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The American Government’s Use of Extradition and the War on Terror360°ANALYSIS

While the US has waived the death penalty in order to secure the extradition of Abu Hamza al–Masri et al., the accused – and those resisting extradition to the US – still face harsh prison conditions and a likelihood of unfair trials.

The British government’s recent extraditions of Mustafa Kamel Mustafa (aka Abu Hamza al-Masri), Khalid al-Fawwaz, Adel Abdel Bary, Babar Ahmad and Syed Talha Ahsan, along with the American government’s failed extradition attempt of Gary McKinnon and the speculated extradition of Wikileaks principal Julian Assange, all raise troubling implications for international relations, international law, and geopolitics for the United States and its European allies in their prosecution of the ongoing war on terror. These cases, and other national security and terrorism matters being prosecuted in the US, reveal an apparently coordinated effort by the American government to build support for American and allied military, intelligence, and foreign policy actions fundamentally aggressive in nature.

Mustafa, al-Fawwaz, Bary, Ahmad, and Ahsan were extradited to the United States and first appeared in American courts on October 6, 2012 after lengthy extradition battles involving both the United Kingdom’s court system and the European Court of Human Rights. These extradition battles involved direct challenges to the American prison system and its allegedly harsh conditions, as well as the fact that they each face lengthy (life) sentences, should they be convicted. Specifically, Mustafa, al-Fawwaz, Bary, Ahmad, and Ahsan alleged that if they were convicted in the United States, they would be subject to detention at the American prison in Florence, Colorado, the so-called “Super Max” facility, and would be subjected to the American government’s special administrative measures (“SAMS”). SAMS are a series of rules imposed by the American Department of Justice that severely restrict the detainees’ ability to communicate with the outside world, including their own attorneys. They also complained that they might face sentences of life imprisonment without the possibility of parole or that their sentences would otherwise be extremely long in violation of their human rights

Mustafa is facing the possibility of a life sentence as a result of allegations that he coordinated the kidnapping and killing of hostages in Yemen. Two of the kidnapping victims were American nationals. He also faces the possibility of a 15-year sentence for allegedly supplying financing for an Afghanistan-based Taliban-controlled computer lab and his alleged involvement in plans to wage jihad in Afghanistan and a 10-year sentence for his alleged efforts to establish a terrorist training camp in the United States. Al-Fawwaz and Bary face the possibility of life sentences stemming from their alleged involvement in the bombings of American embassies in Kenya and Tanzania, the same series of events that led to my former client Ahmed Khalfan Ghailani’s conviction and life imprisonment in the United States. Al-Fawwaz, if convicted of certain counts, would face a mandatory minimum sentence of life imprisonment. Finally, Ahmad and Ahsan face possible life sentences for their alleged involvement in conspiring to commit murder and kidnapping in Afghanistan and Chechnya, as well as determinate sentences of either 20 or 15 years for lesser charges. The American government waived the applicability of the death penalty as to any of these five defendants who may have otherwise faced that penalty if convicted in order to secure their extradition from the UK.

These cases, along with the failed extradition of McKinnon, raise interesting selective-prosecution issues and call into question the motive, intent, and objectives of the American government and its European allies. McKinnon, a 46-year-old Scot, was diagnosed with Asperger’s syndrome, a form of autism, during his extradition ordeal. Sufferers of Asperger’s frequently find it difficult to relate to others and are unable to fully understand the interpersonal ramifications of their actions. Apparently, McKinnon made claims that, as a result of his Asperger’s condition and related depression, he is in grave danger of ending his life, should he be extradited to face what he and his supporters believe to be the harsh conditions in the American penal system. British Home Secretary Theresa May, in explaining her extradition decision, found it to be “incompatible with Mr. McKinnon’s human rights” to permit his extradition because of the risk of McKinnon ending his own life. Ahsan, on the other hand, who has also received an Asperger’s diagnosis, was nonetheless extradited to the United States. In short, the selection of those subject to extradition calls into question demographic and geopolitical issues seemingly coordinated in support of American military aggression in the Middle East and Southwest Asia. Much like the war crimes trials depicted in George Orwell’s 1984, America’s national security and terrorism prosecutions are serving a central role in justifying America’s and its allies’ aggressive military campaign in Arab and Muslim lands.

While these suspects have received recent news coverage in the United States and even broader coverage overseas, it is Assange’s case that has garnered the most wide-spread international media attention. Assange is resisting his extradition to Sweden – to face questioning on sexual assault allegation – on the grounds that he claims that it is mere pretext for his eventual transfer to the United States to face a death penalty prosecution for espionage-related allegations. While American law provides for the death penalty under situations arguably akin to Assange’s (see section 794 of Title 18 of the United States Code), it is highly unlikely that, should he be extradited to America, he would face such a sanction. First, America faces an unfavorable international political climate for such a prosecution in light of the world community’s aversion to the death penalty. After all, Assange’s aims were arguably well-intended and his conduct ultimately led to little more than embarrassment to those arguably worthy of embarrassment.

Secondly, there is apparently no allegation that a death resulted from Assange’s alleged conduct. Under this circumstance, it is far from clear that such a prosecution would pass constitutional muster in the American court system. While American criminal law provides for the death penalty in situations where death does not result from the defendant’s actions, the American Supreme Court’s death penalty jurisprudence leaves open to question of whether death can be imposed unless death results. Finally, the applicable death penalty law, with only limited exceptions, requires America to be at war before the death penalty applies. While the American government, for political purposes, likes to cast itself as being at war, that claim is not to be taken seriously with respect to the legal requirements necessary to trigger application of the relevant death penalty provisions.

Regardless of whether Assange’s death penalty concerns are sincere or merely opportunistic, he, and all defendants facing American criminal prosecution for national security- or terrorism-related matters, has reason for concern about the state of the American justice system with respect to national security- and terrorism-related litigation. First, the American government is arguably using these litigations in a coordinated campaign to lend a sense of justification to its war on terror. By carefully selecting the defendants, issues, and demographics of those used to enable these matters, the American government is using terrorism and national security defendants from specific nation-states to justify military operations in and around those countries. The 2008 arrest and 2010 New York prosecution of Aafia Siddiqui, a Pakistani-American scientist, for her attempt to kill American agents allegedly attempting to question her in Afghanistan at a time when the United States was escalating its Predator drone attacks and clandestine special forces operations in Pakistan is but one of many examples of this trend.

Another case-in-point is the New York prosecution of Najibullah Zazi, an Afghan-American, prosecuted for a terror plot directed at New York City when American Army General (and recently retired CIA director) David Petraeus, then the commander of allied forces in Afghanistan, was attempting to build support for his counterinsurgency strategy in Afghanistan to American political leaders and their constituents. Similarly, the New York prosecution of Faisal Shahzad, a naturalized American citizen of Pakistani-descent, for his failed bombing attempt in Times Square in Manhattan during a period of on-going controversy regarding American Predator Drone attacks in Pakistan lent yet more support for the American war effort. A more recent example is the prosecution of Iranian Manssor Arbabsiar for hatching a plot to assassinate the Saudi ambassador to the United States and to attack the Saudi and Israeli embassies in Washington, during a period of aggressive Western and Israeli saber-rattling directed at intimidating Iran into curtailing its nuclear program and building support for an eventual American and Israeli invasion of Iran.

Not only has the American government carefully controlled the initiation and prosecution of national security- and terrorism-related criminal cases, it has been heavily involved in selecting the defense attorneys to represent the defendants in these matters. I was an eyewitness to aggressive American government involvement in selecting defense attorneys for detainees at Guantánamo Bay and for Ahmed Khalfan Ghailani’s matter in New York, including severing the ties between the detainees and their retained civilian counsel. In my own case, the American Department of Defense suspended my right to practice before the military commissions at Guantánamo Bay to silence my efforts on behalf of my Guantánamo Bay-based clients, including Ghailani, Ammar al-Baluchi, Mustafa bin Ahmed al-Hawsawi, and Rahim al-Nashiri. Furthermore, the American government has enacted a statute that has arguably made it a crime, punishable by up to 15 years of imprisonment, for an attorney to represent a member of a terrorist organization without prior American government approval. The American government utilizes two separate tactics to control the selection and behavior of attorneys handling these matters. First, attorneys seeking to avoid criminal prosecution for providing legal services to terrorist organizations can apply through the American Department of the Treasury for a license to do so. If approved, the attorneys can represent the terrorist organizations or their agents. However, the licensing scheme affords the American government near-complete discretion in the selection of the attorneys granted such licenses and the unfettered ability to revoke licenses of these attorneys.

The second government tactic for controlling the defenses in these cases is the so-called Criminal Justice Act Panel (the “Panel”), which exists in each judicial district in the American court system. The Panel is the group of attorneys within each judicial district who are authorized to accept court appointments for criminal matters involving indigent defendants in the American court system. The reality of the Panels is that they are largely staffed with co-opted attorneys who circumscribe the extent and nature of their advocacy in order to protect their place on the Panel and the income stream that comes with it. In New York, where the majority of terror- and national security-related cases are prosecuted, only certain Panel attorneys are deemed eligible for appointment to national security matters. These attorneys are hand-picked, purportedly for their superior qualifications. This second-level selection process affords the American government the opportunity for further attorney vetting.

In conclusion, the American criminal justice system has arguably been politicized in national security and terrorism matters at the expense of due process, fundamental fairness, and basic human decency. Foreign governments should, whenever possible, resist extraditions to the United States for those facing national security- or terrorism-related litigation. Those facing prosecution in the American court system in these matters should avoid, wherever possible, extradition to America and particularly refuse counsel assigned, and selected, by the American government. Finally, those non-governmental bodies interested in these matters should account for the American government’s alarming conduct in these cases in their training and operations. While it may be too late for Mustafa, al-Fawwaz, Bary, Ahmad, and Ahsan, as they have already been extradited and assigned Panel attorneys, Assange and those similarly situated can and should both resist extradition to the United States and the involvement of American attorneys whose client is, at the end of the day, the American justice system, not the defendants they purport to represent.

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