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U.K. Terrorism Suspects May Challenge Extradition Based on U.S. Prison Conditions

by Matt Clarke

On July 8, 2010, the European Court of Human Rights (ECHR) in Strasbourg, France held that four suspects being detained in the United Kingdom pending extradition to the United States on terrorism charges could challenge their extradition based upon the expected prison conditions they would be subjected to in the U.S. – specifically the anticipated use of the federal supermax prison (ADX) in Florence, Colorado and the imposition of Special Administrative Measures (SAMs) restricting their contact with other people.

Babar Ahmad, Haroon Rashid Aswat, Syed Tahla Ahsan – all British citizens – and Mustafa Kamal Mustafa (AKA Abu Hamza al-Masri), the “suspects,” were arrested in the U.K. based on extradition requests by the United States following their indictment on terrorism charges in the U.S. The suspects challenged their extradition in the U.K.’s legal system alleging, among other claims, that they would be subjected to confinement in the ADX and SAMs if convicted. This account simplifies the complexities of three separate legal proceedings that were later consolidated before the ECHR.

The U.K. court held that the suspects’ complaints that they may be exposed to trial by military tribunal, the death penalty and rendition were nullified by a U.S. diplomatic note ensuring that their trial would take place in federal court, the death penalty would not be sought and the suspects could be returned to the U.K. if acquitted.

The court found that the potential use of witness testimony obtained via torture would not block extradition, and its admissibility would be determined by the U.S. courts under federal rules of evidence similar to the U.K.’s evidentiary rules. The potential use of segregation before trial, placement in the ADX after trial and imposition of SAMs both before and after trial would not block extradition as such measures did not violate Article 3 of the European Convention on Human Rights.

Further, the court opined that one of the suspects, who had both of his forearms amputated and was partially blind and otherwise in poor health, would likely not be held in the ADX for long before being transferred to a medical facility. On appeal, the U.K.’s High Court agreed with the lower court. The suspects then applied to the ECHR.

The ECHR agreed with the U.K. courts except for the potential use of the ADX and SAMs after trial. In doing so, the ECHR noted that it was a virtual certainty that three of the suspects would be held in the ADX and all four would be subjected to SAMs if convicted. The suspects submitted studies to the ECHR showing that prolonged exposure to such conditions caused psychological and physical harm to most prisoners.

Although there is a program to “step down” from the most severe forms of isolation at the ADX, the process takes a minimum of three years to complete and prisoners who comply with the program still may not be placed in conditions with less isolation if prison officials believe their compliance is a reaction to the controlled environment rather than a result of rehabilitation.

The SAMs add another level of isolation by severely restricting who prisoners can interact with and preventing them from interacting with other prisoners. The suspects submitted evidence that this loss of social contact can also cause psychological harm.

The ECHR held that the suspects’ applications raised “serious questions of fact and law” as to the potential length of their sentences if convicted, and whether post-conviction confinement in the ADX and SAMs violated Article 3 of the European Convention on Human Rights. Those aspects of the complaint were declared admissible for the purpose of challenging the extraditions. The remainder of each application was declared inadmissible, with the ECHR crediting the diplomatic assurances of the U.S. that the suspects would not be designated as enemy combatants or subjected to rendition or the death penalty.

The suspects’ extradition was thus put on hold pending a full hearing before the ECHR following the initial admissibility determination. See: Ahmad, Aswat, Ahsan and Mustafa against U.K., European Court of Human Rights, Application Nos. 24027/07, 11949/08 and 36742/08.

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