Extradition, Human Rights, and the War on Terrorism: How the Extradition Act 2003 May Undermine Human Rights Protections

Kevin Warne

Supervisors: Eugene McLaughlin & Leah Bassel

Department: Sociology

Programme: MA International Politics & Human Rights

Year: 2010 – 2011

Submitted: September 2011

Extradition, Human Rights, and the War on Terrorism

Contents

Acknowledgements ...... iv Abstract ...... v List of Abbreviations ...... vi Chapter 1: Introduction ...... 1 Chapter 2: Who is a ‘Terrorist’ Today? ...... 4 2.1 - Syed Fahad Hashmi ...... 4 2.2 - Babar Ahmad ...... 8 Chapter 3: Methodology ...... 10 3.1 - Access to Information ...... 10 3.2 - Participant Observation & Biases ...... 11 3.3 - Ethical Considerations ...... 12 3.4 - Examining a Case ...... 13 3.5 - Why This Case? ...... 14 Chapter 4: Material Support for Terrorism ...... 16 4.1 - Defining Terrorism ...... 16 4.2 - What is Material Support for Terrorism? ...... 17 4.3 - Holder v The Humanitarian Law Project ...... 18 4.4 - Gaza Freedom Flotilla and Jimmy Carter ...... 19 Chapter 5: Solitary Confinement in the U.S. Prison System ...... 23 5.1 - Extreme Isolation & Its Effects ...... 23 5.2 - The History of Solitary Confinement in the United States ...... 27 5.3 - What is 'good behaviour' under SAMs? ...... 29 5.4 - Possibilities for Reform ...... 31 Chapter 6: Extradition Law & Human Rights ...... 35 6.1 - 'Fast Track' Extradition ...... 35 6.2 - Interpreting Torture in International Law ...... 36 6.3 - European Court of Human Rights Rulings ...... 39 6.4 - MI6 & the Gibson inquiry ...... 41 Chapter 7: The United States of America v Syed Hashmi ...... 43 7.1 - Material Support for Designated Terrorist Organisations ...... 43 7.2 U.S. Prisons & Legal Systems ...... 45 7.3 Extradition ...... 47 Chapter 8: Recommendations ...... 49

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8.1 - Revising the Material Support Law ...... 49 8.2 - U.S. Prison Reforms ...... 50 8.3 - Revision of the Extradition Act of 2003 ...... 51 Appendix A: Interview Guides ...... 52 Appendix B: Materials from the ‘Free Fahad’ Campaign ...... 55 Appendix C: International Law Documentation ...... 58 Bibliography ...... 66

iii

Extradition, Human Rights, and the War on Terrorism

Acknowledgements

For all their support and interest in my work, I'd like to thank my advisers, Dr. Leah Bassel and Professor Eugene McLaughlin. Your guidance helped to generate valuable new directions for the research and analysis.

For taking the time to discuss their expertise and opinions, I'd like to thank Brooklyn College professor, Dr. Jeanne Theoharis, Amy Fettig from the American Civil Liberties Union, and Dr. Stephen Soldz of Psychologists for Social Responsibility. Also, for providing important research materials for this project, I would like to thank Dr. Sharon Shalev of the London School of Economics, Drake Lucas from Human Rights Watch, Pardiss Kebriaei from the Center for Constitutional Rights in New York, and my close friend Rebecca Taylor.

A special thanks to the activists, actors, poets and speakers of the 'Free Fahad' campaign for their continued efforts to address these issues and educate the general public. Your dedication to human rights and non-violent demonstration has been inspirational, as you stood outside the Manhattan Correctional Center to stage regular events for months, withstanding not only the cold and rain, but the criticism of those who would label you supporters of terrorism for standing up for your beliefs.

To my friends and family here and back in the states, thank you for all you support. And finally, thank you to all my fellow graduate students at City University London. We have all come from many different parts of the world and I have felt truly honoured to have met you all during my time in the UK, to hear your stories and your perspectives. You have also been some of the nicest people I've ever had a chance to meet and I'm truly grateful to have been able to share this experience with you.

Kevin Warne

Abstract

The nature of the international political system has meant that both human rights laws and security measures are issues of cooperation and conflict between nations. In the decade since the 9/11 terrorist attacks, the U.S.-led War on Terrorism has brought these issues to the forefront. New laws have been drafted and revised to help the growing international threat.

These laws are interrelated and overlapping. Proponents justify them as necessary means to combat a threat. However, they are often discussed in isolation, without considering what the real affects of these laws may be together. The case of Syed Fahad Hashmi helps to illustrate what can happen when different elements come together. Due to controversial changes to the U.S. prison system, vague charges of support for terrorism, and a so-called 'fast track' extradition treaty, have led to Hashmi serving a 15 year sentence in solitary confinement, conditions which have been decried by both health officials and legal scholars.

The extradition agreements can mean that the international community has their own level of responsibility for these kinds of violations, if the proper safeguards are not in place. The urgency to act quickly combined with the secrecy of the charges levelled against these suspects has, arguably, undermined the potential for greater human rights protections. This research will aim to demonstrate the failures of these revised laws to protect human rights and make a case of their revision. In particular, it will focus on the lack of oversight involved with current extradition laws.

Extradition, Human Rights, and the War on Terrorism

List of Abbreviations

ACHR - American Convention on Human Rights

ACLU - American Civil Liberties Union

ADX - Administrative Maximum Facility

CCR - Center for Constitutional Rights

CDCR - California Department of Corrections and Rehabilitation

EAW - European Arrest Warrant

ECHR - European Convention on Human Rights

ECtHR - European Court of Human Rights

HLP - Humanitarian Law Project

ICCPR - International Covenant on Civil and Political Rights

LTTE - Liberation Tigers of Tamil Eelam

MCC - Manhattan Correctional Center

MDOC - Mississippi Department of Corrections

PKK - Kurdistan Workers Party

SAMs - Special Administrative Measures

SHU - Security Housing Unit (also known as Special Handling Unit)

Supermax - Supermaximum Security Facility

THAW - Theaters Against War

UDHR - Universal Declaration of Human Rights

USP - United States Penitentiary

WHO - World Health Organisation

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Chapter 1: Introduction

With the election of U.S. President Barack Obama in 2008, many people began to feel a new hope for the future. His supporters believed that his policies could return a sense of humanity to America's foreign policy. Setting himself apart from his predecessor, he quickly declared water boarding to be a form of torture and forbid its use by interrogators

(Buschschluter, 2009). He also promised to close the notorious Guantánamo Bay detention centre, though it is not yet clear when this may happen (Shane, 2009). His support was not just limited to the United States as the 'hope' that he preached was celebrated across the world. However, his administration has also seen the continuation of many controversial policies, from the presidency of George W. Bush and before. As a close ally of the U.S., the

United Kingdom has a responsibility to be aware of the potential abuses of power and human rights violations happening across the Atlantic. It is not simply a matter of applying foreign pressure. Intelligence sharing and international cooperation can mean that the UK, as well as other states, can be complicit in these abuses if the proper safeguards are not present.

Several high profile cases are now being considered that highlight some of these controversies. The case of Babar Ahmad and Others v the United Kingdom shows how a vague but obscure legislation from the Clinton administration has been expanded and put to use under the USA PATRIOT Act, redefining who may be suspected of terrorism-related crimes (Papademetriou, 2010). This law, the ban on material support for designated terrorist organisations, has been criticised by numerous human rights groups as well as former U.S.

President Jimmy Carter (Richey, 2010). They believe that the law is so vague and expansive that even humanitarian aid and work towards peaceful negotiations can be lead to arrests for association with terrorists.

Extradition, Human Rights, and the War on Terrorism

A much better known case related to heightened security measures is that of Bradley

Manning, the American soldier who allegedly provided classified materials to the highly controversial Wikileaks web site. Manning was kept in solitary confinement at a Marine Corp base in Quantico, Virginia for almost a year (Nakashima, 2011). Amnesty International and nearly 300 legal scholars successfully pressured the U.S. government to transfer him to a less harsh facility on 20 April 2011 on the grounds that his conditions were disproportionate and unnecessary (Ackerman & Benkler, 2011). While his conditions did get some attention, some argue that they failed to address the extent of the problem of solitary confinement in

U.S. prisons. A more typical example might be Thomas Silverstein, who has been in extreme isolation for nearly thirty years for the crime of killing a prison guard while in detention

(Summers, 2001). While his actions are inexcusable, this treatment over this prolonged period has raised questions about its legality, mental health effects, and the ability of prisoners to improve their own conditions. Silverstein will be suing the Federal Bureau of

Prisons, a court hearing for which has been set for 23 January 2012, over these practices which have proliferated in the past decade (Casella & Ridgeway, 2011b).

Babar Ahmad is likely to share Silverstein's fate, even being housed in the same facility, if his extradition is approved. Here we see what Britain's connection is to these policy changes. The European Court of Human Rights (ECtHR) is set to discuss Ahmad's case to determine if extradition will fit within the UK's responsibilities (Doyle, 2010). If they determine that the vagueness of the material support ban and the alarming trends in U.S. prisons amount to a violation of the European Convention on Human Rights (ECHR), Ahmad and future suspects may be spared from potential human rights violations. Therefore, it is important to examine these elements with relevant examples to better understand what these responsibilities should be.

The following chapters will examine the responsibility of the United Kingdom in its foreign relations in a time of heightened security worldwide. These laws are more than abstract concepts. To better understand their application to the real world, this writing will

Kevin Warne centre on the case of The United States of America v Syed Hashmi, which brings together the elements above. Similar in many respects to Babar Ahmad's case, this example illustrates what can happen when these powers are left unchecked. His case has concluded and so, it provides important details about the potential for abuse.

The following chapter will provide the background information on Hashmi and

Ahmad's respective cases to give the reader a basic reference points for the remainder of the writing. Before going in depth, Chapter 3 will focus on the methodology used for the research, its benefits and limitations, as well as ethical considerations. Chapter 4 will examine the ban on material support to terrorist organisations, its history and expansion in the last decade, and potential abuses of power. Chapter 5 will look at the U.S. prison system, as it treats terror-related suspects. It will argue that the use of solitary confinement, which was once limited to the 'worst of the worst' gang members, has been increasingly applied to political dissidents through the material support ban. Chapter 6 will focus on the

United Kingdom and the extradition treaty with the United States. It will consider the responsibilities under the ECHR and the delicate balance with security concerns internationally. The UK's pledges and agreements will be considered against the judgments of the ECtHR. Chapter 7 will return to Hashmi's case to apply the findings of the previous three chapters. Arguments will be made whether these laws may be considered abuses of power by the United States as illustrated by this case. Finally, Chapter 8 will provide recommendations for the United Kingdom to apply oversight to their allies within these kinds of international agreements. Because the responsibility is not solely on the UK, recommendations will also be made for the United States in order for the two states to work together to enhance security while respecting the rights of their citizens.

Extradition, Human Rights, and the War on Terrorism

Chapter 2: Who is a ‘Terrorist’ Today?

2.1 - Syed Fahad Hashmi

Syed Fahad Hashmi was born in Pakistan in 1980 three years before his family moved to the United States. There they became naturalised citizens in the diverse community of Queens in New York City. Fahad, as his friends knew him, enrolled in Brooklyn

College for his undergraduate education. There he engaged with his professors and fellow students. His former professor of civil rights, Dr. Jeanne Theoharis, recalls having Hashmi in class and his interest in discussing social issues with anyone he could talk to. He wrote an essay for Dr. Theoharis about discrimination towards the Muslim community in the United

States after 9/11 (Theoharis, 2011).

Upon finishing his undergraduate degree, Fahad moved to London to continue his education. At London Metropolitan University, he studied International Relations and continued to be engaged with other students and the community. During this time, he met

Mohammed Junaid Babar, a fellow Pakistani-American in London. Babar needed a place to stay for two weeks, which Hashmi allegedly offered. He brought with him a duffle bag containing waterproof socks, ponchos, and raincoats. Babar also used Hashmi's mobile phone to make several international calls (Theoharis, 2009).

After leaving Hashmi's flat, he boarded a plane for South Waziristan, Pakistan where he met Al Qaeda leaders and delivered the duffle bag to them. Babar was later arrested after returning to the United States. He was held in the Manhattan Correctional Center (MCC) in

New York City where he confessed to aiding Al Qaeda and agreed to give vital information to the U.S. government. Babar had also helped to train the terrorists of the 7/7 bombings and gave testimony leading to the conviction of several other men with plots for attacks in

London. The U.S. authorities agreed to lower his sentencing for any useful information, ultimately bringing his sentence down from 70 years to 5 years. Babar confessed to plots to

Kevin Warne assassinate Pakistani President General Pervez Musharraf, for which he would have received the death penalty if he was returned there. Having an interest in protecting his own life, Babar co-operated and gave as much information and detail as he could to Western governments, acting as an informant for American, British, and Canadian authorities (Malik,

2011a). Among the people he named was Hashmi, who was arrested at Heathrow airport en route to Pakistan on 6 June 2006 (Theoharis, 2011).

Hashmi's arrest was a result of a recently revised law in the United States forbidding

'material support to designated terrorist organisations'. Hashmi was neither accused of being a terrorist nor of having associations with any terrorist organisation, but rather for being a

'quartermaster' for Babar's delivery. These socks, raincoats, and ponchos have been classified as 'military gear' by the U.S. government (The Daily Mail, 2007). After a year of fighting extradition, he was sent to the United States on 27 May 2007, and held at MCC.

Despite having had no complaints about his behaviour there or in Belmarsh Prison in

London, the presiding judge, Loretta A. Preska, imposed Special Administrative Measures

(SAMs) on Hashmi after his first five months of his detention there. SAMs is a form of solitary confinement reserved for 'worst of the worst' in the U.S. prison system. Prisoners are kept in isolation for 23 hours a day, with one hour in a separate cell for exercise, still isolated from any other prisoners. Visits from immediate family members were allowed every two weeks at the whim of the prison staff, and any letters or news from the outside world is heavily censored, if allowed at all. Due to numerous delays, Hashmi's case did not come before a federal court for another three years, during which time the SAMs were continuously renewed with the approval of Presidents Bush and Obama (Theoharis, 2009).

Supporters of Hashmi began to demand his civil rights and fair treatment. His family and friends began organising locally. Activists joined the effort, as well as Hashmi's former professor, Dr. Theoharis, who became a driving force for the 'Free Fahad' campaign. Bi- weekly vigils were held outside of the MCC by the groups Theaters Against War (THAW) and Educators for Civil Liberties. Together they staged productions and gave speeches,

Extradition, Human Rights, and the War on Terrorism using satire, civil rights history and appeals for change. On 18 January 2010, the birthday of

Dr. Martin Luther King, Jr., several hundred participants arrived and tried to cram onto a small piece of pavement across from the MCC. They included Hollywood and stage actor

Wallace Shawn, musician Dar Williams, and journalist and war correspondent Chris Hedges, along with a host of concerned citizens. The activists organised petitions, receiving support from local and international organisations such as the Center for Constitutional Rights (CCR) in New York. Prominent academics also signed, including Professor Noam Chomsky. All actions were completely nonviolent and within the law, but nonetheless showed the determination of those involved. Letter writing campaigns took place to Attorney General Eric

Holder and to Hashmi himself (for a sampling of materials produced by this campaign, see

Appendix B).

During this time, the constitutionality of the law against material support for terrorism was being discussed in the U.S. Supreme Court. In June 2010, the court considered the case of Holder v The Humanitarian Law Project (HLP), which ultimately upheld the key provisions of the law. This case will be examined more closely in Chapter 4. Although a major disappointment to Hashmi's supporters, they did not stop their efforts.

Once a court date was set for Hashmi's trial, the judge ordered that the jury be

'anonymous'. They were to be escorted in and out of the court room by the police to keep them from members of the campaign. The reaction was strong as many grew concerned about his prospects for a fair trial. If the jurors were informed that there is a concern for their safety, not only from the defendant, but from his supporters who may share a "violent ideology" as well, it was likely to influence their decision before the trial began, they argued

(CCR, 2010).

The U.S. mainstream press largely ignored these concerns and adopted the views of the presiding judge. In many cases, the press even went a step further and labeled Hashmi a terrorist, despite having never been convicted or even charged with this crime. Other, usually

Kevin Warne left-leaning, publications and web sites provided more nuanced and detailed accounts, but the mainstream view, as expressed in papers like the New York Post, consistently used such terms as 'terrorist', 'jihadist', and even 'terror rat' (De Krester & Sullivan, 2007).

The campaign was unable to challenge the decision for an anonymous jury with such short notice. The following day, before the trial was to begin, the U.S. government offered

Hashmi a plea agreement. In exchange for pleading guilty, three of the four charges against him would be dropped, lowering his maximum sentence from 70 to 15 years in prison (NY

Daily News, 2010). To the disappointment of many activists, Hashmi accepted this agreement. It is likely that he felt, given the circumstances, that this was the best chance he had. However, much discussion was generated at the next Free Fahad vigil outside the

MCC. Was the plea agreement a response to pressure from the campaign and the academics and activists who opposed what they saw as a violation of human and civil rights? If so, some argued that by accepting the agreement, the cause was damaged. A precedent had been set for others to be found guilty and subjected to the same conditions.

Others countered that Hashmi had been suffering for over three years in solitary confinement and that without having experienced what he had, people were in no position to judge his decision.

In June 2010, Hashmi returned to court. Supporters flooded the federal court building. The court room quickly filled up and two overflow rooms were filled as well, with video feeds of the proceedings. Hashmi spoke in his own defence, speaking quickly and uneasily and stuttering frequently. The image did not recall the eloquent debater of Dr.

Theoharis's classroom. The judge interrupted to request that he speak more clear so his words could be understood and recorded. Hashmi apologised for his speech, but quickly explained that three years under SAMs had made speaking difficult for him. Nonetheless, his words were eloquently written ('Justice 4 Fahad', 2010). He spoke of his Muslim faith and what he referred to as his mistakes (Golding, 2010). The Judge Preska asked if he truly was guilty, to which Hashmi replied, "Alhamdulillah, yes."

Extradition, Human Rights, and the War on Terrorism

After both sides presented their cases, Judge Preska found Hashmi guilty of one count of conspiring to provide material support to Al Qaeda. He was sentenced to the maximum punishment allowed, 15 years in prison (ibid). Three years had already been served and his supporters hoped that with good behaviour, he could be out sooner. More disheartening news came later as SAMs were renewed for Hashmi indefinitely, followed by the news that he was to be transferred to United States Penitentiary Administrative

Maximum Facility in Florence, Colorado (Casella & Ridgway, 2010). The facility is better known as ADX Florence and is often called the 'solitary capital of the world' and the 'Alcatraz of the Rockies' (Fernandes, 2006). Being held on the other side of the country from his family, even the most important perk he had pre-trial, occasional family visits, would now become very difficult.

While the 'Free Fahad' campaign did discuss extradition, the immediate concern was always what happens now, not what should have happened. Extradition was a matter for the

United Kingdom and the treaties and bodies to which it is bound. As the European Court of

Human Rights now considers a similar case, Hashmi's conditions have not improved. The details of the case could, however, prove to be important for current and future considerations by the United Kingdom, the ECtHR, and other international actors.

2.2 - Babar Ahmad

The case being considered is that of Babar Ahmad and others v. The United

Kingdom. Like Hashmi, Ahmad was arrested in the United Kingdom by a request from the

United States under charges of material support for terrorism. The US and UK contend that he helped to develop web sites to support and recruit insurgent forces in Afghanistan and

Chechnya (BBC, 2005). Ahmad was arrested in August 2004 in his home in Tooting, South

West London. He has since been fighting his extradition. On the grounds that the probable result of a conviction in the United States would be a detention in ADX Florence or similar

Supermax prison, and kept under SAMs, the case has been brought all the way to the

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ECtHR. The Court ruled in 2010 that extradition should be delayed to further examine whether the conditions of these Supermax facilities may render extradition contrary to the requirements of the European Convention on Human Rights (Human Rights Watch, 2011).

Of particular concern is the Convention's prohibition on torture and inhuman and degrading treatment as many continue to argue that extreme isolation is a clear violation.

Unless the U.S. courts can be convinced otherwise, Hashmi's fate will have already been decided in a court of law, despite the controversies therein. Highlighting the conditions of his detention both within the United States and internationally can, however, shed light on a growing problem. With enough pressure, the remainder of his sentence might be served under more humane conditions, allowing him to interact and pray with other inmates and talk to his family on a more regular and open basis. Babar Ahmad, on the other hand, may have a chance of freedom or at least to stand trial in his own country. Furthermore, future cases like Mr. Hashmi's and Mr. Ahmad's will depend heavily on the decisions from the Strasbourg

Court. Considering the state of world affairs as the War on Terrorism and unrest throughout the Middle East continue, it is likely that there will be many more such cases as the controversy between security and human rights will continued to be debated in courts.

Extradition, Human Rights, and the War on Terrorism

Chapter 3: Methodology

3.1 - Access to Information

The greatest difficulty in research like this is access to information. The subject of the case being studied, Syed Fahad Hashmi, is completely unreachable due to the conditions of his confinement. Under SAMs, Hashmi is only allowed contact with immediate family members and his attorney. Even this privilege is subject to extreme limitations and censorship, and is often revoked. This option has not been pursued due to these conditions.

Instead, three interviews were conducted. Speaking on the challenges and possible reforms in the U.S. prison system was Amy Fettig, the head of the National Prisons Project of the American Civil Liberties Union (ACLU). The head of Psychologists For Social

Responsibility, Stephen Soldz, spoke about the effects of solitary confinement, as well as their campaign against the treatment of Bradley Manning. Finally, a member of Educators for

Civil Liberties, as well as Hashmi's former professor at Brooklyn College, Dr. Jeanne

Theoharis, spoke about her extensive knowledge of the case, as one of the chief advocates for his civil rights and due process. These subjects were chosen because they are active in their fields and have written or spoken publicly about their subjects. Therefore, this author did not anticipate any serious ethical problems with including their opinions and expertise.

Interviews were open ended, utilising a custom made interview guide for each subject (see

Appendix A) to allow respondents to speak freely and guide the topics, if they proved useful to the research.

A number of other potential interview subjects were contacted, including members of

Amnesty International, Human Rights Watch, Reprieve, and Liberty. The author appreciates that these organisations did not have the time to devote to an interview, though some were able to provide important resources. Finding authoritative sources to provide the other

Kevin Warne perspective proved difficult, as government representatives in the U.S. were largely unavailable and the mainstream press was unresponsive to requests.

In order to best represent the other perspective, sources have included articles from the mainstream press in support of the American government's case, as well as transcriptions from court hearings, representing the prosecution's views. As Robert Stake has written, using these kinds of multiple approaches helps "to illuminate or nullify some extraneous influences." (1995, p. 114) There are of course other difficulties with these kinds of sources. As Robert Yin has written: "Few people realise, for instance, that even the

'verbatim' transcripts of official U.S. Congress hearings have been deliberately edited - by the congressional staff and others who may have testified - before being printed in final form." (2003, p. 87) Additionally, much of the evidence in these cases is classified by the

U.S. or other governments, so it should be acknowledged that relevant details may be impossible to obtain at this stage. Despite this limitation, the facts available still provide enough information to begin to examine the issues. The limitations themselves are in fact, part of the problem being examined, as issues of due process and transparency are related and will be addressed in the following chapters.

3.2 - Participant Observation & Biases

The debate between human rights and national security is a delicate balance and often provokes strong emotions and certain biases on both sides. The author himself is not exempt from these biases. In the interest of full disclosure, it should be noted that he was first introduced to these issues through his work on the 'Free Fahad' campaign, later renamed 'Justice 4 Fahad', in New York City. There, he attended events, joined in discussion, and met with civil rights activists, including Hashmi's friends and family. While the experience has certainly impacted his ideals and decision to pursue this research, attempts have been made to view this research objectively by examining a variety of sources, as

Extradition, Human Rights, and the War on Terrorism described above. No direct involvement with the campaign has taken place since beginning this research in the interest of separating himself further from the issues.

As already discussed, this bias also largely affects the interview subjects as well. Of course, pure objectivity is rarely achievable in such fields. As social sciences have evolved, such biases are generally seen by researchers as being less of a problem, with some even referring to such personal values as "the very subject matter of the social sciences" (Williams

& May, 2000, p. 108) and that because the same sets of data may produce different conclusions, "the very possibility of objective knowledge is denied." (Hammersley, 2000, p.

3) Advocates of this approach stress the importance of using multiple sources to highlight similarities and differences from different points of view. The following research takes this approach rather than attempting to hide personal biases of the authors and interviewees.

3.3 - Ethical Considerations

This research provides some unique ethical considerations which need to be taken into account. As mentioned above, much of the information on this case remains classified.

Under the Special Administrative Measures that Hashmi remains under, the limited number of visitors he is allowed, including his lawyer and immediate family members, are not permitted to discuss their visits outside of the prison facilities. The punishment for such transgression can be severe, as demonstrated by 71-year-old attorney Lynne Stewart, who was disbarred and jailed ten years for sharing information from her client, Omar Abdel-

Rahman, who was held under SAMs (Feuer, 2002). The significance of Stewart's case and these restrictions will be discussed in Chapter 4. From a research point of view however, it becomes necessary to work with subjects who specifically do not have certain kinds of information, to prevent them from sharing a similar fate. As already stated, the interviewees have all spoken and written publicly on the topics they spoke of and do not present a significant risk to their own well being.

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Another ethical question is posed by Rachel Aldred: "Might harm to one cause benefit to another, and how would one choose between them?" (2008, p. 890) Aldred feels that this issue is often not properly addressed by researchers in the social sciences, but that rather the research "assume[s] that benefits (to whomever) are 'good' and harms (to whomever) are 'bad'." (ibid) This question becomes very relevant when considering the balance between human rights and national security. The research is therefore approached with the belief that a choice does not always have to be made between one or the other. Though the focus is on the need for stronger human rights protections, the stress will remain on the need for creative solutions that do not sacrifice public safety.

3.4 - Examining a Case

This research will include a brief look at the case of Syed Fahad Hashmi v. The

United States. This case will be used to highlight the other factors and see how they can actually affect real people. The intent is to show that they neither are not abstract issues nor are they isolated from one another. Although the focus will be on the policies themselves, and in particular extradition law, Hashmi's case will used to show the relevance of the problem.

The advantage of looking at a case like this is that a single phenomenon can be examined through a wide variety of sources. From this analysis, we can examine the individual factors with a basis for reference behind them. The goal is not to suggest that the policies in place will always lead to abuse. Rather, it is meant to show the extreme end of the scale to illustrate that abuses are possible without proper safeguards. Authors Yvanna S.

Lincoln and Egon G. Guba reject the necessity of generalisibility in social science research in favour of what they call 'transferability':

Extradition, Human Rights, and the War on Terrorism

"How can one tell whether a working hypothesis developed in Context A might be applicable to Context B? We suggest that the answer to that question must be empirical: the degree of transferability is a direct function of the similarity between two contexts, what we shall call 'fittingness'. Fittingness is defined as the degree of congruence between sending and receiving contexts. If Context A and Context B are 'sufficiently' congruent, then working hypotheses from the sending context may be applicable to the receiving context." (2000, p. 40)

The concept of transferability fits into the purpose of this research. It is not to examine all possible contexts, but to suggest that there may be contexts similar to the case being studied. Whether such cases represent a small or large percentage of the norm, they should still be cause for concern for human rights advocates.

3.5 - Why This Case?

There are numerous reasons for studying this case in particular. In the first few years after the September 11th terrorist attacks in the United States, several laws were passed or revised to enhance security efforts. Proponents of these changes tend to explain their rationale for each law in isolation. And in fact, it could be argued that most of these changes could only do limited harm if the rest of the justice system and international legal provisions are able to provide a system of checks and balances. However, this author argues, the combination of all of these changes means that the accused often have little defence to rely on. Mr. Hashmi's case is in this sense an important example, as three major policy changes resulted in his present conditions. Those changes include the expanded use of solitary confinement and classified evidence in the American justice system, the expanded definition of the Material Support law under the USA PATRIOT Act, and the revised Extradition Treaty with the United Kingdom.

The last of these is the focus of the discussion. In this author's opinion, the international community should be able provide safeguards which enhance human rights.

The United States is bound by human rights law, but not subject to the same kinds of enforcement mechanisms that exist in the European Union. This provides another reason

Kevin Warne why it is important to study this particular case. Since revising the extradition treaty, Hashmi was the first person to experience it. Therefore, his case sets a kind of precedent for future extradition cases, as well as a warning of what can happen if these laws are not properly examined.

Extradition, Human Rights, and the War on Terrorism

Chapter 4: Material Support for Terrorism

4.1 - Defining Terrorism

One of the problems with designating and criminalising terrorist groups is in defining what terrorism is. The problem has been considered by most nations of the world, particularly after the September 11th attacks or their own domestic tragedies. In the United

Kingdom, the response to the Irish Republican Army led to many abuses of power by the authorities. As Paddy Hillyard writes, "[t]he boundary line between the prevention of terrorism and the terror of prevention had become blurred" as ten people were wrongfully convicted of bombings in Guildford and Birmingham, spending as much as 16 years in prison before being released (2010). Furthermore, conditions in the UK ostracised many Irish citizens, some of whom became easy recruits for the IRA (Peirce, 2008). Members of the affected communities tend to share information for their protection, while the general population is often unaware of the issue. British barrister Gareth Peirce argues that this was the case for the Irish in the late 20th century before the general population understood what had happened to them, and that the same thing is happening today to Muslims in the West (ibid).

This demonstrates the danger, not only for human rights protections, but potentially for security itself.

M.I.T. professor and well known political writer, Noam Chomsky, refers to the official

British government definition of terrorism as "the use, or threat, of action which is violent, damaging or disrupting, and is intended to influence the government or intimidate the public and is for the purpose of advancing a political, religious, or ideological cause", arguing that this is a fairly standard usage. From there he argues that if the definition were to be applied universally, Western states would be guilty as well. In practice, the definition is used selectively when it supports certain ideological goals (Chomsky, 2006). The same can be said of the responses to terrorism, as the British example towards the Irish and the American

Kevin Warne internment of the Japanese during World War II demonstrate. In order to operate with the widest possible margin, new and revised laws had to be passed in the United States and elsewhere.

4.2 - What is Material Support for Terrorism?

The ban on providing material support or resources to designated foreign terrorist organisations was first introduced in the Antiterrorism and Effective Death Penalty Act of

1996 in the United States, under the Clinton administration. It stated that anyone within the jurisdiction of the United States who "knowingly" provides such support, "or attempt or conspires to do so, shall be fined under this title or imprisoned not more than 10 years, or both." The material support itself is defined as "currency or other financial securities, financial services, lodging, training, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel, transportation, and other physical assets, except medicine or religious materials."

The provision of this Act aroused little attention and in fact was rarely, if ever, used before the September 11th attacks. In contrast, the controversial USA PATRIOT Act, voted for hastily after 9/11 in Congress, got much more attention as citizens grew concerned about the curbing of their civil liberties. Not only did the PATRIOT Act make use of some obscure laws already on the books, the law also strengthened many of them. Section 805 addresses

Material Support for Terrorism. Several key changes were made to the provision. The phrase

"within the United States" was stricken so that offences outside of American jurisdiction could be prosecuted. Similarly, the changes provided that violators may be prosecuted "in any…

Federal judicial district as provided by law" regardless of where the offence took place.

Additionally, the definition of material support was expanded to include "monetary instruments" and "expert advice or assistance."

Extradition, Human Rights, and the War on Terrorism

The expansion of the provision is brief, but the changes are significant. They expanded the violations to the entire world and made an already law vague much more expansive. The expert training and assistance is not further defined, leading to criticisms to be discussed below. More troubling for those concerned with human rights, was that this obscure piece of legislation was now going to be put into practice with as wide a margin as possible. Within the decade, challenges to the legislation had begun.

4.3 - Holder v The Humanitarian Law Project

The Humanitarian Law Project (HLP) challenged this section of the USA PATRIOT

Act, arguing in the U.S. Supreme Court that the broadness of the law makes practically any involvement with foreign political players a federal offence. In the case of Holder v The

Humanitarian Law Project, the HLP was representing human rights activists, doctors and other organisations working with the Kurdistan Workers Party (PKK) in Turkey and the

Liberation Tigers of Tamil Eelam (LTTE) in Sri Lanka (Liptak, 2010). Both groups have been designated by the United States as terrorist organisations, though the plaintiffs' efforts in each case was to promote peaceful solutions to their respective conflicts, such as appeals to the UN Human Rights Commission and negotiations with the state. In a 6-3 decision, the

Supreme Court upheld the law, arguing this training falls within the definition of the material support ban and that such efforts could "legitimate" these organisations in the international arena (Washington Post, 2010).

The decision was not without controversy and repercussions for those affected. In a

Washington Post editorial, it was argued that with this decision, "members of the

Humanitarian Law Project legally can stand on a street corner and praise the PKK for carrying out terrorist acts, but they cannot work with the PKK in an effort to stop the violence." (2010) In practice, the law has been used selectively, adding to the danger that it could be used more as a form of ideological control than a legitimate security measure.

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4.4 - Gaza Freedom Flotilla and Jimmy Carter

On 24 June 2011, U.S. Secretary of State Hilary Clinton announced that Americans joining the second Gaza Freedom Flotilla would be subject to persecution for material support for terrorism (Nuland, 2011). 50 American citizens joined in the attempt to break the

Israeli naval blockade on the anniversary of the first flotilla. Their ship, named the 'Audacity of Hope' after President Obama's autobiography, contained a cargo of letters of support and solitary with the people of Gaza (Walker, 2011). The Israeli blockade is understandably controversial. Though its critics maintain that it is a violation of international law, the Israeli government insists that it is necessary for security against Hamas rocket attacks. Some of the items prohibited have necessary for humanitarian aid, but equally potential for the use of weapons manufacturing (BBC, 2010). Letters of support, however, would not seem particularly dangerous for Israeli security. As a major ally of Israel, the United States was likely more concerned with the actually breaching of the blockade itself rather than what they intended to bring. The real concern seems to be communication with the Hamas government, another designated terrorist organisation, due to their history of attacks against

Israelis.

The lesson is well understood by U.S. attorney Lynne Stewart. Stewart built her reputation on defending the disenfranchised in the United States (Feuer, 2002), much like

Gareth Peirce did in the United Kingdom with Irish and Muslim terrorism suspects. Stewart represented a client, Omar Abdel-Rahman, suspected of terrorism charges connected to the

1993 World Trade Center bombing and who was also kept during SAMs pre-trial, much like

Mr. Hashmi. She had to undergo the same level of security as Hashmi's defence team with severe restrictions on what she could say publicly. Despite her restrictions, she was accused and convicted of passing information from her client to his supporters. She was convicted in

2003, disbarred and is currently serving her own sentence in prison (ibid).

Extradition, Human Rights, and the War on Terrorism

Even the act of traveling itself can make one a suspect under this provision. In what is considered by some to be an important test of the effects of Holder v. The Humanitarian

Law Project, 23 American activists from Chicago and Minneapolis were arrested after their homes were raided by the FBI on 24 September 2010 (Regan, 2010). They were originally arrested for their travel to Colombia and meeting with opposition groups there. Their stated goals were to learn about life under a U.S.-funded military government and return home to share their stories. The arrests extended to activists with similar goals visiting the Palestinian territories. Their fates have yet to be decided, but it appear that the expansion of material support for terrorism increasingly includes communicating and meeting with anyone connected to designated terrorist organisations even if the purpose is based on peace efforts and human rights concerns.

The law has been used selectively since its inception and the cases reveal certain political and ideological dimensions to the issue. As some organisers are quick to point out,

Barack Obama himself was closely involved with the anti-apartheid movement for South

Africa while he was a community organiser in Chicago (Murphy, 2011). At the time, Nelson

Mandela's African National Congress was a designated terrorist organisation during the time of Obama's efforts. Mandela in fact, was only removed from the terrorist watch list in 2008.

Had the material support law been in place during these years, Obama would have found himself guilty of the same crimes as the activists arrested today.

However, it is not limited to the fact that Obama was fortunate enough to be "on the right side of history" for this issue. The International Red Cross and Red Crescent movement issued a statement in regard to the decision to the effect that they did not fear being targeted

(Berry, 2010). Of course, very few would seriously argue that they should, as their humanitarian goals are well known as an established organisation around the world. This doesn't however change the fact that technically they too would be guilty of the violation, creating a double standard for humanitarian aid groups. Those with a trusted track record

Kevin Warne can be approved while the grassroots organisers are suspect for taking their own measures to fight for peace and human rights.

The double standard has been acknowledged by at least one high profile politician, former U.S. president Jimmy Carter. The Carter Foundation has devoted much in the way of time and resources to promoting peace and democracy, particularly in the Middle East.

Carter himself has acted as a monitor for the Lebanese elections, as well as working directly on peace building efforts with two official terrorist organisations as designated by the US,

Hezbollah and Hamas (Goodenough, 2010). Much like the International Red Cross and Red

Crescent Movement, President Carter is unlikely to be prosecuted under this law. He is an established and trusted international figure and of course, a former head of state in the country making these decisions. Nonetheless, he expressed his deeply felt concern over the potential effects of the law, which he claims would criminalise his organisation and be a detriment to genuine peace building efforts across the globe, and has publicly criticised the court's decision (ibid). Doubtless, President Carter understands that in his own privileged position, he is unlikely to be prosecuted, but of course that privilege is enjoyed by few as an increasing number of activists are realising.

The potential violators are not all left-leaning politicians, grassroots activists, or humanitarian organisations. A New York Times op-ed piece by David Cole claimed that several high ranking members of the U.S. Republican party have also violated the material support law, or at least the Supreme Court's broad interpretation of it (Cole, 2011). Speaking in Paris, several well known figures, including New York Mayor Rudolph Giuliani, former

Attorney General Michael Mukasey, and Tom Ridge, the secretary of homeland security, voiced their support for Iranian opposition group Mujahedeen Khalq. The Republicans spoke to "a forum of cheering Iranians" when they criticised President Obama's decision to place on Mujahedeen Khalq on the list of designated foreign terrorist organisations (ibid).

According to Cole, to even question the logic of placing them on the official terrorist list can

Extradition, Human Rights, and the War on Terrorism be interpretated as a federal crime. Once again, the standard is not applied universally.

Rather, it's an extremely political category.

The so-called 'fast track' extradition makes the above considerations far less likely to be addressed. This matter will be addressed in detail in Chapter 7. But first, attention will be given to what happens to many who have been accused of violating this law. The next chapter examines solitary confinement in U.S. prisons.

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Chapter 5: Solitary Confinement in the U.S. Prison System

5.1 - Extreme Isolation & Its Effects

Definitions may vary on what constitutes extreme isolation. For the purposes of this writing, the author would like to make clear that this definition refers to non-voluntary isolation. A few days of solitude is often enjoyable and healthy, though the person is in complete control and able to return to their homes and families at any time. They also have the ability to move freely and control their own actions.

Within the prison system, isolated persons do not have these luxuries. There is also a difference between disciplinary and administrative segregation of prisoners. Disciplinary segregation is often a temporary measure imposed as punishment for breaking prison rules, such as having contraband materials or talking back to an officer. Isolation for administrative reasons is supposed to be reserved for the 'worst of the worst' offenders, who, it is feared, can be a threat to the safety of other prisoners, staff, and the outside world, through their ability to communicate with others. The primary purpose is not rehabilitation or punishment, but maintaining the order of the prison system (Shalev, 2009). This kind of isolation will be the focus of this chapter.

Administrative isolation practices can take many similar forms. Specials

Administrative Measures (SAMs) are imposed by the courts, sometimes in pre-trial stages, for those considered to be the most dangerous (Hedges, 2009). In Supermaximum Security

Facilities (Supermax), the conditions are administrated by the prison staff, though inmates under SAMs are often among them (Shalev, 2009). Supermax facilities, as well as other U.S. prisons may also have SHU's (Security Housing Units or Special Handling Units), cells which completely isolate prisoners from all contact (ibid).

Although there are some minor differences between the definitions and by facilities, this research will examine the general conditions that apply to each of these institutions. This

Extradition, Human Rights, and the War on Terrorism generally involves complete isolation for 22 to 23 hours a day, with the remaining time used for exercise in another isolated cell. Prisoners are not allowed to eat meals, pray, or have any other interaction with fellow inmates. Cells are windowless and under 24 hour surveillance including toilets and showers. Family visits are extremely limited and heavily monitored. All news and correspondence is delayed and censored. Cavity searches are also routinely performed although the prisoners have not been allowed to leave the cell (Hentoff,

2008).

Studies on the effects of extreme isolation have been numerous. London School of

Economics professor, Dr. Sharon Shalev, has reviewed contemporary studies of these effects, finding cases across two categories of health effects, including the following:

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Physiological & Psychological Effects of Extreme Isolation Physiological Effects Gastrointestinal and cardiovascular problems Migraine headaches Fatigue Heart palpitations Excessive sweating Insomnia Back and joint pains Deterioration of eyesight Excessive weight loss Lethargy and weakness Shaking Aggravation of pre-existing conditions Psychological Effects Anxiety -Irritability -Anxiousness -Fear of impending death -Panic attacks Depression -Emotional 'flatness' -Mood swings -Hopelessness -Social withdrawal -Apathy Anger -Hostility -Poor impulse control -Outbursts of physical and verbal violence -Unprovoked anger Cognitive disturbances -Shortened attention span -Poor concentration -Poor memory -Confusion -Disorientation Perceptual distortions -Hypersensitivity to noises and smells -Distortions in space and time -Depersonalisation -Hallucinations affecting all five senses Paranoia and Psychosis -Violent or vengeful thoughts -Psychotic depression -Schizophrenia Self-harm and Suicide (adapted from: Shalev, 2008, p. 15-17)

Extradition, Human Rights, and the War on Terrorism

Of these, the psychological effects appear to be worse and much more widespread, with the vast majority of isolated prisoners experiencing some of them, often causing permanent mental damage (Shalev, 2008). On the basis of these kinds of findings, the

International Psychological Trauma Symposium issued The Istanbul Statement on the Use and Effects of Solitary Confinement with the intent of urging the international community to drop these practices (Smith, 2008). International bodies ranging from the World Health

Organisation, the UN, and the Council of Europe, have also urged that such measures should be a last resort and for as short a time as possible (Shalev, 2008).

In the United States, these practices have mostly been the result of budget restrictions and what are often considered to be administrative needs by the prison staff.

Amy Fettig, head of the National Prisons Project of the American Civil Liberties Union

(ACLU) explains how their focus has traditionally been on reforms to state prisons.

According to Fettig, the federal system, was until recently, considered to be the better of the two systems. The National Prison Project has now started to focus on the federal system as well, noting changes in policies within the last decade, largely as a result of budget cuts.

With less support to control the prison population, facilities have increased the use of segregation to combat violence (interview with Amy Fettig). This combined with the increasing willingness of the courts to impose SAMs has seen a significant increase in the number of isolation cases nationwide.

The U.S. Commission on Safety and Abuse in America's Prisons reported that there was a severe shortage of medical staff for prisoners in extreme isolation (Gibbons &

Katzenbach, 2006). Amy Fettig confirms that in both the state and federal systems, there isn't enough staff to perform the kinds of checks that are needed. Citing a Congressional hearing with the former head of the Bureau of Prisons, Harley Lappin, Fettig revealed that for the mentally ill in prisons, there is not even enough staff for one clinical visit a year.

Furthermore, because most of the staff within the system are in the same facility, many

Kevin Warne checkups are done through telecommunications, such as video conferencing as opposed to personal visits from medical personnel (interview with Amy Fettig).

The Commission also revealed that some states allow doctors who have been barred from general practice to obtain special licenses to work only within prisons, so the quality of the health care may often be questionable. This is especially disturbing considering the fact that there are roughly three times as many mentally ill people in American prisons as there are in mental institutes. The numbers are as many as 400,000 or 24% of the female and

16% of the male prison population. Furthermore, the Commission cited studies of three state systems that found no evidence of violence actually decreasing as a result of these kinds of policies (Gibbons & Katzenbach, 2006).

In order to evaluate the possibilities for reform, we should begin to ask how conditions got to this point in the American prison system. From there, we can review relevant cases as well as the difficulties and potentials for meaningful change.

5.2 - The History of Solitary Confinement in the United States

The use of solitary confinement has a long and varied history in the United States.

The idea was introduced by the Quakers as a way for inmates to reflect silently on their crimes and seek penance for their sins. The goal was not punishment or intimidation, but rehabilitation. However, the adverse affects on the prisoners' mental stability and physical health were quickly realised and the practice abandoned (Shalev, 2009). The American

Quakers ceased to advocate its use and by 1890, the Supreme Court noted that "a considerable number of prisoners" became "violently insane" under these practices

(Franklin).

The re-emergence of regular solitary confinement practices in U.S. prisons began in the early 1980's. The infamous prisoner, Thomas 'Terrible Tom' Silverstein had been arrested for theft in 1977 and he quickly found himself sinking into the depths of the prison

Extradition, Human Rights, and the War on Terrorism system. Silverstein was a former head of the Aryan Brotherhood prison gang and exhibited anti-social tendencies from a young age. In prison, he adopted the philosophy of 'kill or be killed'. He was convicted of several murders inside prison, the first of which he was later cleared of. Each conviction found Silverstein joining worse offenders in prison, which he claims put him in increasing danger of retaliation from prison gangs, feeding his violent ideology (Silverstein, 2011).

Silverstein's crimes reached their peak when, on 22 October 1983, he killed a prison guard, Officer Merle E. Clutts. From there, he was put into solitary confinement where he remains to this day. For nearly thirty years, he has been transferred from facility to facility, but always isolated from fellow prisoners and with limited contact with the outside world. The cells he has been kept in have in some cases been just large enough to fit a human being, and have even been under construction during his stay. He has written about having to cover himself with a sheet to avoid flying sparks, describing the experience as "terrifying" and "like being buried alive" (ibid).

Silverstein has been called 'The Most Isolated Man in America' having been in solitary confinement for nearly thirty years, with only a brief reprieve in 1987 during a prison riot where he saw the night sky for the first time in over a decade. Silverstein is currently preparing to sue the Federal Bureau of Prisons for the extended use of these practices

(Casella & Ridgeway, 2011a).

The conditions of Silverstein's confinement helped create the basis for both SAMs and Supermax prison facilities, using extreme isolation to control the prison population. The rationale has been that the 'worst of the worst' may be capable of coordinating violence from within prisons, through the use of coded language unknown to the prison staff. Such violence may be against fellow prisoners, prison staff, or even the general public. Such was the case when Luis Felipe, then the head of New York gang the Latin Kings, was able to send messages to his fellow gang members outside the prison leading to the murders of rival

Kevin Warne gang members (Richardson, 2009). Felipe was then placed under SAMs to severely limit and monitor his communications to prevent future incidents. SAMs quickly expanded to other prominent gang members with a demonstrated 'proclivity for violence'.

A fundamental shift took place after the 9/11 terrorist attacks. The use of SAMs rapidly expanded. Whereas the majority of inmates under these conditions had previously been predominantly gang members, the vast majority today are South Asian Muslims with alleged ties to terrorist organisations (Hedges, 2011). The use of SAMs pre-trial has also expanded, owing partly to the use of classified evidence and slow moving court proceedings, meaning that many held in isolation for months or years without being convicted of any crime

(ibid). This runs counter to several guarantees offered by the U.S. Constitution, including the right to a speedy trial and the promise that the accused will be considered 'innocent until proven guilty'. With no end in sight for the War on Terrorism, there is a fear among human rights activists that this trend may continue and be abused without proper oversight.

5.3 - What is 'good behaviour' under SAMs?

When considering the history of solitary confinement in America, it is interesting to note that Thomas Silverstein has, arguably, fit the early Quaker ideal in some respects better than the Quakers themselves may have anticipated. Silverstein began a correspondence degree in Christianity while in isolation, later becoming interested in Buddhism and its philosophies of nonviolence and detachment from want. He has since accepted responsibility for his crimes, claiming to feel regret for leaving the officer's children without a father, and acknowledging that he can never again live outside of a prison system. He nonetheless has often requested transfer back into the general prison population

(Silverstein, 2011). Many have been strongly against such a move however, insisting that his decades-long insistence of his own reforms cannot be trusted when weighed against his violent past.

Extradition, Human Rights, and the War on Terrorism

Silverstein's crimes should not be trivialised, nor should such claims be taken lightly.

However, in this case, there may be credible evidence to help determine what his character has become. In 1987, Silverstein was being held in USP Atlanta when Cuban inmates there started a riot and took control of the facility for a week. According to his declaration, he was released by the rioting prisoners and able to go into the prison yard for the first time since

Officer Clutts's murder. If his claims are to be believed, he did not participate in the rioting and mostly kept a low profile. He also attended to the needs of the captive prison staff, giving special attention to the ones with health care needs. The authorities, negotiating with the

Cuban rioters, requested that Silverstein be handed over as a sign of good faith, which was quickly granted (ibid). If his claims of altruism towards the guards were to be investigated and found to be legitimate, the question should be raised whether this should actually improve his conditions. And if not, what can actually be done to get prisoners out of extreme isolation?

Prisoners under SAMs or Supermax conditions are commonly encouraged to give information to authorities. For many, this means informing prison staff about who is a gang member (ibid). For many prisoners who have the information to give, this becomes a difficult problem. Having no other alternatives, this is their only real way out of solitary confinement.

However, ratting out fellow prisoners puts them at a much greater risk among the general prison population for acting as an informant. Those without such information find themselves with nothing of value to offer. From those who do not speak, it may be impossible to tell which category they belong to. In the case of Thomas Silverstein, it is unlikely that he still has relevant information after nearly three decades in isolation.

In the case of terrorism-related charges, the chances for improved conditions appear to be similar. However, instead of gathering information on fellow prisoners, the information is about terror suspects who have yet to be incarcerated. This has been demonstrated by

Mohammad Junaid Babar, the informant whose confessions led to the arrest of Hashmi as well as people connected to the 7/7 bombings and plans for further attacks in London and

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Canada that were never implemented. Referring to his "extraordinary" cooperation, a federal judge declared his time served after five years of his original seventy year sentence (Malik,

2011a). As Babar had admitted to helping train the 7/7 bombers and has apparently never abandoned his violent ideologies, many were outraged by this level of leniency (Malik,

2011b). But another troubling question may be, if what, like those with no knowledge of gang connections, a terrorism-related prisoner simply does not have any information to offer? It could then be that someone convicted of a lesser crime has far less to bargain with than someone who actively helped with plots which killed many innocent people.

Aside from information sharing, facilities often lack methods for inmates to improve their conditions through demonstrated good behaviour. The opposite may in fact be more accurate, as facilities often revoke the limited privileges for negative behaviour. A known example in Hashmi's case came when he was seen shadowboxing in his cell. Prison staff claimed that he was practicing material arts moves that he would have presumably used against them if given the chance. They also alleged that when told to stop, he become hostile towards them. Hashmi himself insists that he was merely exercising and did not talk back to the guards. Regardless, this transgression earned him two months without visits from his immediate family, one of the very few, and most important, privileges he had

(Fisher, 2010).

Unfortunately, this is all too common in such cases. Punishment outweighs rewards.

This can often lead to more antisocial behaviour as prisoners begin to feel as though they have nothing left to lose and no possibility for anything better. Some experts also feel that without these kinds of provisions and over a long period of time, prisoners may emerge more dangerous and antisocial than when they came in (interview with Amy Fettig).

5.4 - Possibilities for Reform

Extradition, Human Rights, and the War on Terrorism

On 1 July 2011, a remarkable action took place within one of the most notorious

Supermax prison facilities in the United States, the Pelican Bay State Prison in Northern

California, modelled after ADX Florence. The facility utilised extreme isolation in the form of

SHUs, which the staff claimed as being for administrative, rather than disciplinary, reasons.

Much like prisoners under SAMs or in other Supermaxes, there are strict punishments for disciplinary infractions within the SHUs, but limited opportunities to get out of them.

Having few realistic options and no legal recourses, the prisoners managed to coordinate a mass hunger strike from within the SHUs (Duguma, 2011). It is not known how they were able to accomplish this given their limited communication abilities and lack of physical contact with other inmates. According to prison officials, the instances of hunger striking were limited to a handful of prisoners, but reports from the press and solidarity campaigns seem to contradict this, claiming that the first day saw all SHU residents (over

1100 inmates) participate, with hundreds from the general prison population joining the next day and expanding to other prisons in California and the American Southwest in the following weeks. Solidarity campaigns from activists also formed as far away as Canada and

New York City (Democracy Now, 2011a).

The striking prisoners had a list of demands for the California Department of

Corrections and Rehabilitation (CDCR), including the following:

1. Ending group punishment for individual crimes.

2. Abolishing the debriefing policies, including coercion of prisoners to give

information about gang membership.

3. Complying with the US Commission on Safety and Abuse in America's Prisons

2006 Recommendations Regarding an End to Long-Term Solitary Confinement,

including limitations of time spent in SHUs and methods to improve one's

conditions.

4. Providing adequate and nutritious food.

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5. Expanding and providing constructive programming and privileges for indefinite

SHU status inmates, including more privileges for good behaviour.

(List adapted from Prisoner Hunger Strike Solidarity, 2011)

Should these demands prove successful in Pelican Bay, they could set an important precedent for the federal prison system in facilities like ADX Florence and MCC. This effort is on the extreme end of the spectrum, but there are more modest and equally important efforts being undertaken by organisations like the ACLU. Through their legal actions representing different clients, they have been able to work with prison facilities to encourage reforms.

They argue that the use of solitary confinement is used far too often as an excuse for poor handling within the prison system. The National Prisons Project examined the conditions of

Mississippi State Penitentiary where conditions were described as 'medieval'. Violence was reaching alarming levels among the prisoners, with weapons made and guns smuggled in.

Inmates were quickly subject to isolation indiscriminately. The ACLU found that even mentally ill patients were placed in isolation and that few opportunities were in place to help prisoners get out of these conditions. Striking a deal with the Mississippi Department of

Corrections (MDOC), they began to address these concerns, immediately transferring out the mentally ill inmates, providing more social programs, and incentives to improve conditions. The number of prisoners in Supermax there dropped from a thousand inmates to

150 just by introducing a classification system to evaluate each individual case. More recently, the facility was closed. The National Prison Project hopes to do more such programs across the United States to improve not only prisoners rights, but the general security which has arguably not be aided by these practices (interview with Amy Fettig).

Extreme measures by the prison populations and the work of NGO's are important steps towards making meaningful reform, but they are not the only ones available. Thomas

Silverstein's declaration will soon become the basis for his lawsuit against the Federal

Extradition, Human Rights, and the War on Terrorism

Bureau of Prisons, potentially raising general awareness of these conditions. Additionally, pressure from individuals on the U.S. government could make significant changes, if these facts became better known in the United States. Groups like Amnesty International and

Psychologists for Social Responsibility have attempted to use the Bradley Manning case to shed like on a greater problem (interview with Stephen Soldz). Others disagree, feeling that

Manning's situation was different. His conditions could be talked about more openly and because he was not kept at MCC, ADX Florence, Pelican Bay, or any of the other notorious institutions, the attention those places received was very limited. Amnesty International has, however, recently issued a report on the conditions at MCC, considered by activists to be a small victory after years of hard work (interview with Jeanne Theoharis).

There is still another potential venue to shed light on these issues. Extradition hearings, should, if done appropriately, bring attention to any controversial human rights records between nations. This matter will be examined in the following chapter.

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Chapter 6: Extradition Law & Human Rights

6.1 - 'Fast Track' Extradition

On 2 July 2011, Wikileaks editor-in-chief, Julian Assange, spoke in London with

Slovenian philosopher, Slavoj Žizek, and American journalist, Amy Goodman, to a sold out audience of thousands (Democracy Now, 2011b). Goodman asked Assange about his upcoming extradition trial, to be represented by English barrister Gareth Peirce, for alleged sexual misconduct in Sweden. Though he did not address the controversial charges against him, he spoke at length about extradition more generally. He argued that extradition trials did more than simply protecting the defendant or improving cooperation between nations in security and international law. When argued well, they should also have the effect of providing a safeguard for human rights. By the nature of the international relation between countries, a successful defence attorney should be looking at the conditions of the receiving nation and act as a kind of international monitor for prison conditions, sound legal practice, and due process.

The response to 9/11 in the West was to implement more 'fast track' extradition agreements for security purposes. Assange was speaking about the European Arrest

Warrant (EAW) which went into effect between 2003 and 2005 and now covers all member states of the EU. Under the agreement, extradition must take place within 90 days. Critics claim that the system has been subject to abuse, resulting in extradition for even minor and petty offences, such as £20 of petrol (Gilligan, 2010) to "theft of a chicken" (The Economist,

2009). From an international human rights perspective, this brings up a number of problems, including differing justice systems and legal interpretations of, for example, free speech laws.

Limiting the window before extradition is required to take place also limits the potential safeguards against abuse in the receiving state. Between EU nations, there are safeguards

Extradition, Human Rights, and the War on Terrorism in the form of the ECHR, though even that is not a guarantee of respect of human rights protections in all cases.

More complicated is the passing of the Extradition Act 2003 in the UK which implemented the US-UK Extradition Treaty of the same year. Another response to the post-

9/11 heightened global security, the treaty has always been controversial. Opponents in the

UK claim that the treaty is too one sided. For security reasons, America claims an exception to sharing of full evidence against the accused before extradition, while the U.S. Congress has not allowed for reciprocal rights for the UK (Binyon, 2006). As another form of 'fast track' extradition treaty, the potential for outside monitoring is again weakened. Furthermore, the

United States is not bound by the ECHR. Although they are bound by a number of international conventions through the UN, they lack the kind of pressure from enforcement mechanisms like the Strasbourg Court.

The United Kingdom, as well as all other EU member states, has responsibilities as the sending nations in extraditions requests, as agreed through the ECHR (see Appendix C).

The Court's decisions on such matters have varied since its inception and the line is not clearly drawn on how far these responsibilities extend. Security claims and the rights of states to sovereignty have further complicated the issue. However, by examining international law and some of the landmark cases on torture and extradition, it is possible to set the established boundaries for what might and might not be considered acceptable under

European and international law.

6.2 - Interpreting Torture in International Law

A number of international human rights documents have confirmed the commitment not to torture. Article 5 of the Universal Declaration of Human Rights (UDHR) states that

"[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." Article 7 of the International Covenant of Civil & Politics Rights (ICCPR)

Kevin Warne repeats this definition, adding that "no one shall be subjected without his free consent to medical or scientific experimentation." Article 3 of the ECHR has similar language to the

UDHR. The American Convention on Human Rights (ACHR), which the U.S. has signed but not ratified, mirrors the language of the UDHR in Article 2, also adding that "[a]ll persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person."

More significant however is the UN Convention Against Torture which seeks to define torture in its first article:

‘For the purposes of this Convention, the term "torture" means 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 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.’

As demonstrated through Dr. Shalev's research in the previous chapter, there is substantial evidence that long term solitary confinement can results in a host of both physical and mental problems, including long term damage to the inmate. The limited avenues to get out of extreme isolation often include confessing or giving information to lower a sentence and may also be considered a form of punishment or coercion. The shift in demographics of the SAMs prison population could also suggest that the policy has a discriminatory nature. It is also clear that such conditions are instituted or allowed by state representatives, acting in its official capacity. Article 1 concludes by stating such suffering is not included in the definition if it is "only from, inherent in or incidental to lawful sanctions" which could be said to give nations a wide margin of appreciation. However, as all the criteria seem to fit in these cases, special attention should be taken in examining them.

The Convention continues in Article 3 (1) that "[n]o State Party shall… extradite a person to another State where there substantial grounds for believing that he would be in

Extradition, Human Rights, and the War on Terrorism danger of being subjected to torture." Article 3 (2) continues by necessity of "competent authorities [to] take into account all relevant considerations including, where applicable, the existence… of a consistent pattern of gross, flagrant or mass violations of human rights." (for additional relevant international law articles, see Appendix C) The UK is preparing for an inquiry into the treatment of detainees abroad (discussed below), but it is clear that such examinations are coming too late for some who have already been extradited.

Justification for the United Kingdom's extradition treaty with the United States may be based in part on America's ratification of the UN Convention Against Torture. The UK can then expect her ally to uphold the same values with regard to prison conditions. However, the U.S. has ratified only with a controversial reservation. The interpretation of torture, they declare, will be understood to fall within the Eight Amendment to the U.S. Constitution, forbidding "cruel and unusual punishment." Instead of incorporating the Convention into domestic law, this reservation attempts to equate the definitions so that no additional modifications are necessary within the American legal system. Effectively, this gives interpretation within the U.S. courts superiority over international legal instruments. Further to this, the U.S. has also not recognised the competence of the UN Committee Against

Torture. Only a small handful of other states have made similar reservations, prompting members of the international community to object on the grounds that these reservations run counter to the scope and purpose of the Convention.

The question is whether the Eighth Amendment is truly equatable with the

Convention Against Torture, or whether the objections have a valid basis. There are signs of positive commitments to ban torture. Three decades ago the U.S. courts declared torture to be abhorrent, claiming that "the torturer has become like the pirate and the slave trader before him, hostis humani generis, an enemy of all mankind." (Filartiga v. Peña-Irala, 1980)

The problem, however, is that torture was not clearly defined so it is not entirely clear what such rulings prohibit. It has been demonstrated in the previous chapter that the rising trend of solitary confinement in the American prison system can lead to long term, and sometimes

Kevin Warne permanent, effects on individuals. By reducing the definition of the Convention to concise, yet vague concept of "cruel and unusual punishment", there is arguably lesser protection for individuals and greater potential for abuse from the state.

These debates reached a public audience during the Bush years. Public intellectuals unashamedly discussed, both in print and on television, the benefits of using torture to acquired information (CNN, 2011). The Bush administration itself took a more careful stance not to violate its own agreements, by arguing that the "advanced interrogation techniques" did not actually constitute torture by its legal definition (Lithwick, 2010). The most famous of these techniques was waterboarding, a practice now banned under the Obama administration, reaffirming his claims that the the U.S. did not resort to torture. The Special

Administrative Measures however were renewed under Obama (Theoharis, 2009), as was the USA PATRIOT Act (Mascaro, 2011). The rejection of torture by a more liberal head of state is still subject to the limitations of its own definition.

It should be the duty of the international community to scrutinise and examine such definitions before allowing extradition to take place. The ECtHR has questioned extradition plans where the rights of the individual being sent could have been violated. In some cases, they have found that European states have obligations not to extradite to torture.

6.3 - European Court of Human Rights Rulings

Every member state of the European Union is required to ratify the European

Convention on Human Rights, granting some level of authority to the European Court of

Human Rights in Strasbourg on related issues. Under the Convention, states are required to refrain from torture, inhuman or degrading treatment, and capital punishment. They are also required to ensure that their actions do not subject people to these conditions in other states, if it can be reasonably predicted. The exact interpretation of these limitations has been subject to change since the Court's creation. Specific related cases will be examined below.

Extradition, Human Rights, and the War on Terrorism

In 1997, in the case of D v the United Kingdom, the Strasbourg Court found that a criminal to be deported to his home country of St. Kitts, was in the terminal stages of AIDS and receiving treatment in the UK prisons. It was decided that since his home country did not have the same facilities for treatment, deportation would have meant an abrupt stop to his treatment and that such neglect by the British government would constitute inhuman treatment. Deportation was not permitted and the prisoner remained in a British jail (D v

United Kingdom, 2007). The case was revisited a decade later in N v the United Kingdom.

The defendant argued for very similar treats. However the court argued that D was an exceptional case due to the severity of his illness and deportation went ahead. Allowing all ill prisoners of other nationalities to stay would, it was thought, be an unrealistic burden on the state (N v United Kingdom, 2008). Nevertheless, D's case illustrates the level of concern that states are expected to consider when evaluating these cases. Regardless of the crime, the well being of the prisoner must always be considered.

In the case of Saadi v Italy, a Tunisian national suspected of international terrorism and arrested in Italy, was to be deported to Tunisia. It was learned that the Tunisian courts had also tried him in absentia and found him guilty. Although Saadi would have been able to appeal the decision, his conviction may have meant that he would be tortured in the Tunisian prisons. The Strasbourg Court found that deportation could not be permitted, despite his conviction in two nations of terrorist activities (Saadi v Italy, 2008). The international community, and the EU in particular, has in recent decades moved closer to emphasising the needs of human rights. These cases provide the kinds of tests to see the limits of those protections.

Such decisions have come a long way from early rulings by the court, including the case of Ireland v The United Kingdom (1978). The court ruled that the so-called 'Five

Techniques' (wall-standing, hooding, subjection to noise, deprivation of sleep, and deprivation of food and drink) did not constitute torture, though they were still a violation of the ECHR as inhuman and degrading treatment. The court was more conservative in these

Kevin Warne early stages, but may very well have some to a different decision had this case been tried today when protections against torture are better protected. This case also illustrated the importance of powerful nations, like the UK, to refrain from using torture practices.

6.4 - MI6 & the Gibson inquiry

On 28 October 2010, in an unprecedented move, the head of MI6 in the United

Kingdom, Sir John Sawers, appeared publicly to give a press conference. In that conference, he affirmed the UK's commitment to see that torture is not practiced. He stated, "Torture is illegal and abhorrent under any circumstance, and we have nothing whatsoever to do with it.

If we know or believe action by us will lead to torture taking place, we're required by UK and international law to avoid that action. And we do, even though that allows terrorist activity to go ahead." (The Guardian, 2011)

He also stated that much of the security measures in the UK come from "hugely constructive" intelligence partnerships with services across the world, stressing that "the

United States is an especially powerful contributor to UK security." Sawers went on to explain that the agency's partnerships cannot just be with "friendly democracies" if their work is to be done effectively. He acknowledged that they "also have a duty to do what [they] can to ensure that a partner service will respect human rights" with the caveat that this is a complicated balance. "[I]f we hold back, and don't pass that intelligence, out of concern that a suspected terrorist may be badly treated, innocent lives may be lost that we could have saved."

Sawers then referred to the Gibson Inquiry, commissioned by the prime minister, to examine detention practices abroad. Of particular interest to the inquiry was the treatment of

British citizens in U.S.-run off site facilities such as Guantanamo Bay (Blitz & Barke, 2010).

The inquiry is intended to examine the balance between human rights and security, especially in the War on Terrorism and within its intelligence partnerships. The inquiry was

Extradition, Human Rights, and the War on Terrorism set to involve the input from prominent human rights lawyers and NGO's, including Amnesty

International, Human Rights Watch, and Reprieve, among others.

Recently, however, ten of the human rights groups involved, including the three mentioned above, announced their intention to boycott the inquiry referring to it as a

"whitewash" rather than an independent inquiry (BBC, 2011). The reasons that these groups have cited include a lack of transparency and creditability in the procedures. The level of secrecy, according to the organisations, does not guarantee that justice will be served. A spokesperson from Reprieve stated that "the terms of the inquiry have indeed meant it will be shrouded in secrecy." (ibid) Much of the evidence will be seen only by the judge leading the inquiry, Peter Gibson. It will be at the discretion of the British government to decide what intelligence is made public at the end of the proceedings.

The decision to boycott is controversial, with many human rights proponents concerned that without the participation of these groups, the findings will be far from complete and more likely to find in favour of the government's case that human rights abuses were not found, were minor, or were not likely to be reasonably avoided. However, a more transparent procedure is exactly the kind of inquiry that needs to take place in order to determine if the UK's commitments to human rights are being met. If the Gibson Inquiry does not prove to be an adequate avenue for transparency and enforcement of international law, then the judgments of the ECtHR might be the best hope for achieving human rights protections without sacrificing security.

Kevin Warne

Chapter 7: The United States of America v Syed Hashmi

The previous three chapters outlined some of the major policy shifts since the War on

Terrorism began and argued that they may have adverse effects on human rights protections. This chapter will take these ideas and apply them to the case introduced in

Chapter 2, The United States of America v Syed Hashmi. The following sections will seek to answer questions based on the topics addressed in the previous chapters and how they affected Hashmi's case. We can use these details to provide valuable insight into future cases.

7.1 - Material Support for Designated Terrorist Organisations

Hashmi was accused of four counts, including two counts for providing material support and two for conspiring to provide material support for terrorism (Theoharis, 2011).

The charges together carried a potential maximum sentence of 70 years in prison. With his plea agreement, this was lowered to one conspiracy count and 15 years in prison (Chung,

2010). Had his actions taken place before the passing of the USA PATRIOT Act, Hashmi might have been spared since his actions took place in London, outside of the jurisdiction of the United States. Due to the timing of his arrest, so soon after the ratification of this act and the Extradition Act (to be discussed below), he was not so fortunate. Two questions therefore need to be asked. Did the prosecution correctly prove his guilt under this law? And if so, does this example justify the legitimacy of the law itself, or rather demonstrate it as an abuse of power or neglect for human rights?

7.1.1 - On 9 June 2010, Hashmi accepted a plea agreement, pleading guilty to one count of conspiracy to provide material support for a foreign terrorist organisation. The confession may have been made under duress after three years in solitary confinement and out of fear for his prospects of true justice. Some supporters were let down, while others attempted to

Extradition, Human Rights, and the War on Terrorism see the situation through his eyes. Due to the doubts present in this case, the author will review the prosecution's case to determine whether there was reasonable doubt that Hashmi was truly guilty.

According to the law, both under the Clinton era legislation and the revision under the

USA PATRIOT Act, acts of material support must be done or planned "knowingly" by the accused. Much of the government's evidence is still classified, so one can only speculate on this. The prosecution's case rested primarily on the testimony of Mohammad Junaid Babar, who stayed in Hashmi's London flat before meeting Al Qaeda leaders in Pakistan (NY Daily

News, 2010). However, as pointed out by Hashmi's defence team, elements of Babar's testimony actually contradict Hashmi's guilt. Babar claimed that he had to remain very careful around Hashmi and not reveal too many plans, because they were not sure if he could be trusted. When asked if Hashmi was part of any group or conspiracy, Babar replied,

"He wasn't part of the group. He was… very much an outsider" (The United States of

America v Syed Hashmi, 2007). This would seem to refute the claim that Hashmi was actually aware of Babar's actions and actively participating in them.

In reaction to Babar's release from prison after only five years, the Guardian began to raise questions about who he was. Citing the presiding judge's surprising statement that

Babar "began co-operating even before his arrest", they questioned whether Babar may have been working for the U.S. government for many years (Malik, 2011a). According to Dr.

Theoharis, if true, Hashmi's conviction would be null and void, as a conspiracy with a government agent acting in official capacity cannot be be grounds for a conviction. However, she states that the charge could be impossible to prove, so again, we can only speculate

(interview with Dr. Theoharis). It is possible however that Hashmi's arrest was politically motivated. Because Babar was able to provide such valuable information, leading to the conviction of people connected to the 7/7 bombings and other terrorist plots in London, as well as the U.S. and Canada, authorities may have been eager to act on as much intelligence as they could get from him, helping to lower his sentence.

Kevin Warne

7.1.2 - As has already been discussed above, the vagueness of the law against material support for terrorism has tremendous potential for abuse. As Dr. Theoharis has pointed out

"[r]ights do not require known innocence" (2011). Whether or not Hashmi was guilty of this violation, we can ask whether the law goes too far in assigning guilt. Hashmi was not a member of any designated terrorist organisations, nor did he have known associations with any members of them. What he was, however, was a very outspoken critic of American foreign and domestic policies. He engaged in debates, spoke publicly to fellow students or anyone who would listen, and even got the attention of Time magazine and CNN for publicly criticising the U.S. government (Theoharis, 2011). While we may or may not agree with his opinions, they are all protected by his rights to free expression. These opinions were used in the case against him to prove his intentions to aid an official enemy. It could be argued that in this regard, that the law was used to convict someone based on ideology in contradiction of his rights.

7.2 U.S. Prisons & Legal Systems

Hashmi accepted a government plea bargain after three years of delayed trials and detention under solitary confinement. At his sentencing, he received 15 years imprisonment for one count of conspiracy to provide material support for terrorism. In August 2011, he was transferred to ADX Florence and had his SAMs renewed indefinitely (Theoharis, 2011). He remains there today. This section will question whether Hashmi received his due process in the court system, as well as whether his punishment was necessary or proportionate to his crimes.

7.2.1 - It is arguable that Syed Fahad Hashmi did not receive proper due process under the law. By imposing Special Administrative Measures before the trial, Judge Preska was

Extradition, Human Rights, and the War on Terrorism effectively labelling him 'guilty until proven innocent', the exact opposite of what is guaranteed by the U.S. Constitution. This was despite the fact that he has no proven history of involvement in violent acts and no complaints about his conduct with other inmates while at Belmarsh prison in London or in his first five months at MCC before SAMs were applied

(Theoharis, 2011). Additionally, the use of an anonymous jury would have, it was feared, encouraged jurors to believe that not only was Hashmi guilty, but that his supporters also shared an allegedly violent ideology, despite that the fact that no proclivity for violence was ever found among the campaigns or organisations working in his defence. Nor in fact, was a record of violence ever demonstrated with Hashmi himself.

As mentioned above, many believe that these factors may have influenced Hashmi's decision to accept a guilty plea under duress. The prolonged use of solitary confinement as well as the classified evidence may have also provided an atmosphere of intimidation, whether or not intentional. Centuries ago, John Lilburne dared to speak out against what he perceived as self-incrimination, as he was not informed of the full accusations made against him. His protests helped form the basis of legal protections against self-incrimination in the

United States (Peirce, 2010a). Today, we can speculate on whether Hashmi may have been subject to the same thing. Despite his actual beliefs, he may have felt that this was the best offer he could hope for.

7.2.2 - If we give the courts the benefit of the doubt that, in fact, his intentions were to aid Al

Qaeda, his conditions, both before and after the sentencing, are still seen by human rights advocates as disproportionate and unnecessary punishment. Even if we accept his guilty plea as a legitimate confession, the prolonged use of solitary confinement outweighs the alleged crime, which amounts to playing a small role in helping a terrorist organisation obtain non-lethal materials, labeled as 'military gear' by U.S. authorities. If the classified evidence against Hashmi amounts to something worse, that evidence has yet to be made public.

Kevin Warne

The danger posed by Al Qaeda to the West is not to be underestimated, nor is assistance to their efforts. However, the well documented adverse effects of extreme isolation should also not be ignored. It has been argued that prolonged isolation can cause severe and permanent mental health problems. As has been mentioned above, there was no publicly documented reason to suspect that Hashmi would be a threat to fellow prisoners, guards, or the general population. One suggested reason why these conditions persist, relates to the conditions of gang members in Supermax prisons. Few opportunities are given for getting out of these conditions, except for giving information about other gang members.

As Mohammad Junaid Babar's case demonstrates, having valuable information to give can be a tremendous benefit to those under SAMs. As far as it is known, Hashmi has not given similar information. It may be that he is attempting to protect others who could be convicted on similar charges. Or it may be that he has little to no information to give, particularly if in fact, he was not knowingly involved with Babar's crime.

7.3 Extradition

After the passing of the US-UK Extradition Treaty of 2003, Hashmi was the first person to be successfully extradited from Great Britain. Before he was subject to solitary confinement and questionable court room practices, he was arrested in Heathrow airport on his way to Pakistan on 6 June 2006. After nearly a year in Belmarsh prison, he was sent to a federal prison in New York, the Manhattan Correctional Center (MCC). This section will examine whether Hashmi's extradition hearing had the proper oversight needed to provide international safeguards. And if not, whether the Extradition Act itself may in fact undermine such safeguards.

It is the author's belief that extradition should not have taken place in this instance.

The United Kingdom is bound by obligations under the ECHR. Article 3 prohibits torture and inhuman or degrading treatment. Though disputed, the consensus by expert health professionals is that prolonged solitary confinement causes very real mental health

Extradition, Human Rights, and the War on Terrorism problems. As there are numerous cases where these practices do not seem to be necessary for security, but are merely administrative practices, it should be concluded that the practice often amounts to inhuman or degrading treatment, if not torture. Article 6 of the ECHR requires respect for the rights of all citizens to fair trials, including presumption of innocence and to be tried within a reasonable time. As already discussed, the court did not appear to display a presumption of innocence in Hashmi's case. With three years worth of delays due to secrecy, the case could hardly be said to be within a reasonable time. The ECtHR has ruled in previous cases that deportation or extradition to these kinds of conditions cannot be permitted by member states, even in the case of suspected terrorism.

It is possible that United Kingdom may not have realised the changes taking place in the United States and how they could potentially affect extradited persons. As the case of

Babar Ahmad and Others v The United Kingdom is now taking a serious look at these issues, it could be that Hashmi's case simply had bad timing. However, this should not excuse responsibility for violations. In the years after the September 11th attacks, many new security legislations were passed quickly, including the Extradition Act 2003. Syed Fahad

Hashmi and other cases like his should remind us of the problems that can come without proper oversight and scrutiny before their implementation. The 'fast track' extradition agreements present much potential for human rights abuses. As it has been argued, the

Extradition Act 2003 is extremely one sided and requires limited evidence to be presented to the United Kingdom. Under those conditions, it is difficult in many cases for the extraditing country to oversee the legality of the laws and punishments, or apply much international pressure to change them. It is dangerous to assume that even the most democratic nations will always uphold their human rights responsibilities. Without the right protections, there is a danger that abuses will increase.

Past examples can provided much insight, which makes Hashmi's case an important one to study. It is from these lessons that we can begin to implement necessary changes in policy.

Kevin Warne

Chapter 8: Recommendations

8.1 - Revising the Material Support Law

It has been argued here that the law banning material support for designated terrorist organisations is dangerously vague and grants U.S. authorities too much power over a theoretically unrestricted global territory. The threat from Al Qaeda and other terrorist organisations is very real and should be taken seriously with the necessary tools. However, this should not compromise the basic protections of human rights as required by states under international law. Therefore, rather than abandoning the law, the author concludes that it should be revised to allow fewer abuses while not sacrificing security.

Such revision will be no easy task. The U.S. Supreme Court has already ruled in favour of upholding the law in Holder v The Humanitarian Law Project and it is unlikely to overturn that decision any time soon. Even given the opportunity, state secrecy will likely remain a major obstacle. The War on Terrorism has not been marked by great transparency, as world leaders claim that classified information is necessary to act effectively. While this may be true, it also allows for greater abuses by those same leaders. The way forward will have to come from various pressures, both from the international community and the

American people. While the information may be limited in some cases, educating people based on the information we do have can go a long way towards building those pressures.

The alternative is to risk the same mistakes that led to the Japanese internments in World

War II or the abuses toward the Irish by British authorities only a few decades ago. Public education on these issues shouldn't have to wait until the abuses stop as it did in those cases. They must be discussed now so that changes may be enacted.

Further research should also be done on similar cases, both before and after Hashmi, including suspects who did not face extradition. Additionally, further research should be considered regarding the level of discrimination that is alleged in such cases. It has been

Extradition, Human Rights, and the War on Terrorism said that authorities fighting the War on Terrorism often target, whether correctly or not,

Muslim men, particularly of South Asian origin, and makes suspect those who identify strongly with a religious ideology (Theoharis, 2011). It is beyond the scope of this writing to address these issues, though they are important factors worth studying.

8.2 - U.S. Prison Reforms

The consensus among health professionals and human rights activists is that prolonged solitary confinement is dangerous and needs to be considered only as an absolute last resort for security and for the shortest possible periods. This will require greater creativity in prison reform in the United States. The ACLU's National Prison Project may offer some important lessons for comparative justice, on both a federal and state level.

Additionally, the U.S. Commission on Safety and Abuse in America's Prisons 2006

Recommendations Regarding an End to Long-Term Solitary Confinement should be taken seriously and implemented wherever possible. Where solitary confinement is still used, medical staff must be allowed to do regular check-ups involving direct contact with the prisoners. Additionally prisoners need to have opportunities to improve their conditions through good behaviour, not simply confessions or information sharing.

As Thomas Silverstein's lawsuit against the Federal Bureau of Prisons approaches, it is this author's hope that lessons will be learned and steps taken to reform the system.

Cases like Hashmi's, as well as the actions of the inmates at Pelican Bay, should also teach us much. But the extensive research on solitary confinement itself should be enough to give us cause for alarm. Much like national security, security within the prison system must be taken seriously to avoid danger to prison staff and other prisoners. However, like national security, this should not come down to a false choice between safety or basic rights. New and creative ideas should help us find a balance between the two.

Kevin Warne

8.3 - Revision of the Extradition Act of 2003

Controversy has plagued the Extradition Act since it's ratification by the U.S.

Congress, mostly in the United Kingdom. Opponents have argued that the agreement grants too much power to one side without reciprocal provisions. However, as this writing has argued, the problem is not only the lack of balance, but that the extended guarantees are themselves a potential threat to human rights protections. If the ECtHR finds in favour of

Babar Ahmad against the use of extradition to the United States, then the United Kingdom should consider revisions to the Act. The revisions should not simply be to grant the same powers to the UK, as many would like to see, but rather to question whether the requests granted to the United States may be in contradiction to the UK's obligations under the

European Convention on Human Rights. If so, the concerns above involving the abuses by states of the laws and questionable practices within the prison system should factor heavily into such decisions.

If such revisions are found to be necessary, further research should be conducted on whether similar treaties should be revised to minimise the use of 'fast track' extradition. Once again, the purpose is never to sacrifice legitimate security needs, but rather to push states to find better measures which will uphold human rights to the greatest degree possible. The temptation is to either abandon such rights to a degree or to remove the international safeguards for greater control.

While there may be certain cases where such concessions can be acceptable, concerned citizens from any democratic nation should also remain vigilant and seek greater transparency from their governments. They should always be willing to ask whether the choice between security and rights is a false one and if there may not be better ways to move forward.

Extradition, Human Rights, and the War on Terrorism

Appendix A: Interview Guides

The following sets of questions formed the interview guides used for additional background research with experts in the related topics. Questions were open-ended and did always stick to the topics listed here, but rather allowed respondents to guide the conversation and explore other issues relevant to the research.

1. Amy Fettig of the National Prisons Project of the American Civil Liberties Union (ACLU) - Interview conducted on 12 May 2011 via telephone and recorded with permission

-Can you tell me a little about the stop solitary campaign? What areas do you focus on? Supermax prisons and Special Administrative Measures (SAM's)? ADX Florence and MCC 10th Floor South, special housing units (SHU)?

-How severe are the dangers for those held in solitary confinement? Would a prisoner held in solitary for an extended period of time be expected to defend themselves competently?

-In December of last year, the ACLU sent comments to the ECHR in regain to the case of Babar Ahmad and Others v. The United Kingdom. The court put a block on extradition to the United States out of concern that confinement in US supermax prisons might violate Article 3 of the European Convention on Human Rights. How did this case come to the attention of the ACLU?

-The case of Syed Fahad Hashmi had similar circumstances. He was housed for three years in MCC and now is held in ADX Florence. Was the ACLU aware of his case? During the extradition hearings or after? Were any similar statements made regarding his SAM's, before or after trials?

-Although torture is banned by international law and extreme solitary confinement is generally considered to be a form of torture, there is not a consensus on how to define "extreme" or even "torture", as the effects often vary by person. What is the ACLU's stance on this matter?

-Finally, many argue that solitary confinement is necessary, either for security or rehabilitation reasons. Tommy Silverstein is the most isolated man in the world since 1983 for killing a guard. How does the ACLU respond to this?

2. Dr. Stephen Soldz of Psychologists for Social Responsibility - Interview conducted on 11 June 2011 via telephone and recorded with permission

-Can you tell me a little about Psychologists for Social Responsibility? Who are you and what do you do?

-Are you involved with any campaigns or political issues? Bradley Manning's case?

Kevin Warne

-What is your organisation's position on the use of solitary confinement in US prisons? In particularly, long term isolation in Supermax, or prisoners held under Special Administrative Measures (SAMS)?

-My understanding is that there are not appropriate medical resources to evaluate all the prisoners under SAMS to monitor their mental health on a regular basis. Have you found this to be the case as well?

-Is there a danger in keeping people in extreme isolation for extended period pre- trial? Is there a danger that defendants will not be able to properly represent themselves?

-Proponents of solitary confinement sometimes say that is used primarily for the security of the prison staff. The reemergence of these policies are said to have taken place after inmates killed a guard. How would you respond? Are there alternatives to creating a safer prison environment?

-Has your organisation ever responded to any international cases, such as Babar Ahmad, whose extradition was delayed by the European Court of Human Rights out of concerns for the status of ADX Florence?

-Has your organisation ever responded to the case of Thomas Silverstein, who has spent nearly 30 years in solitary confinement?

3. Dr. Jeanne Theoharis of Educators for Civil Liberties and Syed Fahad Hashmi's former professor at Brooklyn College - Interview conducted on 13 July 2011 via telephone but not recorded due to technical difficulties

-How did you get involved with the case?

-Did you following his extradition proceedings? The case went very quickly, less than a year between his arrest and his actual extradition.

-Babar Ahmad's case is currently being debated by the European Court of Human Rights. Want makes Ahmad's case different from Fahad's?

-Should the fact that Fahad is an American affect the status of his extradition?

-If Fahad's extradition had happened today, could the result have been different?

-Mohammad Babar has information to give to lessen his sentence. SAMs seems to have few other ways to guarantee a way out, but many ways to punish inmates.

-Did the campaign perceive Hashmi's trial as fair considering the ruling of an anonymous jury?

-What changed to convince the judge to institution SAMs on Fahad? He had no complaints about his behaviour at MCC or Belmarsh.

-Was the use of SAMs pre-trial only after 9/11? Only for terrorism-related suspects?

Extradition, Human Rights, and the War on Terrorism

-What significance is it that three of his four charges were dropped in the plea agreement?

-What is being done now? Are you continuing to work on Fahad's conditions?

-Is there any hope of having SAMs removed?

Kevin Warne

Appendix B: Materials from the ‘Free Fahad’ Campaign

1. This comic form representation of the issues was designed by members of the 'Free Fahad' campaign, disturbed to people in New York City, and printed in some sympathetic local newspapers to raise awareness of the case and its implications.

Extradition, Human Rights, and the War on Terrorism

Kevin Warne

2. Below is the text of the petition generated by the 'Free Fahad' campaign for Syed Fahad Hashmi's due process, fair trial, and respect for his human rights. This petition was found at the following URL: http://freefahad.com/?page_id=22 The full list of signatories, including prominent academics and human rights activists can be found at the following URL: http://freefahad.com/signatories.doc

An Online Petition in support of Fahad:

The Following is the Statement of Concern that was first circulated amongst the Academic Community and now is available via the ipetition above to the public to lend their support: Syed Fahad Hashmi is a Muslim American citizen being held in a federal jail on two counts of providing material support –and two counts of making a contribution of goods or services — to Al Qaida. As his case goes to trial, we wish to register our concern about the conditions of his detention, constraints on his right to a fair trial, and the potential threat his case poses to the First Amendment rights of others.

The conditions of Hashmi’s detention are draconian. He is in solitary confinement and subject to a regime of severe deprivation. Under special administrative measures (SAMs) imposed by the Attorney General, his communication with other prisoners, attorneys, family, the media, and people outside the jail–as well as access to the news and other reading material– is either prohibited or highly restricted. He is subject to 24-hour electronic monitoring and 23-hour lockdown, has no access to fresh air, and must take his one hour of daily recreation– when it is given– inside a cage.

Hashmi’s right to a fair trial is in jeopardy. The prosecution may present new allegations against him up until the day before his trial begins. It may withhold evidence from him and/or his attorneys yet share that evidence with the judge. He may not communicate with the news media, either directly or through his attorneys. The conditions of his detention may impair his mental state and ability to testify on his own behalf.

The prosecution’s case against Hashmi, an activist within the Muslim community, threatens the First Amendment rights of others. While Hashmi’s political and religious beliefs, speech, and associations are constitutionally protected, the government may attempt to use them as evidence of his criminal intent. This could have a chilling effect on the First Amendment rights of others, particularly in activist and Muslim communities.

We call upon the United States government to review and alleviate the conditions of Hashmi’s detention, particularly his solitary confinement and the SAMs imposed upon him; to remove or revise the constraints on his right to a fair trial; and to guarantee that his actions–rather than his constitutionally protected statements, beliefs, and associations–constitute the basis of the government’s case against him, in court and in the public arena.

Extradition, Human Rights, and the War on Terrorism

Appendix C: International Law Documentation

Below is the text from relevant articles from international and domestic legal instruments related to the case of The United States of America v Syed Hashmi.

1. Universal Declaration of Human Rights (UDHR) Non-binding declaration drafted by the United Nations in 1948

Article 2: "Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non- self-governing or under any other limitation of sovereignty."

Article 5: "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."

Article 7: "All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination."

Article 8: "Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law."

Article 9: "No one shall be subjected to arbitrary arrest, detention or exile."

Article 10: "Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him."

Article 11(1): "Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence."

Article 18: "Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance."

Article 19: "Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers."

2. International Covenant on Civil & Political Rights (ICCPR) International treaty drafted by the United Nations in 1966, with 167 States Party, including the United States & United Kingdom

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Article 2 (1): "Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."

Article 4 (1): "In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin."

Article 4 (2): "No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision."

Article 7: "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation."

Article 9 (1): "Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law."

Article 9 (2): "Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him."

Article 9 (3): "Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement."

Article 9 (4): " Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful."

Article 10 (1): "All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person."

Article 10 (2a): "Accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons"

Article 10 (3): "The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation."

Article 14 (2): "Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law."

Article 14 (3): "In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: (a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him; (b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing; (c) To be tried without undue

Extradition, Human Rights, and the War on Terrorism delay; (d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it; (e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court; (g) Not to be compelled to testify against himself or to confess guilt."

Article 18 (1): "Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching."

Article 19 (1): "Everyone shall have the right to hold opinions without interference."

Article 19 (2): "Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice."

Article 19 (3): "3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:(a) For respect of the rights or reputations of others;(b) For the protection of national security or of public order (ordre public), or of public health or morals."

Article 26: "All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."

Reservations: United States (3): "That the United States considers itself bound by article 7 to the extent that `cruel, inhuman or degrading treatment or punishment' means the cruel and unusual treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States."

3. UN Convention Against Torture International treaty drafted by the United Nations in 1966, with 167 States Party, including the United States & United Kingdom

Article 1 (1): "For the purposes of this Convention, the term 'torture' means 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. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions."

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Article 2 (1): "Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction."

Article 2 (2): "No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture."

Article 2 (3): "An order from a superior officer or a public authority may not be invoked as a justification of torture."

Article 3 (1): "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."

Article 3 (2): "For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights."

Article 4 (1): "Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture. "

Article 8 (1): "The offences referred to in article 4 shall be deemed to be included as extraditable offences in any extradition treaty existing between States Parties. States Parties undertake to include such offences as extraditable offences in every extradition treaty to be concluded between them."

Article 8 (2): "If a State Party which makes extradition conditional on the existence of a treaty receives a request for extradition from another State Party with which it has no extradition treaty, it may consider this Convention as the legal basis for extradition in respect of such offences. Extradition shall be subject to the other conditions provided by the law of the requested State."

Article 8 (3): "States Parties which do not make extradition conditional on the existence of a treaty shall recognize such offences as extraditable offences between themselves subject to the conditions provided by the law of the requested State."

Article 11: "Each State Party shall keep under systematic review interrogation rules, instructions, methods and practices as well as arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment in any territory under its jurisdiction, with a view to preventing any cases of torture."

Article 12: "Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction."

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 I, 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..."

Extradition, Human Rights, and the War on Terrorism

4. European Convention on Human Rights International treaty drafted in 1950, to which all member states of the European Union are party

Article 3: "No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

Article 5 (1): "Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law… (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority of reasonable suspicion of having committed and offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so… (f) the lawful arrest or detention of a person to prevent his effecting an unauthorized entry into the country or of a person against whom action is being taken with a view to deportation or extradition."

Article 5 (2): "Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and the charge against him."

Article 5 (3): "Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this article shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial."

Article 5 (4): "Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."

Article 6 (1): "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgement shall be pronounced publicly by the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice."

Article 6 (2): "Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law."

Article 9 (1): "Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance."

Article 10 (1): "Everyone has the right to freedom of expression. this right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises."

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Article 10 (2): "The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."

Article 15 (1): "In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law."

Article 15 (2): "No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision."

Article 16: "Nothing in Articles 10, 11, and 14 shall be regarded as preventing the High Contracting Parties from imposing restrictions on the political activity of aliens."

5. American Convention on Human Rights (The Pact of San José) International treaty drafted in 1969 to which most states in North and South America are party. The United States has signed but not ratified this treaty.

Article 5 (1): "Every person has the right to have his physical, mental, and moral integrity respected."

Article 5 (2): "No one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment. All persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person."

Article 5 (3): "Punishment shall not be extended to any person other than the criminal."

Article 5 (4): "Accused persons shall, save in exceptional circumstances, be segregated from convicted persons, and shall be subject to separate treatment appropriate to their status as unconvicted persons."

Article 5 (6): "Punishments consisting of deprivation of liberty shall have as an essential aim the reform and social readaptation of the prisoners."

Article 8 (1): "Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature."

Article 8 (2): "Every person accused of a criminal offense has the right to be presumed innocent so long as his guilt has not been proven according to law. During the proceedings, every person is entitled, with full equality, to the following minimum guarantees: a. the right of the accused to be assisted without charge by atranslator or interpreter, if he does not understand or does not speak the language of the tribunal or court; b. prior notification in detail to the accused of the charges against him; c. adequate time and means for the preparation of his defense; d. the right of the accused to defend himself personally or

Extradition, Human Rights, and the War on Terrorism to be assisted by legal counsel of his own choosing, and to communicate freely and privately with his counsel; e. the inalienable right to be assisted by counsel provided by the state, paid or not as the domestic law provides, if the accused does not defend himself personally or engage his own counsel within the time period established by law; f. the right of the defense to examine witnesses present in the court and to obtain the appearance, as witnesses, of experts or other persons who may throw light on the facts; g. the right not to be compelled to be a witness against himself or to plead guilty; and h. the right to appeal the judgment to a higher court."

Article 8 (3): "A confession of guilt by the accused shall be valid only if it is made without coercion of any kind."

Article 8 (5): "Criminal proceedings shall be public, except insofar as may be necessary to protect the interests of justice."

Article 12 (1): "Everyone has the right to freedom of conscience and of religion. This right includes freedom to maintain or to change one's religion or beliefs, and freedom to profess or disseminate one's religion or beliefs, either individually or together with others, in public or in private."

Article 13 (1): "Everyone has the right to freedom of thought and expression. This right includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one's choice."

6. Antiterrorism and Effective Death Penalty Act of 1996 Domestic legislation drafted and approved by the U.S. Congress under the Clinton administration

Sec. 2339A. Providing material support to terrorists (a) Offense.--Whoever, within the United States, provides material support or resources or conceals or disguises the nature, location, source, or ownership of material support or resources, knowing or intending that they are to be used in preparation for, or in carrying out, a violation of section 32, 37, 81, 175, 351, 831, 842 (m) or (n), 844 (f) or (i), 956, 1114, 1116, 1203, 1361, 1362, 1363, 1366, 1751, 2155, 2156, 2280, 2281, 2332, 2332a, 2332b, or 2340A of this title or section 46502 of title 49, or in preparation for, or in carrying out, the concealment from the commission of any such violation, shall be fined under this title, imprisoned not more than 10 years, or both. (b) Definition.--In this section, the term `material support or resources' means currency or other financial securities, financial services, lodging, training, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel, transportation, and other physical assets, except medicine or religious materials.

7. USA PATRIOT Act Domestic legislation drafted and approved by the U.S. Congress in 2001, in response to the terrorist attacks of September 11th. The section quoted revises the Material Support law quoted above.

SEC. 805. MATERIAL SUPPORT FOR TERRORISM. (a) IN GENERAL- Section 2339A of title 18, United States Code, is amended--

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(1) in subsection (a)-- (A) by striking `, within the United States,'; (B) by inserting `229,' after `175,'; (C) by inserting `1993,' after `1992,'; (D) by inserting `, section 236 of the Atomic Energy Act of 1954 (42 U.S.C. 2284),' after òf this title'; (E) by inserting òr 60123(b)' after `46502'; and (F) by inserting at the end the following: À violation of this section may be prosecuted in any Federal judicial district in which the underlying offense was committed, or in any other Federal judicial district as provided by law.'; and (2) in subsection (b)-- (A) by striking òr other financial securities' and inserting òr monetary instruments or financial securities'; and (B) by inserting èxpert advice or assistance,' after `training,'. (b) TECHNICAL AMENDMENT- Section 1956(c)(7)(D) of title 18, United States Code, is amended by inserting òr 2339B' after `2339A'.

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