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The impossible injustice of Talha Ahsan’s extradition and detention

Talha Ahsan was extradited to the US in 2012 after spending six years in high security prisons in the UK. Like Gary McKinnon, he has Asperger Syndrome, and is now in a supermax prison in Connecticut. Ian Patel explains how this was able to happen.

A still from the Yale Law School film "The Worst of the Worst" about the prison where Ahsan is being held.

In theory, what has happened to Talha Ahsan should not be possible. It might come as a surprise to many to learn that Ahsan, a British national judged to be “extremely vulnerable” by a psychiatrist, is currently in pre-trial detention in a so-called “super-maximum security” prison in the United States.  Ahsan is being held at Connecticut supermax prison, which is the subject of a recent documentary by Yale Law School entitled The Worst of the Worst.

Why is this impossible? Despite being extradited to the US under the terms of a 2003 Treaty with the US (according to which no prima facie evidence is necessary), Ahsan is protected by national and international law – specifically the UK Human Rights Act and the European Convention on Human Rights, among other international protections against torture. Since supermax prisons would undoubtedly be judged illegal were they to be proposed in any European state signed to the European Convention, Ahsan should have been protected from what he now endures and is likely to endure for decades to come.

Before his extradition Ahsan made a joint petition to the European Court of Human Rights to have the extradition blocked, protesting the conditions he would face in America. The story of his petition and its rejection shows a disturbing violation of uninfringeable human rights protections.

Ahsan’s story is particularly troubling since he has Asperger Syndrome and the same associative risks as Gary McKinnon. Ahsan is 33 years old and grew up in Tooting, south London.  He attended The School of Oriental and African Studies (SOAS), University of London, taking his degree in Arabic.

When the US formally requested the extradition of Ahsan on 15 September 2006, the request alleged involvement in the commission of four felonies between 1997 and 2004; specifically, “conspiracy to provide material support to terrorists”, “providing material support to terrorists” and “conspiracy to kill, kidnap, maim, or injure persons”. This material support is alleged to have been provided by Ahsan’s supposed participation in an Islamic media website (that at the time of his arrest had been offline for four years) one of whose servers operated out of Connecticut. Ahsan spent over six years (without bail) in high security prisons in the UK before finally being extradited to the US – along with Abu Hamza, Babar Ahmad, Adel Abdul Bary and Khaled al-Fawwaz – on 5 October 2012.

Sections of the British press portrayed Ahsan as an “unwanted guest”, a natural partner to Abu Hamza. I met with Hamja Ahsan, Talha’s brother, to discuss Talha’s early life.

Ahsan’s Bengali parents settled in Tooting, London, in 1964. As a child Talha won a financially assisted place to Dulwich College in south London. His literary ambitions and facility were obvious from an early age and his intellectual influences developed to be eclectic, ranging from Linton Kwesi Johnson to Seamus Heaney. He has a reverence for the English literary canon, particularly admiring the poetry of Ted Hughes. Zadie Smith’s White Teeth is one of his favourite novels. At HMP Long Lartin he translated a tenth-century Arabic poem, Above the Dust, by Abu Firas Al-Hamadani, who was held captive in Byzantium. On the day of his arrest he had a job interview to be a librarian.

Ahsan is now gaining recognition as a poet, recently winning the Koestler Trust’s 2012 Platinum Award for his poem “Grieving”, which is taken from his second, forthcoming book of poems. Ahsan’s first book of poems, This Be the Answer, has brought him support and praise from writers A.L. Kennedy and Michael Rosen.

His poetry is luxuriously observant and its erudition guarded. Sometimes it is sad:

it is not that the
world isn’t full of
beautiful things,
only that some are rare …

***

Hamja (Talha's brother) and the remains of Talha's
prison possessions from HMP Long Lartin

Pressure is mounting against supermax prisons and other “correctional” institutions which place prisoners in solitary confinement. In supermax prisons, prisoners are in open-ended isolation for 24 hours a day and, in certain cells, denied natural light. Prisoners have monitored and extremely restricted contact with their families and no access to educational programs. Perhaps the most devastating aspect of supermax prisons is the fact that they are designed to prevent any meaningful contact or communication whatsoever with other people.

In his groundbreaking research on supermax prison conditions, Craig Haney writes that prisoners are subject to “a totality of isolation” and “complete idleness for extremely long periods of time”. Even interaction with prison officers is prevented by technological sophistications such as computerised locking and tracking of movement. Meetings with doctors and psychotherapists are conducted by video-conference in order that human interaction is kept at nil. On the basis of Haney’s research the United Nations has stated that “indefinite and prolonged solitary confinement, in excess of fifteen days, should also be subject to an absolute prohibition”.

Up to 25,000 people are held in supermax prisons across 40 US states. Supermax conditions were originally justified as a means of isolating “the worst of the worst” – that is, the most violently dangerous prisoners – from the rest of a prison population. Today however many prisoners without histories of physical violence are subject to leg-shackles during showering among other out-of-cell physical restraints.

 In 2012 opposition to supermax prisons and solitary confinement included a report by Amnesty International, three civil-rights lawsuits, a Congressional Hearing, a documentary by former hostage Shane Bauer, and a photography project on children in solitary confinement.

So far this year, the New York State Bar Association has passed a resolution calling for a radical curtailment of the use of solitary confinement, The Federal Bureau of Prisons has announced “a comprehensive and independent assessment” of solitary confinement practices, and a coalition of over 35 organisations has petitioned the United Nations to investigate the use of solitary confinement in New York State prisons. The states of Colorado, Illinois, Maine, California and Mississippi have recently taken steps to reduce the number of prisoners confined in solitary (as much to reduce expenditure as satisfy recent advocacy campaigns).

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A mere 11 days after Ahsan was flown to the US, Gary McKinnon’s extradition to the US (for “the biggest military computer hack of all time”) was blocked by Theresa May. McKinnon had claimed his diagnosis of Asperger Syndrome should be taken into consideration before a ruling on his extradition was given. The United Nations agrees with him, reporting that “prisoners with mental health issues deteriorate dramatically in isolation … Some engage in extreme acts of self-mutilation and even suicide”. Indeed over fifty percent of suicides in US prisons are committed in solitary confinement. Despite being independently assessed as a suicide risk and diagnosed with Asperger Syndrome in June 2009, Ahsan’s extradition was ordered to proceed regardless. (As a devout Muslim, the issue of vulnerability to any concept of suicide would never have been one that he himself could countenance being advanced on his behalf.)

In a Home Office letter to McKinnon’s legal team, May concludes that extradition “would give rise to such risks to [McKinnon’s] health, and would, in particular, give rise to such a high risk of him ending his life, that a decision to that effect would be incompatible with his human rights under Article 3 [protection against torture or inhuman or degrading treatment or punishment]”.

May’s careful duplicity and manipulation of human rights standards in her cross-dealings with Ahsan and McKinnon are astonishing. Compare her pious references to the 1998 Human Rights Act with her opening gambit to the Conservative Party Conference seven days before: "Wasn’t it great to say goodbye – at long last – to Abu Hamza and those four other terror suspects on Friday?”.

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Before his extradition, Ahsan had appealed to the High Court to have his extradition order overturned, arguing that his case ought to be heard in a UK court. When this appeal was rejected Ahsan made use of the final instance of legal protection and redress available to him, an individual petition to the European Court of Human Rights.

Under Article 25 of the European Convention on Human Rights “any person, non-governmental organisation or group” can petition the European Court of Human Rights alleging a violation of their rights. The Court then decides whether to pursue a particular case, which in the last instance is decided by the Grand Chamber of the Court. Such “right of individual petition” is a unique means by which an individual can bring their own legal system into regulation with the norms of international justice. Many have availed themselves of this right. In 2010 the Court received 61,300 applications, a figure that testifies to the stature the Court has attained.

States that are party to the European Convention on Human Rights are beholden to the Strasbourg Court’s decisions. Under Article 15 of the Convention, however, states can “derogate” or formally withdraw from a limited number of their obligations to the Convention in certain prescribed circumstances such as “in time of war or other public emergency threatening the life of the nation”. For example, in late 1970s the UK derogated from the Convention specifying a terrorist threat emanating from Northern Ireland, and would derogate again in the aftermath of the 9/11 attacks. In its counter-terrorism efforts, the UK derogated from Article 5, allowing the government to increase its powers of arrest, detention and internment.

However, a “derogation” does not abolish state responsibility to international law. Torture or inhuman or degrading treatment or punishment (Article 3) is prohibited “in absolute terms … even in the event of a public emergency threatening the life of the nation”. The argument against torture is so cogent as to be universally applicable to all states in all circumstances.

The Strasbourg Court has served the crucial function of protecting against excessively repressive national legislation. For example, after the murder of James Bulger, Home Secretary Michael Howard extended the minimum tariff on the imprisonment of children from eight to 15 years. Howard had made the decision on the basis of public fury and a petition signed by 278,300 people expressing the view that Bulger’s murderers, despite being children, should never be released. The Strasbourg Court overturned the increased tariff in 1999, ordering the UK to remain within international standards for juvenile justice.

The Court also has a laudable record in protecting the rights of criminal suspects and has not balked in blocking orders of extradition and deportation in UK cases in the past. In 1989 the Court protected Jens Söering from extradition to the US (where he would have faced the death penalty); in 1996, Karamjit Singh Chahal from deportation to India; and in 2012, Abu Qatada from deportation to Jordan. In December 2012 the Court ruled that the CIA’s “extraordinary rendition” of Khalid El-Masri amounted to torture. So why did the Court neglect Talha Ahsan?

Ahsan’s petition to the Court claimed violations of several Articles of the Convention, with the emphasis on an Article 3 violation. Some of Ahsan’s complaints were judged inadmissible, but the Court did consider whether Ahsan’s detention in a supermax solitary confinement facility (specifically the Administrative Maximum Facility in Florence, Colorado) would violate Article 3; whether his mental health would be so affected as to violate Article 3; and whether he was likely to face a sentence so detrimental to his person as to violate Article 3.

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The crucial aspects of Ahsan’s petition concerned the restrictive conditions in supermax prisons (ADX specifically), the damaging periods of detention spent without human contact, and the concerns surrounding his mental health.

Simply put, on these issues the Court had to decide whether supermax prison conditions stayed within the threshold set by Article 3 or whether they violated it. At the outset, one might have said that Ahsan’s chances were good: the Court’s case-law provides precedents in which solitary confinement of prisoners can be shown to violate Article 3; moreover, the Court has held on many occasions that the detention of a person who is ill may raise issues under Article 3 and that the lack of appropriate medical care may amount to treatment contrary to that provision. Of course, each case is unique and the decision is a process that “depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim”.

In its final judgement on Talha Ahsan’s petition the Court ruled “no violation of Article 3 as concerned the possible detention at ADX supermax prison”. Despite psychiatric assessments from both external and internal prison psychiatrists describing Ahsan as “extremely vulnerable” and his diagnosis of Asperger Syndrome, the Court ruled no violation with respect to mental health conditions, noting that “those [same] mental health conditions have not prevented [Ahsan] being detained in high-security prisons in the United Kingdom”. With respect to the severity of punishment Ahsan faced, the Court referred simply to “the serious nature of the allegations made against these applicants, and the full range of protections available in the United States (including the Eighth Amendment’s protection from grossly disproportionate sentences)”.

In its final reasoning in the Ahsan case the Court seems to have either relied on UK national policy for direction or to have simply dismissed out of hand claims of US carceral violations. The judgement does not satisfactorily engage the question of whether a vulnerable, non-violent prisoner needs ever to be held in solitary confinement, since solitary confinement can only be justified for security, disciplinary or protective reasons.

Crucially the Court accepted statistical evidence submitted by the US Bureau of Prisons on the kind of supermax prisoner program Ahsan would likely face. As Ahsan’s legal team would state after the Court’s decision, it was “in large part on the basis of disputed statistics” that the Court ruled that “isolation in a US Supermax prison is ‘relative’ and will become a violation of Article 3 ECHR which prohibits torture, only if it extends indefinitely”. A total of 26 US human rights organisations protested to the Court that it had “based its decision in part on information provided by the U.S. Federal Bureau of Prisons (BOP) that was insufficient and misleading”.

With unmerited optimism, the Court judgement suggests that supermax prisons provide “recreation, education, religious expression and engagement with the outside world” – but at the same time rather tellingly concedes that “communication with other inmates” is available “admittedly only through the ventilation system”. The Court judgement refers to the “psychiatric services” available in supermax prisons, yet this turns out to equal only two doctors for 3,200 inmates.

The comparisons the judgement makes between high-security prisons in the UK (in Ahsan’s case, HMP Long Lartin) and supermax prisons are disingenuous. HMP Long Lartin does not practice prisoner isolation, it has fewer restrictions on exercise and provides better educational facilities. It does not severely limit prisoners’ access to family members.

In its judgement the Court comments that the Eight Amendment US constitutional protection against “cruel and unusual punishment” is directly comparable to European Article 3 protections. Yet the New York City Bar Association stated in 2011 that “in many cases supermax confinement constitutes torture under international law and according to international jurisprudence and cruel and unusual punishment under the U.S. Constitution”.

A detailed third-party report submitted to the Court by Repreive, Interrights and the American Civil Liberties Union maintains that the Eight Amendment provides “only limited protection” since the legal avenues by which a prisoner might report mistreatment are harder to access in the American system. Most worryingly, the report points out that Article 3 provides “much greater protection against mental suffering and psychological harm arising from conditions of detention” than that provided under the Eighth Amendment.

The Court’s judgement that the extradition of Ahsan and his co-defendants does not violate Article 3 has been met with extraordinary objection. Supporters include the UK’s leading human rights lawyers Gareth Pierce (who represents Ahsan) and Geoffery Bindman (who has criticised the UK-US Extradition Treaty). Supporters also include former UN advisor Philip Alston, Noam Chomsky, and America’s foremost constitutional legal scholar, Bruce Ackerman. The Court’s rulings appeared in the face of a submission by the UN Special Rapporteur on Torture, Juan Méndez.

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It is well-known that international human rights bodies (most obviously the UN Security Council) are subject to the vested interests and machinations of superpowers. The Strasbourg Court’s judgement on the Ahsan case needs to be seen in the context of strained UK-EU relations, superpower interests, and an ideological struggle against figures seen to embody “international terrorism”.

Talha Ahsan’s case was put before the Court in 2012 (it passed its final decision in April 2012). By chance this same period saw David Cameron assume the rotating presidency of the Council of Europe, giving him the opportunity to address (on 25 January 2012) the Parliamentary Assembly of the Council of Europe in Strasbourg.

Cameron’s speech, delivered to the Assembly three months before the Court’s decision, reveals the proper context in which Ahsan’s case should be seen. Cameron began his speech by emphasising that his chairmanship would focus on the reform of the Court before giving way to his misgivings about individual petitionary rights:

The Court is properly safeguarding the right of individual petition, and it is a principle the UK is committed to. But with this comes the risk of turning the court into a court of the fourth instance. Because there has already been a first hearing in a court, a second hearing in an appeal court and a third in a supreme or a constitutional court. In effect, this gives an extra bite of the cherry to anyone who is dissatisfied with the domestic ruling even where that judgement was reasonable, well-founded, and in line with the Convention …

With the candidness of barely guarded outrage, Cameron would then move on to discuss the specific quarrel he had with the Court. For, a mere week before Cameron’s speech, on 17 January, the Court had blocked his attempt to deport Abu Qatada to Jordon, ruling that this would breach Article 6 (the right to a fair trial) "given the real risk of the admission of evidence obtained by torture at [Qatada’s] retrial".

In his speech Cameron intones against the folly of European obstruction of the fight against international terrorism, gesturing to the radical reforms this obstruction now demanded:

Protecting a country against terrorism is one of the most important tasks of any government. Again, no one should argue – I would never argue – that we defend our systems of rights and freedom by suspending those freedoms. But we do have a real problem when it comes to foreign nationals who threaten our security. In Britain we have gone through all reasonable national processes … including painstaking international agreements about how they should be treated … and scrutiny by our own courts … and yet we are still unable to deport them.

It is therefore not surprising that some people start asking questions about whether the current arrangements are really sensible. Of course, no decent country should deport people if they are going to be tortured. But the problem today is that you can end up with someone who has no right to live in your country, who you are convinced – and have good reason to be convinced – means to do your country harm … And yet there are circumstances in which you cannot try them, you cannot detain them and you cannot deport them.

By these words, the Court, whose judgement was barely three months away, was put on notice for acquiescence in the Ahsan case.

On first hearing, Cameron’s speech might be dismissed as toothless posturing. Yet the twelve months preceding Cameron’s 2012 address had seen sustained criticism of the Strasbourg Court by UK senior politicians and by sections of the British press. Hostility had grown particularly intense in 2005 with respect to the Court’s decision (in the case of Hirst) regarding prisoners’ voting rights, an issue which continues to foment aggression towards the Court. In February 2011, the influential think-tank Policy Exchange released a major report setting out a plan for UK withdrawal from the Court and the Convention, if not the Council of Europe and the European Union. The conciliatory outgoing President of the Court, Nicolas Bratza, would admit in 2012 that “the UK leaving [the Court] would be very damaging”.

This aggression towards the Court was, among other things, stoked by blocks to extradition. As far back as 1989 the Court had blocked extradition on the basis of an Article 3 violation. As a yet another Conservative-backed report put it in 2011, referring to the case of Chahal, “the Strasbourg Court has set a rather low threshold on what may constitute, in particular, degrading punishment”.

In other words, individual petitions asking for the Court’s protection from an Article 3 violation – the exact nature of Ahsan’s petition – had been signally opposed by UK government figures in the run up to Ahsan’s petition to the Strasbourg Court. Then, in January 2012, Cameron would add to this momentum against the Court by invoking the struggle against terrorism specifically.

Although the Strasbourg Court is a judicial body independent of the European Council, Commission, and Parliament – and the politicking that surrounds them – it would be naïve to suggest that Cameron’s vehement address to the Court did not have political aims beyond a reformist agenda for the Court. The fractious and defensive qualities of the speech recall strained UK-EU relations, which also threatened to make the UK’s relationship with the Court unsustainable.  Cameron’s speech has half a populist eye to conservative anti-EU sentiment, and accordingly the British press would conflate anti-Court sentiment with anti-EU sentiment.

In this light can we see Ahsan’s case as a Rubicon moment for the Strasbourg Court? Was the Ahsan decision an opportunity for the Court to make a reconciliatory gesture to the UK, reassuring the UK government that it respected its vested national interests, and that it was prepared to recognise exceptional terrorist threats? Or, alternatively, would the decision cue the UK’s withdrawal from the Court, the Convention, and even from the Council of Europe itself, in the name of the fight against international terrorism?

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Of course, another superpower’s interests were also at stake in the Ahsan decision. A largely unknown fact about the case is that on March 1 2012, the month before the Ahsan judgement was given, Strasbourg judges – including two members of the Court Chamber who judged on the Ahsan case, Lech Garlicki and Nicolas Bratza – visited Washington to take part in a closed conference with US Supreme Court Justices. The first of its kind, this closed-door conference – Judicial Process and the Protection of Rights: the U.S. Supreme Court and the European Court of Human Rights – brought together members of the Strasbourg Court with Supreme Court Justices Stephen Breyer, Samuel Alito, Anthony Kennedy and Sonia Sotomayor. Also present were the UK government’s in-house legal counsellor, Derek Walton, who was representing the UK in Ahsan’s European Court case, and the vastly influential Harold Koh, who was serving as Obama’s appointed Legal Advisor to the State Department.

There are several things here that raise concern: first, the simple fact that there was a closed-door meeting that included sitting judges of the Strasbourg Court on an open case in which the US was implicated. More concerning still is the fact that the conference discussed “rights protection” – a key issue about to be decided in Ahsan’s appeal by the same judges in Strasbourg – and the parallels in rights protection between the US Supreme Court and the Strasbourg Court.

Crucial to the Ahsan case was the question of whether the US Eighth Amendment provided the same protection as Europe’s Article 3, and it is therefore deeply troubling that sitting judges attended a conference designed to emphasise similarities in legal practice between Supreme Court justices and Strasbourg justices.

Superpower influence is not always sustained in observable or overt ways. Diplomatic assurances that there are reasonable legal protections in place, and that a state’s highest judges are concerned about rights protections, is another means by which a superpower can influence events. While UK Law Lords have warned against “diplomatic assurances” from non-Western states known to practice torture, they are unlikely to apply the same censure to US polices.

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Talha Ahsan's father, brother and mother. Photograph: Aimee Valinski

It appears that the judgement of the European Court of Human Rights that there was no Article 3 violation in the Ahsan case was influenced in some way by the unique combination of state pressure from two superpower governments. And it is at least arguable that the Court’s decision was based more on diplomatic assurance than on judicial resolution.

Hamja Ahsan was hopeful that the Strasbourg Court would protect his brother. In the days before the Court’s final decision, he listened to Gary McKinnon’s Song of Silence on repeat late into the night. But the Court did not even spell Talha Ahsan’s name correctly, let alone uphold his rights. Since the decision Hamja has been recognised for his campaign work on his brother’s case.

The UK and US will continue to attempt to protect themselves from censure by invoking Constitutional traditions and common law protections – “reasonable national processes”, in Cameron’s words, in the face of threats to national security. Yet it is clear that these long-established constitutional procedures that ensure the protection of individuals have been cast aside. Norms of state practice are now based on the exceptional threats posed by terrorism, for which supposedly no legal protections can (nor ought) to apply. This new order of state practice has allowed a violation of international law to be concealed by judicial obedience to state interests.

Although the legal proceedings against Talha Ahsan are scheduled to begin in October 2013, it is unclear how long he will spend in pre-trial detention in the US – it could be years – in addition to the six years he has already spent in prison without trial or evidence of his guilt. His family reports that Ahsan continues to read broadly and build his literary career despite his extreme confinement. If he is found guilty, however, and his sentence is imposed to its maximum of life imprisonment, his future lies inside the walls of a supermax prison. 

The campaign for justice for Talha Ahsan can be found online here