“material support of terrorism, prohibited support of the Taliban, conspiracy to kill persons in a foreign country, money laundering, solicitation and conspiracy”
“A person’s extradition to a category 2 territory is barred by reason of extraneous considerations if (and only if) it appears that – … (b) if extradited he might be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality, gender, sexual orientation or political opinions.” … (b) if extradited he might be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality, gender, sexual orientation or political opinions.”
“If the judge is required to proceed under this section and the category 2 territory to which extradition is requested is designated for the purposes of this section by order made by the Secretary of State – (a) the judge must not decide under subsection (1), and (b) he must proceed under section 87.”
“(1) If the judge is required to proceed under this section (by virtue of section 84…) he must decide whether the person’s extradition would be compatible with the Convention rights within the meaning of theHuman Rights Act 1998 . (2) If the judge decides the question in subsection (1) in the negative he must order the person’s discharge. (3) If the judge decides that question in the affirmative he must send the case to the Secretary of State for his decision whether the person is to be extradited.”
“(1) If the judge sends a case to the Secretary of State under this Part for his decision whether a person is to be extradited, the person may appeal to the High Court against the relevant decision. … (3) The relevant decision is the decision that resulted in the case being sent to the Secretary of State. (4) An appeal under this section may be brought on a question of law or fact. (5) If an appeal is brought under this section before the Secretary of State has decided whether the person is to be extradited the appeal must not be heard until after the Secretary of State has made his decision. …” 11. S.104: “(1) On an appeal under section 103 the High Court may – (a) allow the appeal; (b) direct the judge to decide again a question (or questions) which he decided at the extradition hearing; (c) dismiss the appeal. (2) The court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied. (3) The conditions are that – (a) the judge ought to have decided a question before him at the extradition hearing differently; (b) if he had decided the question in the way he ought to have done, he would have been required to order the person’s discharge. (a) allow the appeal; (b) direct the judge to decide again a question (or questions) which he decided at the extradition hearing; (c) dismiss the appeal. (a) the judge ought to have decided a question before him at the extradition hearing differently; (b) if he had decided the question in the way he ought to have done, he would have been required to order the person’s discharge. (4) The conditions are that – (a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing; (b) the issue or evidence would have resulted in the judge deciding a question before him at the extradition hearing differently; (c) if he had decided the question in that way, he would have been required to order the person's discharge. (5) If the court allows the appeal it must – (a) order the person’s discharge; (b) quash the order for his extradition. ...”
“If the offense for which extradition is requested is punishable by death under the relevant law of the requesting Party, but the relevant law of the requested Party does not provide for the death penalty in a similar case, extradition may be refused unless the requesting Party gives assurances satisfactory to the requested Party that the death penalty will not be carried out.”
“any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity”
“Torture constitutes an aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment.”
“No State Party shall expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.”
“Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.”
“I am satisfied that the defendant meets the criteria which would permit the President of the United States of America to personally make an order designating the defendant as an enemy combatant who could then be detained and tried by a Military Tribunal. If such an order were made there is a substantial risk that the defendant would be detained at Guantanamo Bay or subjected to rendition to another country. He would be subject to military detention, detained incommunicado, and would not have the opportunity to seek representation of his choice. He could be detained indefinitely or he could be placed before a Military Tribunal which, depending upon the nature of the charge preferred, could render him liable to the death penalty. There is no doubt in my mind that if he were to be subject to Military Order No 1 he would be deprived of his Convention rights within the meaning of theHuman Rights Act 1998 , he would probably be subject to detention in circumstances which would be inhuman and degrading, and there would be a denial of justice contrary toArticle 6 of the European Convention . If Military Order No 1 could be applied, extradition would be barred underSection 87 of the Extradition Act 2003 .”
“The Embassy of the United States of America at London, England, presents its compliments to Her Majesty’s Principal Secretary of State for Foreign and Commonwealth Affairs and has the honor to refer to Note No. 100 dated November 15, 2004, requesting the extradition of Babar Ahmad to the United States of America... Pursuant to Article IV of the Extradition Treaty Between the Government of the United States and the Government of the United Kingdom of Great Britain and Northern Ireland, the Government of the United States hereby assures the Government of the United Kingdom that the United States will neither seek the death penalty against, nor will the death penalty be carried out, against Babar Ahmad upon his extradition to the United States. The Government of the United States further assures the Government of the United Kingdom that upon extradition to the United States, Babar Ahmad will be prosecuted before a Federal Court in accordance with the full panoply of rights and protections that would otherwise be provided to a defendant facing similar charges. Pursuant to his extradition, Babar Ahmad will not be prosecuted before a military commission, as specified in the President’s Military Order of November 13, 2001; nor will he be criminally prosecuted in any tribunal or court other than a United States Federal Court; nor will he be treated or designated as an enemy combatant...”
“I have had to consider the status of that Diplomatic Note. I am satisfied whilst it does not provide any personal protection to this defendant; the Diplomatic Note does bind the American Government, which includes the President of the United States. As such I am satisfied that the risk of an order being made under Military Order No. 1 is almost entirely removed. Although I have received evidence of extraordinary rendition to another State, the Government denies that such action takes place. If such steps do take place I am satisfied that in this case, in the light of the Undertaking not to invoke Military Order No. 1, the risk of extraordinary rendition is negligible.”
“The principles of the common law, standing alone, in my opinion compel the exclusion of third party torture evidence as unreliable, unfair, offensive to ordinary standards of humanity and decency and incompatible with the principles which should animate a tribunal seeking to administer justice. But the principles of the common law do not stand alone. Effect must be given to the European Convention, which itself takes account of the all but universal consensus embodied in the Torture Convention.”
“The appellants broaden their argument to contend that all the principles on which they rely apply to inhuman and degrading treatment, if inflicted by an official with the requisite intention and effect, as to torture within the Torture Convention definition. It is, of course, true thatarticle 3 of the European Convention (and the comparable articles of other human rights instruments) lump torture and inhuman or degrading treatment together, drawing no distinction between them. The European Court did, however, draw a distinction between them in Ireland v United Kingdom(1978) 2 EHRR 25 , holding that the conduct complained of was inhuman or degrading but fell short of torture, and article 16 of the Torture Convention draws this distinction very expressly: ‘Article 16 1. Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. In particular, the obligations contained in articles 10, 11, 12 and 13 shall apply with the substitution for references to torture or references to other forms of cruel, inhuman or degrading treatment or punishment. 2. The provisions of this Convention are without prejudice to the provisions of any other international instrument or national law which prohibit cruel, inhuman or degrading treatment or punishment or which relate to extradition or expulsion.’ Ill-treatment falling short of torture may invite exclusion of evidence as adversely affecting the fairness of a proceeding under section 78 of the 1984 Act, where that section applies. But I do not think the authorities on the Torture Convention justify the assimilation of these two kinds of abusive conduct. Special rules have always been thought to apply to torture, and for the present at least must continue to do so. It would, on the other hand, be wrong to regard as immutable the standard of what amounts to torture...”
“(1) A person is guilty of an offence if he - (a) solicits or invites any other person to give, lend or otherwise make available, whether for consideration or not, any money or other property, intending that it shall be applied or used for the commission of, or in furtherance of or in connection with, acts of terrorism to which this section applies or having reasonable cause to suspect that it may be so used or applied. (2) A person is guilty of an offence if he - (a) gives, lends, or otherwise makes available to any other person, whether for consideration or not, any money or other property; or (b) enters into or is otherwise concerned in an arrangement whereby money or other property is or is to be made available to another person, knowing or having reasonable cause to suspect that it will or may be applied or used as mentioned in subsection (1) above. (3) The acts of terrorism to which this section applies are - (a) acts of terrorism connected with the affairs of Northern Ireland; and (b) subject to subsection (4) below, acts of terrorism of any other description except acts connected solely with the affairs of the United Kingdom or any part of the United Kingdom other than Northern Ireland. (4) Subsection (3)(b) above does not apply to an act done or to be done outside the United Kingdom unless it constitutes or would constitute an offence triable in the United Kingdom.”
“[I]n general it appears to me to be very undesirable that a foreign government should be encouraged to offer not to apply the ordinary law of its country to one of its own subjects if he is returned to that country. There may not be the same objection to the foreign government stating that it does not intend to take certain executive action with regard to the accused person and it might be proper to accept an undertaking on the lines of section 3(2) of the Extradition Act, 1870. But any undertaking or statement of intention is liable to create misunderstanding and perhaps acute difficulties in the event of a change of circumstances.”
“[T]he Note only provides that ‘pursuant to extradition’ the Appellant would be [not] treated as an enemy combatant. No doubt this wording was carefully chosen. It would be open to the US prosecuting authorities to discontinue the criminal proceedings against the Appellant and then to designate him as an enemy combatant. In these circumstances it would be open to the US to claim that the detention was not ‘pursuant to extradition’ because that process had come to an end with the discontinuance of the criminal proceedings alleged in the request.”
“It is important to recognise that the Appellant’s primary case does not require the Court to determine that the US Government would or might act in bad faith by knowingly disregarding an undertaking binding as a matter of international law. His case is that the US may decide to designate him as an enemy combatant, and try him in a military commission, whilst maintaining the position that such treatment falls outside the terms of Diplomatic Note 114, which is not legally binding in any event.”
“39. In other words, he signed a bill that was perfectly clear on its face, but then announced that his independent Executive power meant that he would not feel bound to apply the bill according to its clear language – even though it explicitly outlawed torture or cruel and degrading punishment of anyone worldwide, the President’s independent power gave him the right to ignore it. 40. This statement was considered a betrayal of the core principles of the McCain Amendment by the very people who had so painstakingly worked for its passage.”
“42. … It is very difficult to believe that the President would sign a bill that clearly expressed the will of both Houses of Congress and then immediately announce his plan to ignore it, yet he would not feel similar liberty to ignore a statement made to the British authorities if he felt that it was necessary to U.S. security to do so.”
“President Bush has quietly claimed the authority to disobey more than 750 laws enacted since he took office, asserting that he has the power to set aside any statute passed by Congress when it conflicts with his interpretation of the Constitution.”
“Bush is the first president in modern history who has never vetoed a bill, giving Congress no chance to override his judgments. Instead, he has signed every bill that reached his desk, often inviting the legislation's sponsors to signing ceremonies at which he lavishes praise upon their work. Then, after the media and the lawmakers have left the White House, Bush quietly files ‘signing statements’ - official documents in which a president lays out his legal interpretation of a bill for the federal bureaucracy to follow when implementing the new law. The statements are recorded in the federal register. In his signing statements, Bush has repeatedly asserted that the Constitution gives him the right to ignore numerous sections of the bills - sometimes including provisions that were the subject of negotiations with Congress in order to get lawmakers to pass the bill. He has appended such statements to more than one of every 10 bills he has signed.”
“[T]here is (still) a fundamental assumption that the requesting state is acting in good faith.”
“First, if there had been a routine disregard of the specialty rule, I would have expected that over the decades of extradition to the US from the UK, and in particular from those countries with which the US enjoys a land frontier, the UK Courts and the Courts of other sending states would have refused extradition in decisions which would be available to us. The 1972 and 2003 Treaties would not have been agreed in the terms on which they were agreed.”
“In the present case I consider that the undertaking confirms the position which the United States courts would anyway adopt. They will be satisfied, not least by the terms of this court’s judgment, that the defendants’ extradition is ordered on the precise basis that the accusation they will face at trial will be limited to, and travel no wider than, the case which is essentially formulated in paragraphs 10 and 23 of the Texas indictment and reflected in the charge drafted for the proceedings at Bow Street. And the American courts will be loyal to this expectation: not merely because in general they respect the specialty rule, but because by their own express jurisprudence… it is “essential to determine… whether the surrendering state would regard the prosecution as a breach”… This test is meticulously applied. It means, in short, that the American courts will give effect to the views of the Secretary of State and of this court (as to which there will be no room for doubt) of the requirements of s.95 of the 2003 Act.”
“... [D]ecisive consideration must be given to the fact that the United States precluded the possible application of the Presidential Military Order of13 November 2001 by their assurance of22 May 2003 . Thus, the United States have entered into the obligation, which is binding under international law, neither to bring the complainant before an extraordinary court after his extradition nor to apply the procedural law that is provided in the Order of13 November 2001 nor to take the complainant to an internment camp. There are no indications to suggest that the United States would, upon the complainant’s extradition, not comply with the assurance given.”
“84. The US Courts do not infer consent merely because there is silence. They do not turn a blind eye to what are obvious problems in the sending state’s known attitude, whether from past extradition requests or from the particular case or Treaty involved. Rather… they adopt a realistic assessment of the sending state’s attitude, in recognition of the specialty doctrine as a principle of international comity and out of respect for a foreign state’s sovereignty. But the Courts do not treat it as a technical hurdle devised for the benefit of properly convicted criminals, enabling them to take points which truly belong to the sending state and which the Courts properly infer that the sending state does not take. 85. There is nothing in the cases which would justify the conclusion that the US Government or Courts would not respect the express limits in the UK-US Treaty or in the 2003 Act or in any judgment of this Court…”
“I conclude that the treatment of Mr. Arar in Far Falestin constituted torture as understood in international law. The interrogation techniques used on Mr. Arar, especially in the first three days but also sporadically in the first two weeks of his detention amounted to torture. The use of the black cable in particular, and the generalized beatings he endured, could only have been "intentional". They were meant to inflict severe pain and suffering. The pain was clearly physical. But in addition, the techniques of humiliation and the creation of intense fear were forms of psychological torture. This is particularly true of the strategy of blindfolding Mr. Arar and making him wait for the next interrogation session in a corridor or room where he could hear the screams of other victims. The threats to use other forms of physical torture, such as the tire and the chair, also amounted to psychological torture. This was particularly the case for a man like Mr. Arar who so clearly feared physical violence. The infliction of pain and suffering was for a purpose considered relevant by international law: the extraction of a confession.”
“... I am advised by the Office of the Legal Adviser and the Office of International Affairs that the United States is committed to complying with its international law obligations under the [Torture Convention]. Consistent with that treaty, the United States does not expel, return, or extradite individuals to countries where the United States believes it is more likely than not that they will be tortured.”
“The Government have not attempted to deny that special administrative measures could be applied. They do however point out these measures are essentially administrative and that there is judicial control to see that communication passing between the defendant and his lawyers, although monitored, does not reach the eyes and ears of those prosecuting. To that extent a limited lawyer/client privilege is maintained. It is in relation to the application of special administrative measures that I find the greatest grounds for concern. However, examining the measures against the safeguards, I have concluded that a trial could still be properly and fairly conducted without breach of Article 6 of the Defendants’ Convention Rights. Although Mr Loflin tells me that these measures are in practice imposed upon Muslims charged with terrorist offences, I feel unable to deduce from this that the measures would be imposed for the purpose of prosecuting or punishing the defendant on account of his race or religion.”
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence.”
“[T]he regulations [sc. the United States Code of Federal Regulations] require the Government to employ specific safeguards to protect the attorney-client privilege and to ensure that the investigation is not compromised by exposure to privileged material relating to the investigation or to defense strategy. #501.3(d)(3) [of the Regulations]. These protective requirements are designed to safeguard a prisoner’s legitimate need to communicate with his or her attorney, while also helping to safeguard human lives.”