|Montreal, December 6, 2003 / No 134|
by Ralph Maddocks
Those of us who delude ourselves into thinking that we still live in democracies which respect individual liberties ought to ponder the actions of the United States and United Kingdom governments in recent times. It is becoming practically impossible to keep track of the endless intrusions of personal liberty perpetrated by the US government with its Patriot Act and other draconian legislation. Legislation which is being mirrored in other countries who proclaim their attachment to human rights. Our own lovable Canadian Liberal government can and does issue security regulations which are never published and which, apparently, need not be. Such actions mean that people are likely to commit offences which they cannot possibly have had any knowledge.
Among such little publicised act is an extradition agreement between the US and the UK ostensibly bringing the US into line with procedures between European countries. What is interesting, and frightening, is that the agreement was signed on 31st March last and became known to the public only later in May. There was no parliamentary debate or scrutiny of the new treaty. It was drafted by Home Office officials and their US counterparts, signed on behalf of the UK by the Home Secretary, David Blunkett, and then published two months later. The lack of debate means that people are largely ignorant of the law and how it may affect them.
The agreement became law through a somewhat esoteric process known as an "Order in Council" since international treaties are agreed by the Privy Council (Cabinet Ministers being automatically Privy Counsellors) in the name of the UK Head of State, the Queen. The procedure falls under what is called the "royal prerogative," which is where powers have never been passed by parliament and Ministers can exercise powers on behalf of the Monarch – a somewhat undemocratic procedure. The Queen calls a meeting of the Privy Council – usually a handful of Cabinet Ministers – at which there is no discussion, merely agreement on the matters laid before it.
The decision to agree the new treaty on extradition then becomes an "Order," which because it relates to existing UK legislation (the 1989 Extradition Act) is subject to the 1946 Statutory Instruments Act. The latter Act calls for the proposal to be "laid before" parliament, which means being simply listed on the daily order paper. If MPs do not compel a vote to be taken on the floor of the house then the proposal automatically become law. It is extremely rare for MPs to force a debate and vote on such a matter because it would mean disrupting the planned agenda of the government of the day and presumably the reigning dictator would not like that.
The new treaty is said to bring extradition procedures with the US into line with extradition procedures to European countries, because, "the US is our biggest single extradition partner." A rather disingenuous statement because the UK Home Office Website states: "the majority of extraditions from the United Kingdom take place under the European Convention on Extradition."
The new Treaty has three major effects. Firstly, it removes the requirement for the USA to provide prima facie evidence when requesting the extradition of people from the UK, but the UK is required to satisfy the "probable cause" requirement in the US when seeking the extradition of US nationals. Secondly, it removes, or at least restricts, the current key protections available to suspects and defendants. Thirdly, it implements the EU-US Treaty on extradition, signed in Washington on 25 June 2003, but goes well beyond the provisions of that agreement.
As Ben Hayes of Statewatch, a group which monitors the state of civil liberties in the European Union, commented: "Under the new treaty, the allegations of the US government will be enough to secure the extradition of people from the UK. However, if the UK wants to extradite someone from the US, evidence to the standard of a 'reasonable' demonstration of guilt will still be required. No other EU countries would accept this US demand, either politically or constitutionally. Yet the UK government not only agreed, but did so taking advantage of arcane legislative powers to see the treaty signed and implemented without any parliamentary debate or scrutiny. The presence of such devious constructs as Guantanamo Bay, the failed extradition of Lofti Raissi, and US contempt for the International Criminal Court make this decision to remove relevant UK safeguards all the more alarming."
It may be recalled that Lofti Raissi, a 27-year-old commercial jet pilot from Algeria was arrested in London 10 days after September 11 and accused of being the key flight instructor for four of the hijackers, including suspected ringleader Mohammad Atta. His name had been on an FBI watchlist and he became the first person to be accused of participating in the attacks on the World Trade Centre and the Pentagon.
On February 12, 2002 he was released on bail from a high security prison in the UK, and on April 21, 2002 a judge ruled that there was no evidence whatsoever to connect him with terrorism. This has not stopped him from being harassed ever since, and he and some members of his family have lost their employment and their homes. The attempted extradition of Lofti Raissi from the UK failed precisely because the US did not provide any evidence to support their "holding charges" that he trained the 11 September hijackers. Under the new treaty not only would Mr. Raissi almost certainly have been extradited, but it is also possible that he could be the subject of a new US request requiring no evidence at all, and unlike the EU-US extradition treaty the UK-US agreement will be retrospective (Article 22(1)).
The evidence requirements in the new treaty, as with the old treaty, are that the offences must satisfy "dual criminality" and be punishable in both states by a minimum custodial sentence of one year or more. The crucial difference is that under the old treaty the requesting state had to provide evidence: "sufficient according to the law of the requested Party [...] to justify the committal for trial." Not an especially high standard and similar to that used in domestic criminal proceedings. However, under the new treaty, the state seeking extradition must furnish only "a statement of the facts of the offense(s)." [sic]
As a note in Justice said in a briefing on the treaty, the reason behind this lack of reciprocity is: "that the United States has a constitutional protection which prevents it from extraditing a US citizen purely on the say-so of a foreign government. As the UK does not have such a constitutional protection, the UK is at liberty to forego this important safeguard in the interests of speeding up extraditions to the US." The UK-US treaty's Article 7 covers the death penalty, stating that: "the executive authority may refuse extradition unless the Requesting State provides an assurance that the death penalty will not be imposed or, if imposed, will not be carried out."
The term "may refuse" does not meet the obligations of the member states under the European Convention on Human Rights (protocols 6 and 13) or the case law of the European Court which has upheld an absolute bar to extradition where the death penalty may be imposed. Given the attitudes of Messrs Ashcroft and Rumsfeld in recent times, the lack of a clear unconditional UK refusal to extradite in death penalty cases is not very reassuring; and many might wonder whether this flimsy assurance will be respected when the question arises.
The "speciality rule," which should mean that a person may not be tried for offences other than those for which they were extradited unless given an opportunity to return to the country which extradited them in the first place, is also ambiguous. The new treaty allows the UK Home Secretary to waive speciality and consent to "detention, trial or punishment" (as opposed to simply prosecution) for any offence not just the extraditable one (Article 18(1)(c)). As Justice, the legal human rights organisation pointed out, this allows for the possibility that the Home Secretary could consent to indefinite detention of a person in Guantanamo Bay for an offence other than that for which they were initially extradited.
Other barriers to extradition already in existence have also been weakened in this shameful document. One long established principle is that a state may withdraw from its extradition obligations if it believes that the offence was of a political character. This derogation covers the possibility of apparent political persecution and was clearly stated in the previous 1972 UK-US extradition agreement. The new agreement disqualifies a whole host of offences as being political (Article 4), and leaves it up to the president of the USA to decide if the matter is political or not!
Tactitus (c 56 - 115 AD), the Historian and Roman Official commenting on the British character in a work on the causes of the rebellion led by Queen Boudica in 61 AD said, "The Britons bear conscription, the tribute and their obligations to the empire without complaint, provided there is no injustice. That they take extremely ill; for they can be ruled but not to be slaves." Tacitus must be gyrating wildly in his grave these days.
All these events give grave cause for concern since the USA regularly breaches international law, especially since 911, and readers know that this is by no means the first time that the US has done such things. As Linda Woolley, a UK extradition specialist has written: "There is a growing body of case law and evidence that the United States of America is breaching the procedures of the extradition treaties under which it seeks the return of suspects to face trial. It does so at the cost of the rights of individuals concerned, the principles of 'comity and reciprocity' upon which extradition procedures are founded, and the British tax payer."
Recent treatment of a couple of Canadian citizens by the USA does little to dispel Ms Woolley's conclusion. Late in 2001, in the aftermath of the events of 911, the Liberals, aided and abetted by many in the Opposition, enacted the Anti-Terrorism Act. This legislation made an end run around our cherished Canadian Charter of Rights and Freedoms. Which is exactly what the Patriot Act, legislated by the US Congress, did with respect to the hitherto sacrosanct US Constitution. Both pieces of legislation giving their respective governments expanded powers to incarcerate people suspected of having terrorist links without having to charge them with an offence. In addition, in December 2001, then Foreign Minister John Manley and the US Homeland Security chief, Tom Ridge, signed the Smart Border Declaration in Ottawa. In it, among other things, Canada and the USA agreed to increase intelligence sharing between the two countries, in particular with respect to high risk travellers. In essence the SBD meant that Canadian authorities would alert the Americans to persons about whom they had security concerns.
Were Canadian authorities so naive that they thought that this agreement would have no effect on the fortunes of Canadian citizens, especially those of Middle Easter origin? Post 911 there were numerous examples of the vindictive atmosphere in the USA. People of apparent Middle Eastern origin were frequently attacked and, in one telling illustration of the state of teaching geography in the USA, even one turban wearing Indian was killed. In those turbulent days there was even public discussion about the merits of torture to extract information from terrorism suspects. Astonishingly, well known Liberal civil libertarians, such as Alan Dershowitz, were even arguing that the USA should consider establishing a judicial process for the use of torture in appropriate cases. Commentators at the time noted that there was an alternative to Americans torturing their suspects themselves. This odious chore could be delegated to countries with a less squeamish view of civil rights, such as surprise, surprise, Syria!
Should anyone be shocked then that Mr. Arar was deported, not to Canada as a Canadian citizen would have every right to expect, but to his country of origin, Syria, where he claims he was repeatedly tortured? Our Prime Minister insisted that the decision to deport Mr. Arar to Syria was made in Washington, not in Ottawa. However, US sources insist that Mr. Arar's name was passed to American law enforcement agencies by Canada's horsemen themselves. Solicitor-General Wayne Easter then admitted that Canada had provided intelligence information on Mr. Arar to American officials. We will probably never know the truth because both sides are certain to make sure that it never emerges, although some poor, unfortunate low level CSIS or RCMP employee will undoubtedly be found to whom full responsibility for Mr. Arar's plight can be attached.
Languishing in various Canadian detention centres, one of them for over two years now, are four or five gentlemen with Middle Eastern names. All are being held on so-called "security certificates" signed by the Minister of Citizenship and Immigration Canada, Denis Coderre. Such documents can have you declared a threat to national security, without telling you why. Among Mr. Coderre's other ideas promoting civil liberty are biometric ID cards for us all and he is also behind a bill which will permit him to rescind the citizenship of permanent residents, using secret evidence, without any right of appeal.
Anyone interested learning more about security certificates, and of the Kafkaesque world in which the above gentlemen and their legal representatives live their lives, should enter the name Mohamed Harkat in Google and read some of the articles to be found therein.
The duty to maintain the security of its citizens is one which is expected of any state, something which seemed to have been forgotten by the USA on 911 and which has been buried out of sight ever since. Luckily some people still retain a sense of justice and three high ranking military officers have filed a brief challenging the Bush administration's indefinite detention of suspected terrorists at the Navy base in Guantanamo, Cuba. The US government contends that all the detainees are enemy combatants and have no legal rights, prisoner of war status or access to federal courts. The trio, two of them former Judge Advocates General in the US Navy and the other a Marine general, are concerned that the lengthy incarcerations of alleged terrorists at Guantanamo, without any hearings being held, will undermine the rule of law and endanger US forces in other parts of the world whose captors may similarly choose to ignore the Geneva Convention.
Recently, the trio filed a Supreme Court amicus brief on behalf of 16 detainees held for almost two years, detainees against which the government has offered no evidence but contents itself with making statements such as that they are "the worst of the worst." It describes the other detainees similarly, which is odd given that some 88 have already been released. The deliberations of the Supreme Court which are to take place early next year will either affirm or strike down rulings made by lower courts which supported the dictates of the president and executive authority rather than the constitutional rights of the people. As one of the trio said, "We took an oath to defend the Constitution, not the president or secretary of defense." Quite so.
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