is in a cage in a concrete pit, and even this ‘privilege’ is removed from those who commit infractions such as leaving crumbs for birds. The conditions ‘tended to induce a range of psychological symptoms ranging from panic to psychosis and emotional breakdown’. There is overwhelming evidence that solitary confinement causes severe psychological and sometimes physiological damage, very quickly. UN and European bodies for prevention of torture condemn the use of solitary confinement as inhuman and degrading treatment when it leads to such effects.
Certain Arab-Muslim inmates had spent between five and thirteen years in solitary confinement both before and after trial. Human Rights Watch described the supermax regime as ‘long-term and indefinite incarceration in conditions of extreme social isolation and sensory deprivation’.
The Eighth Amendment to the US Constitution prohibits ‘cruel and unusual punishments’. But the US courts have held that this applies only to measures which inflict pain as a punishment, deliberately or in wilful indifference. Solitary confinement which is imposed for security reasons is not seen as ‘punishment’ so does not violate the Eighth Amendment, however destructive it is of human dignity and personality.
Broader protection against inhuman or degrading treatment is contained in the International Covenant on Civil and Political Rights (ICCPR), and in the American Convention on Human Rights – but the US has not ratified the American Convention, and has issued so many reservations to the ICCPR that, according to the UN Human Rights Committee, ‘all the essential elements of the Covenant guarantees have been removed’. But the US government does not recognise the competence of that committee anyway.
The European Court rejected the claim that sending the men to these conditions violates the prohibition against exposure to inhuman and degrading treatment set out in Article 3 of the European Convention on Human Rights. The judges failed to record the US’ failure to ratify the American human rights convention, or its eviscerating reservations to the ICCPR. They cited the theoretical possibility of relaxation of the harsh conditions, and of eventual release. They referred to the possibility of redress before the American courts, and to the US’s ‘long history of respect of democracy, human rights and the rule of law’. Such statements make the judges sound like Rip van Winkle – where have they been for the past decade?
In refusing to allow the men to appeal to the Grand Chamber, the court has ignored twenty-six human rights groups and more than 150 scholars, whose petition argued that the decision would have ‘serious implications…for legitimizing the use of conditions of confinement that violate human rights’.
Extradition or expulsion without too much concern for the consequences has replaced extraordinary rendition as a means of removing those suspected of involvement in or support for terrorism. In the process, the British government, in common with other European governments, is constantly seeking to exert downward pressure on the human rights standards designed to protect such ‘undeserving’ people. It is absolutely vital that supranational bodies such as the European Court of Human Rights hold the line against this pressure. That is what they are for. The Court’s failure to hold that line, to uphold those standards, to protect these men from the living hell that is US supermax prisons, is grave indeed.
This article was written by Frances Webber exclusively for CagePrisoners
Frances Webber is a former barrister who specialised in immigration, refugee and human rights law until her retirement in 2008. She co-edited Macdonald’s Immigration Law and Practice (5th edition, 2001, 6th edition 2005) and Halsbury’s British Nationality, Immigration and Asylum (4th edition, 2002 reissue). She lectures part-time at Warwick University and Birkbeck College and speaks and writes on migration and human rights issues. She is currently working on a book, Borderline justice: the fight for refugee and migrant rights (Pluto, October 2012).
 CNN 18 October 2001, cited in Amnesty International: The death penalty as a barrier to extradition, November 2001.
 R (Wellington) v Secretary of State for the Home Department  EWHC 1109.
 U.N. Doc. CCPR/C/21/Rev.1/Add.6 (1994).