FOI Letter Template

Counter-Terrorism Department Foreign and Commonwealth Office King Charles Street London SW1A 2AH

Website: https://www.gov.uk

07 January 2014

Dear Mr Goss

FREEDOM OF INFORMATION ACT 2000 REQUEST REF: 0557-13

Thank you for your email of 11 June 2013 asking for information under the Freedom of Information Act (FOIA) pertaining to the extradition of Syed Talha Ahsan.

Included in this letter are responses to the 27 questions you raise. The questions and answers have been split into exemptions; those that fall under Freedom of Information and those that do not.

I thought you would find it useful if I set out the role Her Majesty’s Government (HMG) plays in extradition proceedings. This will explain why the Foreign and Commonwealth Office (FCO) is unable to answer and/or holds no information for some of the questions you pose.

The Home Office has the policy lead on implementing the government extradition policy and is responsible for managing extradition case work. The FCO acts as agent for the United Kingdom Government in legal proceedings in the European Court of Human Rights. Given the above, you may wish to consider re-directing some of your questions to the Home Office by email to [email protected].

Questions falling under the Freedom of Information Act (FOIA)

1) Was any contact made with United States representatives of any description to arrange the deportation of Syed Talha Ahsan before the appeal verdict of the European Court of Human Rights had been reached?

No information held. As the Home Office lead on extradition matters, you may wish to contact them to request further information.

2) If the answer to question 1) is yes, which department of the FCO and which personnel of that department had contact with which personnel of which US department?

No information held.

3) Can I have copies of any correspondence between the UK and USA concerning the extradition of Syed Talha Ahsan please?

The FCO holds some information in its capacity as agent for the United Kingdom Government before the European Court of Human Rights.

To the extent that that information was presented to the European Court of Human Rights as part of the case submitted by the United Kingdom Government, section 32 exempts information if it is held only by virtue of being contained in any document filed with, or otherwise placed in the custody of, a court for the purposes of proceedings in a particular cause or matter. I also refer you to the judgment handed down by the European Court of Human Rights: http://hudoc.echr.coe.int/sites/eng/Pages/search.aspx#{"fulltext":["abu%20hamza"],"itemid":["001 -118583"]}

To the extent that that information was not presented to the European Court of Human Rights as part of the case submitted by the United Kingdom Government, it is exempt from disclosure by virtue of section 27(1) (a). Section 27(1) (a) exempts information from disclosure if it would prejudice relations between the United Kingdom and another State. As information was provided by the United States Government for use in the Government’s case before the European Court of Human Rights, it would harm our relations with that country if we were to disclose information beyond what was provided for use openly in the European Court of Human Rights and it would cast doubt on our ability to protect information and undermine future co-operation on important matters such as counter terrorism and the prevention of crime.

The application of section 27(1) requires us to consider the public interest test arguments in favour of releasing and withholding information. While the information may be a matter of public interest, for the reasons given disclosure of this information would damage our relationship with the United States and we consider that the public interest in maintaining exemption under section 27(1) outweighs the public interest in disclosure of the information.

4) Was the FCO aware that two of the European judges, Lech Garlicki and Nicolas Bratza, who sat in judgement on Syed Talha Ahsan, had been at a 'closed-door' conference with US Supreme Court judges Stephen Breyer, Samuel Alito, Anthony Kennedy and Sonia Sotomayor in a conference called: 'Judicial Process and the Protection of Rights: the U.S. Supreme Court and the European Court of Human Rights'?

See answer to question 7.

5) Does the FCO have any documents relating to the revelation in question 4) and can I have copies please?

See answer to question 7.

6) Was the FCO aware that also at the conference mentioned in question 4) were "Derek Walton, who was representing the UK in Ahsan’s European Court case, and the vastly influential Harold Koh, who was serving as Obama’s appointed Legal Advisor to the State Department." (New Statesman 21 February 2013).

See answer to question 7.

7) Does the FCO have any documents relating to the revelation in question 6) and can I have copies please?

The FCO holds information showing that it was aware that:

a) this conference was taking place; b) it included a closed door session; and c) judges from the US Supreme Court and European Court of Human Rights, Mr Walton and Mr Koh would attend it.

However section 21 of the FOI Act exempts information which is obtainable by other means; i.e. in the public domain.

The timetable for the conference “Judicial Process and the Protection of Rights: The U.S. Supreme Court and the European Court of Human Rights”, which notes that Mr Walton was due to attend the conference is available at: http://www.law.gwu.edu/News/20112012events/Pages/JudicialProcess.aspx.

A press release from George Washington University, which notes that Mr Walton participated in the closed door sessions, is at: http://gwtoday.gwu.edu/historic-conversation.

The open session of the conference, including Mr Walton’s speech, are available on YouTube.

Information which is held by the FCO and which is not publically available on the subject you have raised (above) is exempt from disclosure by virtue of section 27(1) (a) and (b),and (2). Section 27(1) (a) and (b) exempts information from disclosure if it would prejudice relations between the United Kingdom and another State or between the United Kingdom and an international court. Section 27(2) exempts information if it was sent in confidence from another State or international court or body. As part of the conference was held closed-door with judges of an international court, a representative of the United States Government, and judges of the United States Supreme Court, it would damage our relations with the United States and with the European Court of Human Rights to disclose any information which was provided in confidence.

The application of section 27(1) and (2) requires us to consider the public interest test arguments in favour of releasing and withholding information. While the topic(s) of discussion at this closed door conference may be a matter of public interest, however, as these discussions were held in confidence, disclosure of this information would damage our relationship with the United States and European Court of Human Rights as it would cast doubt on our ability to protect information provided in confidence. It is for these reasons that we consider that the public interest in maintaining exemption under section 27(1) and (2) outweighs the public interest in disclosure of the information.

10) Can I have copies of any correspondence regarding evidence of the guilt of Syed Talha Ahsan held by the FCO please?

No information held. As the Home Office lead on extradition matters, you may wish to contact them to request further information.

13) Syed Talha Ahsan had before being extradited been held in UK prisons for six years without charge. Was the FCO notified of this?

See answer to question 10.

14) If yes, can I have copies of the notification(s) please?

See answer to question 10.

16) Can I have a copy of any document relating to an expeditious trial or any other documents in which the FCO has attempted to protect the human rights of Syed Talha Ahsan in this case please?

See answer to question 10.

17) US legal prosecution teams in a clear-cut and convincingly guilty case have deferred the trial-date from October 2013 to March 2014 increasing the suffering of Syed Talha Ahsan. Did they notify the FCO of this?

See answer to question 10.

18) Can I have a copy of any such notification please?

See answer to question 10.

20) Was the Foreign and Commonwealth Office aware that Talha Ahsan, a prize-winning poet, suffers from Asberger Syndrome?

The information requested falls within the definition of “sensitive personal data” under section 2 of the Data Protection Act 1998 as it relates to an individual’s medical condition. Section 40 FOIA provides that in most circumstances, personal information is exempt from disclosure because to do so would breach the data protection principles; in particular the fairness aspect of first data protection principle. Section 40(5) provides for a “ neither confirm nor deny” response where to confirm or deny that information was held would, in itself, be a statement about individuals, which in turn would be impermissible because to do so would breach a data protection principle. In this case we neither confirm nor deny whether we hold any information within the scope of your request, for those reasons.

21) Have any special provisions been made to cater for his illness?

See answer to question 20.

22) Can I see any correspondence relating to this please?

No information held.

23) Was the Foreign and Commonwealth Office aware that Gary McKinnon, another UK citizen, was spared extradition because he suffers from Asperger Syndrome?

See answer to questions 10.

25) Can you let me have any figures that show how many people extradited at US requests, including those rendered abroad during the Iraq War, over the last thirteen years, were Muslims, and how many were not?

See answer to question 10.

27) Can I see what correspondence took place regarding the type of penal institution Syed Talha Ahsan was to be held in?

The FCO holds some information in its capacity as agent for the United Kingdom Government before the European Court of Human Rights.

Questions not falling under the Freedom of Information Act

8) Presumably the FCO would have had to be absolutely certain that the case against Syed Talha Ahsan was a cast-iron copper-bottomed guilty case to send a UK citizen to a country which has a 'concentration camp' at Guantanamo Bay, Cuba, where only 13 people (out of 779) have ever been charged with a crime, and where 9 men have died while in captivity. Would you not agree that given these appalling figures the FCO would have to be certain that Syed Talha Ahsan was guilty before sending him to the United States?

This question is for the Secretary of State for the Home Department and the Courts to determine. Please see: https://www.gov.uk/extradition-processes-and-review and the judgment handed down by the European Court of Human Rights.

9) Considering our special relationship with the United States of America has the FCO seen all the evidence held by the US in the case of Syed Talha Ahsan?

As the Home Office lead on extradition matters, you may wish to contact them to request further information.

11) Is from the evidence that the FCO has seen there even the slightest chance that Syed Talha Ahsan might be innocent?

It is a matter for the US courts to determine whether the defendant is guilty of the charges brought against him.

12) If the answer is yes, on what grounds was Syed Talha Ahsan extradited considering the uneven extradition treaty we have with the United States?

See question 11.

15) Did the foreign office seek assurances in this clear-cut and convincingly-guilty case that Syed Talha Ahsan would be quickly brought to trial?

See answer to question 9.

19) Why did the Foreign and Commonwealth Office extradite Syed Talha Ahsan to be held in a maximum security prison 23 hours a day in a case in which the prosecution has not been able to gather enough evidence in over a decade to bring Syed Talha Ahsan swiftly to justice when his prison record in the UK shows that an ordinary prison would have been adequate and better for Syed Talha Ahsan’s health and welfare?

See answer to question 9.

24) Does the FCO operate a policy of racism towards Muslims?

The UK Government does not operate a policy of racism toward Muslims. It is committed to combating racism, xenophobia and intolerance, both domestically and internationally.

26) Did the UK try to get Syed Talha Ahsan into a more humane prison instead of prisons which have been described as torture chambers where more than 90% plea bargain (even confessing to crimes they did not commit to avoid further torture)?

See answer to question 9.

I hope you are satisfied with this reply. However, if you wish to make a complaint or if you would like a review of our decision, please write to the FOI and DPA Team, Foreign and Commonwealth Office, Room K4.10-13, King Charles Street, London, SW1A 2AH. E-mail: [email protected]. You have 40 working days to do so from the date of this letter.

If you are not content with the outcome of your complaint, you may then apply directly to the Information Commissioner for a decision. Generally, the Information Commissioner cannot make a decision unless you have exhausted the complaints procedure provided by the FCO. The Information Commissioner can be contacted at: Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow, Cheshire SK9 5AF.

Yours sincerely,

Data Protection – Freedom of Information Team

We keep and use information in line with the Data Protection Act 1998. We may release this personal information to other UK government departments and public authorities.