England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		30/11/2006

LAWS LJ :

INTRODUCTORY: BACKGROUND FACTS

1. This is another case about extradition to the United States of America pursuant to provisions contained in the Extradition Act 2003 ("the 2003 Act"). The proceedings are by way of statutory appeals brought under the 2003 Act. I shall introduce the relevant provisions in due course.
2. On 28 July 2004 the United States District Court for the District of Connecticut issued a criminal complaint against Mr Ahmad and a warrant for his arrest. The offences specified on the warrant were described thus: "material support of terrorism, prohibited support of the Taliban, conspiracy to kill persons in a foreign country, money laundering, solicitation and conspiracy". On 6 October 2004 a federal grand jury sitting in Bridgeport, Connecticut, returned an indictment against Mr Ahmad alleging the commission of four felonies between 1997 and August 2004: conspiracy to provide material support to terrorists; providing material support to terrorists; conspiracy to kill, kidnap, maim or injure persons or damage property in a foreign country; and money laundering. In light of one of the submissions advanced on Mr Ahmad's behalf by Mr Fitzgerald QC I should notice that among the particulars given of the conspiracy there are allegations that in the years 1997-2000 Mr Ahmad furnished support for the Mujahideen in Chechnya and for the Taliban in Afghanistan. The Mujahideen and the Taliban constituted or formed part of the de facto governments of those territories at the material time. Mr Fitzgerald says that to the extent that these allegations are relied on, the charge against Mr Ahmad is not one of an "extradition offence" within the meaning of s.137 of the 2003 Act. I will explain in due course how the argument is put.
3. On 7 October 2004 the District Court issued a new arrest warrant against Mr Ahmad, superseding the July version, so as to reflect the offences alleged in the indictment returned by the grand jury the day before.
4. Mr Aswat is wanted to stand trial in the United States District Court for the Southern District of New York. In his case there is a federal grand jury indictment containing eleven counts. He is jointly indicted with a man called Abu Hamza. Mr Aswat is charged only on counts 3-6. The essence of the allegations is that he became involved in a conspiracy with Abu Hamza and others to establish a jihad training camp in Bly, Oregon. In light of one of Mr Fitzgerald's arguments in Mr Aswat's case I should indicate that a principal witness on whose testimony the prosecutor proposes to rely is a man called Ujaama, who is said to have proposed that the camp be established so as to provide various types of military training including weapons and firearms training for men who would then go and fight in Afghanistan. Mr Ujaama was himself charged but entered into a plea agreement. Mr Fitzgerald says that Mr Ujaama was coerced into providing evidence against Mr Aswat by the threat that if he did not he would be sent to the United States' detention facility at what is called the North Carolina brig (not Guantanamo Bay in Cuba, because Mr Ujaama is a United States citizen). It is said that the threat is implicit in a promise contained within the plea agreement to the effect that if he kept his bargain he would not be detained as an enemy combatant and hence not be sent to the detention facility.

THE 2003 ACT

5. In order to understand the nature of the extradition process, its application on the facts of this case, and the basis of the appeals, it is convenient first to introduce the relevant provisions of the 2003 Act.
6. The 2003 Act created a new extradition regime. Part I has its genesis in the Council Framework Decision of 2002 on the European arrest warrant, and contains provisions dealing with extradition from the United Kingdom to what are called "category 1" territories, that is to say territories designated as such by order of the Secretary of State. These are in effect (to date at least) the European Union countries which operate the European arrest warrant. I need not describe the Part I procedures, save to note that they are largely replicated in Part II, with which we are directly concerned.
7. Part II deals with "category 2" territories. These also are designated by order of the Secretary of State. A principal category 2 territory is the United States. So it is the provisions of Part II that are engaged in this case. S.73 (which was deployed in these cases) provides for the issue out of a magistrates court of a provisional warrant of arrest if certain conditions are satisfied. S.70 requires the Secretary of State to issue a certificate "if he receives a valid request for the extradition to a category 2 territory of a person who is in the United Kingdom". In this case there is no dispute as to the statutory validity of the request that was made in respect of either claimant. Upon the certificate's issue the Secretary of State must (s.70(9)) send the documents to the appropriate judge (here, the Bow Street district judge, who is designated for the purpose). The judge may then (s.71(2)) "issue a warrant for the arrest of the person whose extradition is requested" if certain conditions are fulfilled. The first condition is that "the offence in respect of which extradition is requested is an extradition offence".
8. As for the extradition hearing itself, under s.78(2) the judge must decide whether he has the documents which the Act requires. In this case there is no contest about that. By s.78(4) the judge must then proceed to decide further questions, one of which is whether "(b) the offence specified in the request is an extradition offence". If this hurdle is overcome the judge must next proceed under s.79 which is cross-headed "Bars to extradition". There are four such bars, of which the second (s.79(1)(b)) is "extraneous considerations" and is engaged by one of Mr Fitzgerald's submissions. "Extraneous considerations" are dealt with in s.81, which provides in part:

"A person's extradition to a category 2 territory is barred by reason of extraneous considerations if (and only if) it appears that –

…

(b) if extradited he might be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality, gender, sexual orientation or political opinions."

9. If there are no bars to extradition, the judge is required by s.79(4) to proceed under s.84. By s.84(1) he must decide whether there is evidence to demonstrate a prima facie case, unless s.84(7) applies. That provides:

"If the judge is required to proceed under this section and the category 2 territory to which extradition is requested is designated for the purposes of this section by order made by the Secretary of State –

(a) the judge must not decide under subsection (1), and

(b) he must proceed under section 87."

The United States is so designated, by the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003. So no prima facie case has to be shown in relation to a prospective extraditee to that country. S.87 provides:

"(1) If the judge is required to proceed under this section (by virtue of section 84…) he must decide whether the person's extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998.

(2) If the judge decides the question in subsection (1) in the negative he must order the person's discharge.

(3) If the judge decides that question in the affirmative he must send the case to the Secretary of State for his decision whether the person is to be extradited."

The Secretary of State's functions are conferred by ss.93 ff. I need not however describe them because the appeals against the Secretary of State's decisions in this case have been withdrawn, in circumstances I will explain.

10. I may turn now to the appeal provisions. There are separate rights of appeal against decisions of the judge, and against an order for extradition made by the Secretary of State. As for the first, s.103 provides so far as material:

"(1) If the judge sends a case to the Secretary of State under this Part for his decision whether a person is to be extradited, the person may appeal to the High Court against the relevant decision.

…

(3) The relevant decision is the decision that resulted in the case being sent to the Secretary of State.

(4) An appeal under this section may be brought on a question of law or fact.

(5) If an appeal is brought under this section before the Secretary of State has decided whether the person is to be extradited the appeal must not be heard until after the Secretary of State has made his decision.

…"

S.104:

"(1) On an appeal under section 103 the High Court may –

(a) allow the appeal;

(b) direct the judge to decide again a question (or questions) which he decided at the extradition hearing;

(c) dismiss the appeal.

(2) The court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied.

(3) The conditions are that –

(a) the judge ought to have decided a question before him at the extradition hearing differently;

(b) if he had decided the question in the way he ought to have done, he would have been required to order the person's discharge.

(4) The conditions are that –

(a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing;

(b) the issue or evidence would have resulted in the judge deciding a question before him at the extradition hearing differently;

(c) if he had decided the question in that way, he would have been required to order the person's discharge.

(5) If the court allows the appeal it must –

(a) order the person's discharge;

(b) quash the order for his extradition.

..."

Ss.108 and 109 contain parallel provisions dealing with appeals against orders made by the Secretary of State, but again I need not describe them.

11. S.137, as I have said, defines "extradition offence". It is somewhat convoluted because it caters for a series of alternative states of affairs. For the purpose of Mr Fitzgerald's argument on "extradition offence" in Mr Ahmad's case it is only necessary to notice that by the relevant subsection (s.137(2)) it must be shown the relevant conduct "...would constitute an offence under the law of the relevant part of the United Kingdom [sc. England and Wales] punishable with imprisonment or another form of detention for a term of 12 months or a greater punishment if it occurred in that part of the United Kingdom".

THE 1972 EXTRADITION TREATY

12. I should also introduce the 1972 UK – USA Extradition Treaty, which has played some part in the argument. In fact there is a new extradition treaty agreed between the two States in March 2003. However, when we heard argument in this case, the new Treaty had not entered into force because the United States had not at that stage ratified the Treaty. Since then the Treaty has been ratified (on 30 September 2006), and consequently has become part of the domestic law of the United States. By virtue of Article 23.3 of the new Treaty, the provisions of the old Treaty apply to "any extradition proceedings in which the extradition documents have already been submitted to the courts of the Requested State at the time this Treaty enters into force, except that Article 18 of this Treaty shall apply to persons found extraditable under the prior [ie the 1972] Treaty". Article 18 is the new specialty provision, and applies to any person returned to the United States after the ratification of the new Treaty. However, on examination, Article 18 of the new Treaty replicates with immaterial modifications Article XII of the old. I therefore set out below Article XII of the 1972 Treaty, which was before the court when argument was heard.
13. Article IV of the 1972 Treaty provided:

"If the offense for which extradition is requested is punishable by death under the relevant law of the requesting Party, but the relevant law of the requested Party does not provide for the death penalty in a similar case, extradition may be refused unless the requesting Party gives assurances satisfactory to the requested Party that the death penalty will not be carried out."

Article XII guarantees compliance with what is often called the specialty rule, namely the requirement that an extradited person may only be tried in the requesting State for the crime or crimes for which he has been extradited:

"(1) A person extradited shall not be detained or proceeded against in the territory of the requesting Party for any offense other than an extraditable offense established by the facts in respect of which his extradition has been granted, or on account of any other matters, nor be extradited by that Party to a third State –

(a) until after he has returned to the territory of the requested Party; or

(b) until the expiration of thirty days after he has been free to return to the territory of the requested Party.

(2) The provisions of paragraph (1) of this Article shall not apply to offenses committed, or matters arising, after the extradition."

THE TORTURE CONVENTION

14. On 9 December 1975 the General Assembly of the United Nations, without a vote, adopted a Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Following the Declaration the Torture Convention was prepared and came into force on 26 June 1987. Article 1(1) contained a definition of torture:

"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".

This definition is very close to that given in Article 1(1) of the 1975 Declaration, Article 1(2) of which had provided:

"Torture constitutes an aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment."

15. Article 3(1) of the Torture Convention provides:

"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."

16. Article 15 provides:

"Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made."

THE EXTRADITION PROCESS

17. What follows is a bare summary of the process which in each case led to orders for extradition being made by the Secretary of State. It is conveniently provided at this stage, but the principal issues in the case turn on the effect of materials which I have yet to introduce, namely what is called Military Order No 1 and two Diplomatic Notes issued by the United States Embassy in London. I will set these out after the summary.
18. Mr Ahmad was arrested in London on 5 August 2004 on the authority of a provisional warrant of arrest issued out of the Bow Street Magistrates Court under s.73 of the 2003 Act. On 1 October 2004 the United States government submitted a full extradition request, and a certificate under s.70 of the 2003 Act was issued by the Secretary of State on 5 October 2004. The extradition hearing started on 2 March 2005. It was adjourned to 18 April 2005 so as to allow Mr Ahmad to call evidence touching the statutory bars to extradition under ss.79 – 83 of the Act, and also (s.87) on the question whether his extradition would be compatible with his Convention rights. The decision of Senior District Judge Workman was given on 17 May 2005. He ruled that the extradition request disclosed extradition offences within the meaning of s.137 of the 2003 Act; that there was no statutory bar to Mr Ahmad's extradition; and that his extradition would not be incompatible with his Convention rights. In addition he rejected a submission that the failure (at that time) of the United States to ratify the 2003 USA/UK Extradition Treaty deprived the court of jurisdiction. Accordingly he sent the case to the Secretary of State who on 15 November 2005 ordered Mr Ahmad's extradition.
19. Mr Aswat was arrested in the United Kingdom under a s.73 warrant on 7 August 2005 following a request for his provisional arrest by the United States. A full extradition request was submitted on 29 September 2005 and the Secretary of State issued a s.70 certificate on 3 October 2005. The extradition hearing took place in December 2005 and the decision of Senior District Judge Workman was given on 5 January 2006. Again the judge found no bars to extradition and sent the case to the Secretary of State who ordered Mr Aswat's extradition on 1 March 2006.

MILITARY ORDER No 1

20. On 13 November 2001, thus almost exactly two months after the atrocities of 11 September 2001, the President of the United States issued Military Order No 1 on the "Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism". I must set out most of the document.

"By the authority vested in me as President and as Commander in Chief of the Armed Forces of the United States by the Constitution and the laws of the United States of America, including the Authorization for Use of Military Force Joint Resolution (Public Law 107-40, 115 Stat. 224) and sections 821 and 836 of title 10, United States Code, it is hereby ordered as follows:

Section 1.  Findings.

(a)  International terrorists, including members of al Qaida, have carried out attacks on United States diplomatic and military personnel and facilities abroad and on citizens and property within the United States on a scale that has created a state of armed conflict that requires the use of the United States Armed Forces.

...

(e)  To protect the United States and its citizens, and for the effective conduct of military operations and prevention of terrorist attacks, it is necessary for individuals subject to this order pursuant to section 2 hereof to be detained, and, when tried, to be tried for violations of the laws of war and other applicable laws by military tribunals.

(f)  Given the danger to the safety of the United States and the nature of international terrorism, and to the extent provided by and under this order, I find consistent with section 836 of title 10, United States Code, that it is not practicable to apply in military commissions under this order the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts.

(g)  Having fully considered the magnitude of the potential deaths, injuries, and property destruction that would result from potential acts of terrorism against the United States, and the probability that such acts will occur, I have determined that an extraordinary emergency exists for national defense purposes, that this emergency constitutes an urgent and compelling government interest, and that issuance of this order is necessary to meet the emergency.

Sec. 2.  Definition and Policy.

(a)  The term 'individual subject to this order' shall mean any individual who is not a United States citizen with respect to whom I determine from time to time in writing that:

(1)  there is reason to believe that such individual, at the relevant times,

(i) is or was a member of the organization known as al Qaida;

(ii) has engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefor, that have caused, threaten to cause, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy; or

(iii) has knowingly harbored one or more individuals described in subparagraphs (i) or (ii) of subsection 2(a)(1) of this order;

and

(2)  it is in the interest of the United States that such individual be subject to this order.

(b)  It is the policy of the United States that the Secretary of Defense shall take all necessary measures to ensure that any individual subject to this order is detained in accordance with section 3, and, if the individual is to be tried, that such individual is tried only in accordance with section 4.

(c)  It is further the policy of the United States that any individual subject to this order who is not already under the control of the Secretary of Defense but who is under the control of any other officer or agent of the United States or any State shall, upon delivery of a copy of such written determination to such officer or agent, forthwith be placed under the control of the Secretary of Defense.

Sec. 3.  Detention Authority of the Secretary of Defense.  Any individual subject to this order shall be --

(a)  detained at an appropriate location designated by the Secretary of Defense outside or within the United States;

(b)  treated humanely, without any adverse distinction based on race, color, religion, gender, birth, wealth, or any similar criteria;

(c)  afforded adequate food, drinking water, shelter, clothing, and medical treatment;

(d)  allowed the free exercise of religion consistent with the requirements of such detention; and

(e)  detained in accordance with such other conditions as the Secretary of Defense may prescribe.

Sec. 4.  Authority of the Secretary of Defense Regarding Trials of Individuals Subject to this Order.

(a)  Any individual subject to this order shall, when tried, be tried by military commission for any and all offenses triable by military commission that such individual is alleged to have committed, and may be punished in accordance with the penalties provided under applicable law, including life imprisonment or death.

(b)  As a military function and in light of the findings in section 1, including subsection (f) thereof, the Secretary of Defense shall issue such orders and regulations, including orders for the appointment of one or more military commissions, as may be necessary to carry out subsection (a) of this section.

(c)  Orders and regulations issued under subsection (b) of this section shall include, but not be limited to, rules for the conduct of the proceedings of military commissions, including pretrial, trial, and post-trial procedures, modes of proof, issuance of process, and qualifications of attorneys, which shall at a minimum provide for --

(1)  military commissions to sit at any time and any place, consistent with such guidance regarding time and place as the Secretary of Defense may provide;

(2)  a full and fair trial, with the military commission sitting as the triers of both fact and law;

(3)  admission of such evidence as would, in the opinion of the presiding officer of the military commission (or instead, if any other member of the commission so requests at the time the presiding officer renders that opinion, the opinion of the commission rendered at that time by a majority of the commission), have probative value to a reasonable person;

...

(5)  conduct of the prosecution by one or more attorneys designated by the Secretary of Defense and conduct of the defense by attorneys for the individual subject to this order;

(6)  conviction only upon the concurrence of two-thirds of the members of the commission present at the time of the vote, a majority being present;

(7)  sentencing only upon the concurrence of two-thirds of the members of the commission present at the time of the vote, a majority being present; and

(8)  submission of the record of the trial, including any conviction or sentence, for review and final decision by me or by the Secretary of Defense if so designated by me for that purpose.

Sec. 5.  Obligation of Other Agencies to Assist the Secretary of Defense.

Departments, agencies, entities, and officers of the United States shall, to the maximum extent permitted by law, provide to the Secretary of Defense such assistance as he may request to implement this order.

Sec. 6.  Additional Authorities of the Secretary of Defense.

(a)  As a military function and in light of the findings in section 1, the Secretary of Defense shall issue such orders and regulations as may be necessary to carry out any of the provisions of this order.

...

Sec. 7.  Relationship to Other Law and Forums.

(a)  Nothing in this order shall be construed to --

...

(2)  limit the authority of the President as Commander in Chief of the Armed Forces or the power of the President to grant reprieves and pardons...

(b) With respect to any individual subject to this order --

(1) military tribunals shall have exclusive jurisdiction with respect to offenses by the individual; and

(2) the individual shall not be privileged to seek any remedy or maintain any proceeding, directly or indirectly, or to have any such remedy or proceeding sought on the individual's behalf, in (i) any court of the United States, or any State thereof, (ii) any court of any foreign nation, or (iii) any international tribunal.

(c)  This order is not intended to and does not create any right, benefit, or privilege, substantive or procedural, enforceable at law or equity by any party, against the United States, its departments, agencies, or other entities, its officers or employees, or any other person.

...

(e)  I reserve the authority to direct the Secretary of Defense, at any time hereafter, to transfer to a governmental authority control of any individual subject to this order.  Nothing in this order shall be construed to limit the authority of any such governmental authority to prosecute any individual for whom control is transferred.

..."

21. The reference in Section 3(a) to "an appropriate location" for the detention of persons subject to the order includes, in the events which have happened, the detention facility at Guantanamo Bay. A major theme of these appeals consists in the appellants' contention that if they are extradited there is a real prospect that they will be made subject to Military Order No 1 by a determination of the President under Section 2(a) and thereafter detained indefinitely, it may be at Guantanamo Bay, pursuant to Section 3, and/or put on trial before a military commission pursuant to Section 4. Were that to happen they would suffer violations of their rights under Article 5 of the European Convention on Human Rights ("ECHR") (no detention save on strict conditions) and Article 6 (the right to a fair trial before an impartial and independent tribunal).
22. The district judge found that given the allegations against the appellants it would be open to the President of the United States to designate them as "enemy combatants", which in this context is a shorthand for the application of the criterion set out in Section 2(a)(1)(ii) of Military Order No 1. The judge also found that their exposure to Military Order No 1, if that were to happen, would involve violations of their Convention rights. It is enough to cite this passage from the judgment below in Mr Ahmad's case:

"I am satisfied that the defendant meets the criteria which would permit the President of the United States of America to personally make an order designating the defendant as an enemy combatant who could then be detained and tried by a Military Tribunal.

If such an order were made there is a substantial risk that the defendant would be detained at Guantanamo Bay or subjected to rendition to another country. He would be subject to military detention, detained incommunicado, and would not have the opportunity to seek representation of his choice. He could be detained indefinitely or he could be placed before a Military Tribunal which, depending upon the nature of the charge preferred, could render him liable to the death penalty.

There is no doubt in my mind that if he were to be subject to Military Order No 1 he would be deprived of his Convention rights within the meaning of the Human Rights Act 1998, he would probably be subject to detention in circumstances which would be inhuman and degrading, and there would be a denial of justice contrary to Article 6 of the European Convention.

If Military Order No 1 could be applied, extradition would be barred under Section 87 of the Extradition Act 2003."

23. None of these conclusions is challenged before us by the US government, nor, as I understand it, were they controversial in the court below. The judge made like findings in Mr Aswat's case, and I need not separately rehearse his reasoning there. Each appeal accordingly proceeds on the premise that if subjected to Military Order No 1 following his extradition, the appellant would suffer violations of his Convention rights, notably those guaranteed by Articles 5 (no detention without trial) and 6 (fair trial), and it may be Article 3 (prohibition of inhuman and degrading treatment and torture).
24. Yet in each case the judge found that the appellant's ECHR rights would not in fact be violated upon his extradition. He did so principally (there were other points, as I shall show) because of the effect, as he found it to be, of Diplomatic Notes issued out of the United States' Embassy in London.

THE DIPLOMATIC NOTES

25. In Mr Ahmad's case Diplomatic Note No 25 was issued on 23 March 2005, thus after the adjournment of the extradition hearing on 2 March 2005 and before its resumption on 18 April 2005. In Mr Aswat's case Diplomatic Note No 114 was issued on 20 December 2005. In both cases the Notes were before the district judge and considered by him. The terms of Diplomatic Note No 25, which was the first in time, are as follows:

"The Embassy of the United States of America at London, England, presents its compliments to Her Majesty's Principal Secretary of State for Foreign and Commonwealth Affairs and has the honor to refer to Note No. 100 dated November 15, 2004, requesting the extradition of Babar Ahmad to the United States of America...

Pursuant to Article IV of the Extradition Treaty Between the Government of the United States and the Government of the United Kingdom of Great Britain and Northern Ireland, the Government of the United States hereby assures the Government of the United Kingdom that the United States will neither seek the death penalty against, nor will the death penalty be carried out, against Babar Ahmad upon his extradition to the United States.

The Government of the United States further assures the Government of the United Kingdom that upon extradition to the United States, Babar Ahmad will be prosecuted before a Federal Court in accordance with the full panoply of rights and protections that would otherwise be provided to a defendant facing similar charges.

Pursuant to his extradition, Babar Ahmad will not be prosecuted before a military commission, as specified in the President's Military Order of November 13, 2001; nor will he be criminally prosecuted in any tribunal or court other than a United States Federal Court; nor will he be treated or designated as an enemy combatant..."

The Note in Mr Aswat's case did not refer to the death penalty. The offences for which extradition was sought are not so punishable.

26. In his decision of 17 May 2005 in Mr Ahmad's case the district judge said this:

"I have had to consider the status of that Diplomatic Note. I am satisfied whilst it does not provide any personal protection to this defendant; the Diplomatic Note does bind the American Government, which includes the President of the United States. As such I am satisfied that the risk of an order being made under Military Order No. 1 is almost entirely removed.

Although I have received evidence of extraordinary rendition to another State, the Government denies that such action takes place. If such steps do take place I am satisfied that in this case, in the light of the Undertaking not to invoke Military Order No. 1, the risk of extraordinary rendition is negligible."

The judge's conclusions in Mr Aswat's case were to the same effect.

THE COURSE OF THESE PROCEEDINGS: THE APPEAL POINTS OUTLINED

27. Appeals to this court were launched in each case under s.103 against the district judge's decision, and under s.108 against the order of the Secretary of State. At the hearing before us, however, the s.108 appeals were withdrawn. Mr Fitzgerald acknowledged that if he could not succeed under s.103 against the district judge, his clients could get no separate comfort from appeals against the Secretary of State. I think he was entirely right to do so.
28. There are four points common to both appeals, which I may describe in barest outline as follows, but must of course explain more fully:

(1) There is a substantial risk that if extradited each appellant would face detention and/or trial by military commission under Military Order No 1, and thus suffer violations of his Convention rights.

(2) There is a like risk that each appellant would be subjected to what is called "extraordinary rendition", and thus, again, suffer violations of his Convention rights.

(3) There is a like risk that each appellant, even if he were remanded for trial by the ordinary federal civilian courts, would be subjected to what are called "special administrative measures" ("SAMs") which would also involve violations of his Convention rights. In addition there would on this ground be a bar to extradition by force of s.81(b) of the 2003 Act.

(4) Any trial, albeit in the ordinary federal civilian courts, would involve evidence obtained by torture in violation of the appellants' rights under ECHR Article 6.

29. There are two other points, one specific to Mr Ahmad's case, the other to Mr Aswat's. In Mr Ahmad's case the point concerns the fact that among the particulars given of the conspiracy that is charged there are allegations that in the years 1997-2000 Mr Ahmad furnished support for the Mujahideen in Chechnya and for the Taliban in Afghanistan, and that the Mujahideen and the Taliban constituted or formed part of the governments of those territories at the material time. As I have foreshadowed, the argument is that these allegations, if proved, would not constitute nor form part of an extradition offence as defined by s.137 of the 2003 Act.
30. I have also foreshadowed the remaining point in Mr Aswat's case, which concerns the potential witness Ujaama. The argument is that the terms and circumstances of Ujaama's plea agreement mean that his evidence, if given at any trial of Mr Aswat, would be coerced: tainted, in effect, by a threat of torture or at least of inhuman and degrading treatment in violation of the standard set by ECHR Article 3. Accordingly it is submitted that the use of his evidence would constitute a flagrant denial of justice and in those circumstances Mr Aswat's extradition would violate his right to a fair trial under ECHR Article 6. The arguments here overlap with those arising on point (4) above, which I will deal with directly.
31. The major issues in the case are those canvassed in the first three points I have enumerated. I find it convenient to deal first with the lesser points – as I have said no. (4) above, and also the two discrete points I have just summarised.

USE OF EVIDENCE OBTAINED BY TORTURE AT ANY TRIAL IN THE FEDERAL CIVILIAN COURTS (POINT (4) ABOVE)

32. The argument is that at any trial in the United States, it is "inevitable" (Mr Ahmad, skeleton argument paragraph 1.11) that evidence obtained by torture and/or inhuman treatment will be deployed against the appellants. Mr Fitzgerald relies on an affidavit sworn on 5 July 2006 by Mr Clive Stafford Smith, a United States qualified attorney with long and distinguished experience of representing indigent defendants facing the death penalty in the United States, and also persons alleged to be terrorists. Mr Stafford Smith deals with a number of aspects of the case. He says (paragraphs 63 ff – I summarise) that at trials involving alleged Al-Qaida conspirators, such as the appellants, an FBI witness is routinely and inevitably called at the start to outline the history of Al-Qaida and of the defendant's part in the conspiracy. This material, says Mr Stafford Smith, will in part be based on evidence obtained by torture and other improper means from detainees at Guantanamo Bay, Baghram and other places of secret detention that are not subject to the rule of law. It is contended that to return either appellant to a trial at which evidence obtained in that manner will be deployed against him would be to perpetrate a flagrant denial of justice in violation of ECHR Article 6. Mr Fitzgerald places much reliance on the decision of their Lordships' House in A v Secretary of State for the Home Department (No 2) [2006] 2 AC 221, [2005] UKHL 71, in which Lord Bingham roundly stated (paragraph 52):

"The principles of the common law, standing alone, in my opinion compel the exclusion of third party torture evidence as unreliable, unfair, offensive to ordinary standards of humanity and decency and incompatible with the principles which should animate a tribunal seeking to administer justice. But the principles of the common law do not stand alone. Effect must be given to the European Convention, which itself takes account of the all but universal consensus embodied in the Torture Convention."

33. Mr Hugo Keith, who appeared with Miss Clair Dobbin for the United States government on Mr Aswat's appeal, submitted first that this ground of appeal lacked an evidential foundation and second that relevant courts in the United States could be relied on to respect relevant guarantees. Mr John Hardy, who appeared with Miss Dobbin for the United States government in the case of Ahmad, adopted these submissions. I shall take them in turn.
34. The first submission concerns evidential foundation. Mr Stafford Smith's evidence on this aspect of the case is of necessity general in nature, although he seeks to draw inferences as to the subject-matter of the testimony that would be given at the appellants' trials: see for example paragraph 70 of the affidavit which I will not set out. This is no criticism of Mr Stafford Smith, but it means that this court cannot know precisely what the evidence would be. Thus it cannot know to what extent such evidence might be controversial, or in what particular circumstances it might have been obtained. In A (No 2) Lord Bingham continued (paragraph 53):

"The appellants broaden their argument to contend that all the principles on which they rely apply to inhuman and degrading treatment, if inflicted by an official with the requisite intention and effect, as to torture within the Torture Convention definition. It is, of course, true that article 3 of the European Convention (and the comparable articles of other human rights instruments) lump torture and inhuman or degrading treatment together, drawing no distinction between them. The European Court did, however, draw a distinction between them in Ireland v United Kingdom (1978) 2 EHRR 25, holding that the conduct complained of was inhuman or degrading but fell short of torture, and article 16 of the Torture Convention draws this distinction very expressly:

'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 1, 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. In particular, the obligations contained in articles 10, 11, 12 and 13 shall apply with the substitution for references to torture or references to other forms of cruel, inhuman or degrading treatment or punishment.

2.  The provisions of this Convention are without prejudice to the provisions of any other international instrument or national law which prohibit cruel, inhuman or degrading treatment or punishment or which relate to extradition or expulsion.'

Ill-treatment falling short of torture may invite exclusion of evidence as adversely affecting the fairness of a proceeding under section 78 of the 1984 Act, where that section applies. But I do not think the authorities on the Torture Convention justify the assimilation of these two kinds of abusive conduct. Special rules have always been thought to apply to torture, and for the present at least must continue to do so. It would, on the other hand, be wrong to regard as immutable the standard of what amounts to torture..."

It is to be noted that Article 16(1) does not apply the exclusionary rule of evidence contained in Article 15 (which I have already set out) to "other forms [short of torture] of cruel, inhuman or degrading treatment or punishment".

35. The distinction between torture and other forms of inhuman or degrading treatment is of some importance given the limits of Mr Stafford Smith's testimony. Mr Fitzgerald accepted in reply that the appellants could not be specific. In the absence, unavoidable as it is, of information as to the precise circumstances in which any evidence to be given in US courts against these appellants would or might have been obtained I am not prepared to hold that it would be distinctly obtained by torture, so that process against the appellants would be tainted by violation of ECHR Article 6. Mr Fitzgerald accepts that a flagrant denial of justice has to be shown: see Ullah [2004] 2 AC 323 paragraph 24 per Lord Bingham, citing earlier Strasbourg authority.
36. Mr Keith's second submission concerned respect given by United States courts to relevant guarantees. Two points arise on this part of the case. The first is that while, as I understand it, it is common ground that the law of evidence in federal criminal cases in the United States does not generally contemplate the exclusion of testimony on the basis that it has a tainted source, we may reasonably suppose that the court would arrive at a proper decision upon any submission made to it that particular evidence should be excluded by force of Article 15 of the Torture Convention. The second is that the court would no doubt be amenable to argument that the weight to be accorded to any particular evidence was greatly lessened, perhaps extinguished, by virtue of its having been obtained by other forms of ill-treatment. I venture to cite some words of my own in the Court of Appeal in A (No 2) – with great diffidence, given the House of Lords' very firm overruling in that case of the majority conclusion (to which I was party) in the Court of Appeal on the issue of admissibility of evidence obtained by torture. However not least having regard to the distinction accepted by Lord Bingham between torture and other forms of inhuman or degrading treatment, I think Mr Keith was justified in submitting that this passage (so far as it relates to non-torture cases) was not disapproved in their Lordships' House:

[I expressed reservations about the decision of this court in Ramda [2002] EWHC Admin 1278] "... as regards the impact on the fairness of a prospective trial of the fact that the trial court may be asked to consider evidence against the accused (not consisting in a statement made by himself) which was or may have been obtained by oppressive conduct. If we are looking, as article 6 in terms enjoins us, at fairness, why is fairness not satisfied by the availability of robust argument going to the weight of the tainted evidence?"

37. I conclude that the case on point (4) set out above is not made out and the appellants are not entitled on account of it to be discharged pursuant to s.87 of the 2003 Act.

MR ASWAT'S CASE: THE WITNESS UJAAMA

38. It is convenient to deal with this argument next, because of its affinity with point (4) which I have just addressed. I have already summarised the submission. In barest outline it is that the terms and circumstances of Ujaama's plea agreement mean that his evidence, if given at any trial of Mr Aswat, would be tainted by threat of torture or at least of inhuman and degrading treatment, and in those circumstances its use would constitute a flagrant denial of justice in violation of Mr Aswat's right to a fair trial under ECHR Article 6.
39. There is a good deal of evidence before the court about Mr Ujaama. He pleaded guilty, and entered into the plea agreement to which I have referred, on 14 April 2003. Thomas Loflin III, a United States attorney, who gave evidence at Bow Street for both Mr Ahmad and Mr Aswat and has sworn affidavits in these proceedings, speaks of conversations he has had with Mr Ujaama's own counsel, Robert Mahler, who had been an associate lawyer in Mr Loflin's firm. Mr Loflin's understanding is that Mr Ujaama entered into the plea agreement effectively under threat of indefinite detention and of (at least) inhuman or degrading treatment while detained, and of being subjected to SAMs. I must deal in greater detail with SAMs when I address point (3) above. For present purposes it is enough to say that they are imposed in certain circumstances on persons imprisoned in the United States, including persons awaiting trial; they involve, or may involve, solitary confinement, isolation from contact with other inmates and visitors from outside, restrictions on correspondence, and the monitoring or reviewing of communications between the prisoner and his counsel.
40. Mr Loflin (see his e-mail letter of 3 July 2006 copied to Mr Fitzgerald) reports Mr Mahler as saying that onerous SAMs had been applied to Mr Ujaama in custody. A challenge to their legality was as I understand it never resolved, presumably because the plea agreement supervened. Mr Loflin says, moreover, that he was told by Mr Mahler that Mr Ujaama had been threatened with indefinite detention. Mr Loflin's view of the basis on which Mr Ujaama's plea agreement was entered into is founded in part on his understanding of what he was told by Mr Mahler, and in part on the written terms of the agreement itself. That refers to the lifting of SAMs, and the State's foregoing the right to detain him as an enemy combatant, as conditions of the plea.
41. However the evidence on this part of the case is not all one way. We have an affidavit from Mr Mahler himself, sworn on 3 May 2006. He states (paragraphs, 6, 10, 11) that he did not think it possible he would have said to Mr Loflin that Mr Ujaama had been threatened with indefinite detention "because it is simply not true. No such threat was made." As for the provision in the plea agreement relating to designation as an enemy combatant, Mr Mahler states that this was included "just out of an abundance of caution" (paragraph 8) and that such a possibility was never "perceived as a credible threat". Indeed, he cautioned Mr Loflin against relying upon this point (paragraph 9). There is also an affidavit lodged on behalf of the United States from Mr Eric Bruce which addresses the circumstances in which Mr Ujaama came to plead guilty on 14 April 2003. I need not address its details.
42. Mr Loflin insists that his account of his conversation with Mr Mahler is accurate; he made a note or record of it shortly after it took place. Against a background of dispute on the point we are in no position to make accurate and detailed findings of fact as to the circumstances in which Mr Ujaama entered into his plea agreement. I have not forgotten that an appeal under s.103(4) of the 2003 Act may be brought on a question of fact as well as law; however there was no suggestion that we hear oral testimony with cross-examination, and there was certainly no question of Mr Ujaama himself giving evidence before us.
43. In any case Mr Keith was I think right to submit that even if Mr Ujaama was threatened with SAMs and with indefinite detention, this falls short of a finding that he was in fact subjected to cruel, inhuman or degrading treatment. Article 15 of the Torture Convention has, I think, no application on Mr Aswat's own case; and A (No 2) (not least given paragraph 53, which I have read) does not indicate that Mr Ujaama's being called to the witness-box would be repugnant either to any principle of the common law or to ECHR Article 6. I recognise that this court has held (Ramda [2002] EWHC (Admin) 1278, paragraph 22) that trial on evidence obtained in breach of ECHR Article 3 can amount to a flagrant denial of justice contrary to Article 6, but in my judgment the material before us cannot be said to support such an outcome in the event that Mr Ujaama were to give evidence against Mr Aswat. The reliability of any such evidence would, no doubt, be well tested by vigorous cross-examination.
44. For all these reasons there is in my judgment no force in Mr Fitzgerald's argument on behalf of Mr Aswat concerning the potential witness Mr Ujaama.

MR AHMAD'S CASE: NO EXTRADITION OFFENCE

45. As I have said, the particulars given of the conspiracy with which Mr Ahmad is charged include allegations that in the years 1997-2000 Mr Ahmad furnished support for the Mujahideen in Chechnya and for the Taliban in Afghanistan. The facts said to support these particulars are that Mr Ahmad was responsible for establishing and maintaining internet web-sites (so-called Azzam publications) in the United States through which he and others solicited persons in the United States and elsewhere to give or otherwise make available money or other property for the purpose of furthering acts of terrorism in Chechnya and Afghanistan. Mr Fitzgerald submits that to the extent that these allegations are relied on, the charge against Mr Ahmad is not one of an "extradition offence" within the meaning of s.137 of the 2003 Act. He accepts that the remaining particulars of the alleged conspiracy are within the Act.
46. The submission is that the conspiracy, so far as it is sought to be supported by the particulars relating to the Mujahideen in Chechnya and the Taliban in Afghanistan, would not (for reasons I shall explain) "... constitute an offence under the law of the relevant part of the United Kingdom [sc. England and Wales] punishable with imprisonment or another form of detention for a term of 12 months or a greater punishment if it occurred in that part of the United Kingdom" (s.137(2) of the 2003 Act). The principal offences under English law on which the United States relies to bring the case within s.137(2) are those provided for in s.9 of the Prevention of Terrorism (Temporary Provisions) Act 1989 ("the 1989 Act"), for which by s.13 of the 1989 Act the prescribed penalty is a maximum term of 14 years imprisonment.
47. S.9 of the 1989 Act provides so far as relevant:

"(1) A person is guilty of an offence if he -

(a) solicits or invites any other person to give, lend or otherwise make available, whether for consideration or not, any money or other property,

intending that it shall be applied or used for the commission of, or in furtherance of or in connection with, acts of terrorism to which this section applies or having reasonable cause to suspect that it may be so used or applied.

(2) A person is guilty of an offence if he -

(a) gives, lends, or otherwise makes available to any other person, whether for consideration or not, any money or other property; or

(b) enters into or is otherwise concerned in an arrangement whereby money or other property is or is to be made available to another person,

knowing or having reasonable cause to suspect that it will or may be applied or used as mentioned in subsection (1) above.

(3) The acts of terrorism to which this section applies are -

(a) acts of terrorism connected with the affairs of Northern Ireland; and

(b) subject to subsection (4) below, acts of terrorism of any other description except acts connected solely with the affairs of the United Kingdom or any part of the United Kingdom other than Northern Ireland.

(4) Subsection (3)(b) above does not apply to an act done or to be done outside the United Kingdom unless it constitutes or would constitute an offence triable in the United Kingdom."

By s.20(1) of the 1989 Act terrorism was defined as "the use of violence for political ends, and includes any use of violence for putting the public or any section of the public in fear". There is a further definition of terrorism given by s.1 of the Terrorism Act 2000 ("the 2000 Act"), which I need not read.

48. I should refer also to certain other English law offences on which, or some of which, I understand the United States authorities also to rely. Ss.15, 16 and 17 of the 2000 Act proscribe fund-raising, the use and possession of funds, and entering into a fund-raising arrangement for the purpose of terrorism. S.4 of the Offences Against the Person Act 1861 ("the 1861 Act") creates an offence of solicitation or incitement to murder. None of these offences is subject to any territorial limitations. Mr Fitzgerald observed that murder only arises if the person killed is "under the Queen's peace". This excludes from murder killing in the course of war and perhaps rebellion. However Mr Fitzgerald's submission on behalf of Mr Ahmad is much wider.
49. Mr Fitzgerald submits that at the times material to the charge against Mr Ahmad, the Mujahideen in Chechnya and the Taliban in Afghanistan were, in effect, the governing powers in those territories; and no crime is committed under the 1989 Act, the 2000 Act, or (I suppose) the 1861 Act, by the commission of acts in support of the government in any State. Such acts are not in the nature of terrorist activities.
50. There is nothing in any of the statutes to suggest such an exception, or such a defence, in relation to the crimes prescribed. Mr Fitzgerald says that it is to be implied. That is a very difficult position. Apart from anything else I do not begin to see how it can be applied to the 1861 Act, as to which, however, we heard no distinct submissions. But even if one allows some credence to the argument, it cannot in my judgment avail the appellant Mr Ahmad. On its face the charge accuses him of a crime which satisfied s. 137 of the 2003 Act. As Mr Hardy observed, the indictment refers in broad terms to support for "jihad and mujihadeen." This is not necessarily to be equated with support for governmental action within that government's own territory. If an examination of the facts might reveal a special defence of which he could take advantage, it would surely be the trial court's responsibility to see whether the defence was made out. He cannot plead it here. To do so invites this court – pro tanto, at least – to judge the case's merits; which is not our function.

SUBJECTION TO MILITARY ORDER No 1 (POINT (1) ABOVE)

51. On this part of the case the court is invited to hold that the United States would not honour the Diplomatic Notes given in each case, or at least that there is a substantial risk that they would not.
52. It is submitted that both appellants face the prospect, if they are extradited, of being designated as enemy combatants (that is, made subject to Military Order No 1 by a determination made by the President of the United States to that effect under Section 2(a) of the Order) and thus exposed to indefinite detention without trial at Guantanamo Bay and/or trial by military commission. There is also a possibility, so it is said, that they might be sentenced to death and executed. Indefinite detention would violate the appellants' rights under ECHR Article 3 and Article 5, and the risk of trial before a military commission would amount to a flagrant denial of justice in violation of Article 6. There would also be a bar to extradition arising by force of s.81(b) of the 2003 Act because Military Order No. 1 only applies to foreign citizens. As for the death penalty, quite apart from the Convention rights there is the impact of Article IV of the 1972 Treaty, which I have set out.
53. I have already indicated that the district judge found that given the allegations against the appellants they met the criteria for designation by the President pursuant to Section 2(a), and that if they were exposed to Military Order No 1 that would involve violations of their Convention rights. So much was and is accepted by the United States government. However as I have shown the district judge found that because of the Diplomatic Notes "the risk of an order being made under Military Order No. 1 is almost entirely removed".
54. The appellants' case has been put in various ways but may fairly be summarised in three propositions:

i) The Diplomatic Notes do not bind the President (and would not bind any future President) and are "ultra vires", or are legally unacceptable undertakings not to apply the general law of the requesting state.

ii) The Diplomatic Notes are drafted in such a way that it would be possible for the United States authorities to apply Military Order No 1 to the appellants after their return, and yet claim that there was no breach of the undertakings in the Notes.

iii) As a matter of fact, the Notes are not to be relied on.

(i) Legal Status of the Diplomatic Notes

55. A good deal of evidence has been deployed by the appellants to support this part of their case. It consists in affidavits and oral testimony before the district judge from Mr Loflin and also the affidavit from Mr Stafford Smith, sworn on 5 July 2006, to which I have referred, and also a further affidavit sworn by him. Now, there is plainly a difference between the question whether the Notes are in some sense legally binding on the United States authorities including the President, and the question whether in fact they would be honoured. The first of these questions, being one of law, cannot depend upon any evidence unless the issue is whether the Notes are binding by force of the domestic law of the United States; in which case evidence about that law's effect would be admissible, because of the common law rule that foreign law is a matter of fact. Evidence is, of course, also receivable as to the conditions of international practice in relation to the giving of assurances such as are contained in the Notes.
56. However as I understand it there is no issue of domestic American law. The United States government does not rely on any rule of domestic law giving binding or enforceable effect to the assurances set out in the Notes. The real question is whether in all the circumstances, against the background of relevant international law and practice, this court should accept the Notes as being in fact effective to refute, for the purposes of the 2003 Act, the claims of potential violation of Convention rights and associated bars to extradition.
57. There is, however, more to say at this stage about the law. First, the proposition that the Notes are in some sense ultra vires is in my judgment misplaced. There is no suggestion that they were issued in defiance of some binding rule of United States law with whose application they are inconsistent. That might have been the case if Military Order No 1 (which, I accept, is part of the corpus of United States law) required the President to designate any foreign national to whom the Section 2(a) criteria applied. But it does not; the President has a discretion so to designate. There is therefore no inconsistency between the terms of the Notes and the terms of the Order. The force of the point is illustrated by an observation made by my Lord Walker J in the course of the argument concerning Mr Ujaama: on Mr Fitzgerald's own case the fact, demonstrated by the plea agreement, that the Americans were prepared to forego the subjection of Mr Ujaama to military custody (in his case, as he is a United States national, at the North Carolina brig) shows that they do not regard such a course of action as mandatory or inevitable in every case where it might, on the facts, be put into effect.
58. Nor is it, I think, suggested that this ultra vires argument is supported by any notion that the Notes were in some sense unauthorised by the President or the United States government. Nor could it be. The Notes, as I have said, were issued by the United States Embassy in London. The Ambassador "is the mouthpiece of the Head of his home State and its Foreign Minister, for communications to be made to the State to which he is accredited" (Oppenheim's International Law, Ninth Edition, Vol 1, paragraph 483). Mr Keith in his skeleton argument in Mr Aswat's case at paragraph 2.18, citing authority of the International Court of Justice (Advisory Opinion as to the Customs Arrangements between Germany and Austria, 5 September 1931: Series A/B 41, p.47), correctly submits that international law recognises the use of Diplomatic Notes as a means of recording binding engagements between States. In the eye of international law such a Note is regarded as binding on the State that issues it. This, and this only, is the sense in which the Notes are indeed "binding".
59. Next, Mr Fitzgerald would have us disregard the Notes, or at least treat them with considerable circumspection, because of what he says is the effect of the decision of their Lordships' House in Armah v Government of Ghana and Anor [1968] AC 192. The appellant in that case was committed under the Fugitive Offenders Act 1881 to await his return to Ghana to face trial on corruption charges. He applied for a writ of habeas corpus contending inter alia that it would be unjust and oppressive to return him since he would be liable to be tried under the provisions of the Corrupt Practices (Prevention) Act 1964 by process which might contravene natural justice, in contrast to trial in accordance with the Ghana Criminal Code 1960. "During the hearing the Government of Ghana undertook [by counsel] that if he were returned, he would be tried in accordance with the Criminal Procedure Code 1960" (headnote 193D-E). The Divisional Court dismissed the application, but the House of Lords by a majority of three to two overturned their decision.
60. Mr Fitzgerald principally relies on what was said by Lord Upjohn, but I may first note these observations of Lord Reid at 235G-236B:

"[I]n general it appears to me to be very undesirable that a foreign government should be encouraged to offer not to apply the ordinary law of its country to one of its own subjects if he is returned to that country. There may not be the same objection to the foreign government stating that it does not intend to take certain executive action with regard to the accused person and it might be proper to accept an undertaking on the lines of section 3(2) of the Extradition Act, 1870. But any undertaking or statement of intention is liable to create misunderstanding and perhaps acute difficulties in the event of a change of circumstances."

The material passage from Lord Upjohn's speech is at 262G-263E:

"[T]he Divisional Court accepted the undertakings of the Government of Ghana (1) that if tried and acquitted the appellant would not be taken into protective custody and would be free to leave Ghana; (2) that the appellant would be tried under the Criminal Procedure Code and not under the Corrupt Practices (Prevention) Act, 1964.

The bona fides of the Government of Ghana and of its Attorney-General are not for one moment in doubt, but I think it is wrong in principle to permit such undertakings to be given or to take them into account.

The appellant can surely come to the superior court (where alone, of course, section 10 arises) and say:

'My liberty is at stake, I am a British subject, judge of the laws of the country to which my return is sought as they stand. It is most unjust to me that to attain their ends the Government should unilaterally be permitted to say that I alone of all the inhabitants am to be freed from those laws which I submit would make it oppressive and unjust to return me.'

So I think that the matter should be judged upon the laws as they stand and it then becomes a matter for the exercise of the discretion of the court under section 10 to consider the relevance of any laws to which the applicant may draw attention and their weight in the balance against other considerations such as the seriousness of the alleged offence, the strength or thinness of the case against the fugitive and all other relevant circumstances.

In addition, it was readily conceded that the word 'undertaking' is a misnomer; it is no more than an expression of intention. Speaking generally, and not with any special reference to the Government of Ghana, there may be a change of government who may not feel bound by the acts of their predecessor. There may be a genuine difference of opinion as to the proper interpretation of the undertakings. Finally, it might in some circumstances be the duty of a government to depart from its expressed intention in the discharge of its duty in the good governance of the country and its inhabitants as a whole."

61. In light of this authority Mr Fitzgerald submits that it would be wrong in principle for the court to rely on the Diplomatic Notes as a basis for concluding that Military Order No 1 would not be applied to the appellants. I do not think this is right. First, it is in my view significant that the "undertaking" in Armah was given by counsel in court. No doubt it was given on instructions, but it cannot have carried the weight or authority of a formal Diplomatic Note issued out of the State's Embassy. As I have shown, State to
    State assurances, taking the form of such Notes, possess a recognised status in public international law. State to State assurances are commonly given in extradition matters, for example to demonstrate the requesting State's loyalty to the specialty rule. Moreover such assurances are specifically contemplated on the face of Article IV of the 1972 UK – USA Extradition Treaty (which I have set out) in relation to the death penalty. The Note in Mr Ahmad's case contained, in terms, Article IV assurances.
62. Secondly, an important theme of the reasoning in Armah consists in their Lordships' concern that a foreign State might in effect offer to suspend its ordinary law as the price of obtaining a fugitive's return. No such concern can arise in this case. On the contrary, the Diplomatic Notes contain assurances that the ordinary law – prosecution before the civilian Federal Court "with the full panoply of rights and protections" – will be applied. The position might well be different if the President were obliged by the terms of Military Order No 1 to designate any persons falling within the Section 2(a) criteria. But as I have already said the President has a discretion to designate; and where he does so, he must determine (Section 2(a)(2)) that "it is in the interest of the United States that such individual be subject to this order". On any view these are special or exceptional measures. The argument which Lord Upjohn puts in the mouth of an appellant to the English court has no place here on the facts. Armah was distinguished both in Launder (No 2) [1998] QB 998 (see per Simon Brown LJ as he then was at 1006G) and in Lodhi (No 1) [2001] EWHC Admin 178 (see per Brooke LJ giving the judgment of the court at paragraph 88) on the ground that in contrast to Armah there was no question of the relevant undertaking being to do other than apply the ordinary law of the requesting State.
63. Mr Keith had some other submissions on Armah. Some of them, not least perhaps his submission that the assurances were given by a mature democracy with which, as it happens, the United Kingdom has for many years co-operated in matters of extradition, extend into another part of the case, namely whether as a matter of fact the Notes are to be relied on ((iii) above). As for Armah it is enough to say that for reasons I have given it would be a distorted and erroneous use of authority to hold that their Lordships' decision in that case should of itself inhibit the courts' reliance on the Notes in the events which have happened.

(ii) Scope of the Diplomatic Notes

64. This part of the argument depends on the words "[p]ursuant to his extradition" in each of the diplomatic notes. The point is crisply articulated in Mr Fitzgerald's skeleton argument for Mr Ahmad as follows:

"[T]he Note only provides that 'pursuant to extradition' the Appellant would be [not] treated as an enemy combatant. No doubt this wording was carefully chosen. It would be open to the US prosecuting authorities to discontinue the criminal proceedings against the Appellant and then to designate him as an enemy combatant. In these circumstances it would be open to the US to claim that the detention was not 'pursuant to extradition' because that process had come to an end with the discontinuance of the criminal proceedings alleged in the request."

65. The implicit suggestion appears to be ("No doubt this wording was carefully chosen") that the possibility of such action being taken was in the minds of the American authorities at the time when the Diplomatic Notes were drafted and issued. If so, it is a very serious allegation of bad faith. It amounts to an accusation that the Notes are nothing but a smoke screen to conceal the United States' true intentions. It is little wonder that Mr Fitzgerald did not pursue the suggestion explicitly. I shall have more to say about the Notes' reliability under the next head – (iii) – but I should make it clear at once that there is not a sliver of justification, in any of the evidence we have seen, for so grave a charge.
66. I should however acknowledge this assertion made in Mr Fitzgerald's skeleton argument in Mr Aswat's case (paragraph 54):

"It is important to recognise that the Appellant's primary case does not require the Court to determine that the US Government would or might act in bad faith by knowingly disregarding an undertaking binding as a matter of international law. His case is that the US may decide to designate him as an enemy combatant, and try him in a military commission, whilst maintaining the position that such treatment falls outside the terms of Diplomatic Note 114, which is not legally binding in any event."

67. In argument Mr Fitzgerald submitted that the risk of such a decision would continue even if Military Order No 1 were amended or replaced. In so far as the case sought to be made is not one of bad faith, but merely a suggestion that if the appellants are extradited they may hereafter encounter the fate described because new information becomes available, then as it seems to me it is contradicted by Article XII of the 1972 Treaty which I have set out. It was submitted that Article XII, on its plain terms, governs only detention in the "territory of the requested party" and therefore does not cover detention in Guantanamo or elsewhere in the world. In order to send the detainee to such a destination, however, it would be necessary first to detain the person in question within the territory of the United States. Another submission was that information presented to the President after the extradition as to the risk posed by the Appellants in the view of the FBI or CIA would necessitate the President's consideration of the application of Military Order No 1 to the Appellants. However by Article XII further action can be taken only in relation to crimes or "matters arising" after the extradition. Absent an accusation of bad faith it is plainly to be presumed that the United States will be loyal to their Treaty obligations. It is to be noted that a Treaty entered into by the United States becomes part of its domestic law upon its coming into effect, without more: see Article VI of the US Constitution. If of course either appellant were accused of an entirely fresh crime or other matter said to have been committed after the extradition, different considerations might arise (see Article XII(2)); but such a contingency cannot form the genesis of any complaint in these proceedings.

(iii) The Diplomatic Notes' Reliability

68. But Mr Fitzgerald does not merely submit that the United States authorities might expose the appellants to the rigours of Military Order No 1 while asserting, by reference to the language of the Diplomatic Notes, that the assurances there given are not violated. He submits that the United States might simply breach the assurances in any event. The appellants' evidence (principally the affidavits of Mr Loflin and Mr Stafford Smith) is presented in such a way as to intertwine this argument with (i) above (relating to the Notes' legal status). But in my judgment we must address fair and square the submission of fact that the Notes would not be honoured. The issue is closely allied to that which arises on Mr Fitzgerald's second principal contention, namely that both appellants face a substantial risk of being subjected to what is called "extraordinary rendition", not least given the district judge's finding that "in the light of the Undertaking not to invoke Military Order No. 1, the risk of extraordinary rendition is negligible". However it is convenient to deal with that separately because of the structure of the arguments as they were presented before us.
69. Mr Fitzgerald submits that the risk that these appellants would be declared enemy combatants and detained under Military Order No 1 is well illustrated by the case of United States v Al-Marri, which is described in Mr Loflin's fourth affidavit (paragraphs 14 ff). In that case United States prosecutors dismissed an indictment against Mr Al-Marri, who was however then declared an enemy combatant and detained in military custody, as I understand it at the North Carolina brig. Mr Loflin's evidence is that Mr Al-Marri's military interrogators threatened him with extraordinary rendition (the subject of point (2), with which I deal below). However Al-Marri was what the Secretary of State has called a "domestic case". There had been no extradition, so that there were no rights of specialty, far less any undertakings given on the international plane to another sovereign State. Similar considerations apply to another instance relied on by Mr Fitzgerald, that of Mr Jose Padilla.
70. There are other specific points relied on by the appellants. Thus they draw attention to Mr Stafford Smith's account (paragraph 28 of his affidavit of 5 July 2006) of an instance in which, in the context of an asylum claim advanced by him on behalf of a client, the United States Department of Justice argued that the State Department's country reports, which favoured Mr Stafford Smith's client's case, were not binding for the purpose of the decision which had to be taken and "it would violate the doctrine of the separation of powers for the court to intervene". On a broader plane, Mr Stafford Smith describes events concerning the signing into law of what is known as "the McCain Amendment", which prohibited torture or cruel and degrading treatment of prisoners. When the President signed it into law he expressed substantial reservations. I need not, I think, describe the details. Mr Stafford Smith, having set out the terms on which the President signed the bill, said this:

"39. In other words, he signed a bill that was perfectly clear on its face, but then announced that his independent Executive power meant that he would not feel bound to apply the bill according to its clear language – even though it explicitly outlawed torture or cruel and degrading punishment of anyone worldwide, the President's independent power gave him the right to ignore it.

40. This statement was considered a betrayal of the core principles of the McCain Amendment by the very people who had so painstakingly worked for its passage."

A little later he says:

"42. … It is very difficult to believe that the President would sign a bill that clearly expressed the will of both Houses of Congress and then immediately announce his plan to ignore it, yet he would not feel similar liberty to ignore a statement made to the British authorities if he felt that it was necessary to U.S. security to do so."

71. Mr Stafford Smith proceeds to set out a lengthy passage from an article in The Boston Globe published on 30 April 2006. It was headlined "Bush Challenges Hundreds of Laws". Mr Stafford Smith's first citation from the article reads:

"President Bush has quietly claimed the authority to disobey more than 750 laws enacted since he took office, asserting that he has the power to set aside any statute passed by Congress when it conflicts with his interpretation of the Constitution."

A later quotation reads:

"Bush is the first president in modern history who has never vetoed a bill, giving Congress no chance to override his judgments. Instead, he has signed every bill that reached his desk, often inviting the legislation's sponsors to signing ceremonies at which he lavishes praise upon their work.

Then, after the media and the lawmakers have left the White House, Bush quietly files 'signing statements' - official documents in which a president lays out his legal interpretation of a bill for the federal bureaucracy to follow when implementing the new law. The statements are recorded in the federal register.

In his signing statements, Bush has repeatedly asserted that the Constitution gives him the right to ignore numerous sections of the bills - sometimes including provisions that were the subject of negotiations with Congress in order to get lawmakers to pass the bill. He has appended such statements to more than one of every 10 bills he has signed."

72. There is a good deal more evidence, not least from Mr Loflin, but I have set out this particular material because it seems to me, broadly at least, to represent the high water mark of the appellants' argument on this part of the case. Generally it is asserted that given his past approach to the duties of his office the President would feel free to disregard the assurances in the Notes, "particularly in the light of any new information or evidence that was provided to him by the FBI or the security services as to the alleged risk posed by [either] Appellant" (Mr Ahmad skeleton, paragraph 3.17).
73. It is also said (but it is really part of the same point) that the President has demonstrated his commitment to the use of military commissions. There was much reference in the course of argument to the decision of the Supreme Court of the United States in Hamdan v Rumsfeld 126 S. Ct. 2749 (2006). The court there held that in the events which had happened the military commission constituted to try Mr Hamdan lacked jurisdiction for failure to comply with the Uniform Code of Military Justice and breach of Geneva Convention provisions. Mr Loflin has given evidence about the case in his further affidavit of 30 June 2006. Mr Fitzgerald submits that this decision makes no difference to the probable outcome for the appellants, because the President "is ... likely to return to Congress to seek the powers he thought he already had" (Mr Ahmad skeleton, paragraph 4.5).
74. In short we are asked, as I have already said, to hold that the United States would not honour the Diplomatic Notes given in each case, or at least that there is a substantial risk that they would not. How is this court to provide a conscientious response to such an argument? The starting point, I think, is the statement of Kennedy LJ in Serbeh v Governor of HM Prison Brixton (31 October 2002, CO/2853/2002) at paragraph 40:

"[T]here is (still) a fundamental assumption that the requesting state is acting in good faith."

The assumption, of course, may be displaced by evidence. We must consider whether it is displaced here.

75. I have already referred to Mr Keith's submission that the assurances in the Notes were given by a mature democracy. So much goes without saying. But the United States is also a State with which the United Kingdom has entered into five substantial treaties on extradition over a period of more than 150 years. Over this continued and uninterrupted history of extradition relations there is no instance of any assurance given by the United States, as the requesting State in an extradition case, having been dishonoured. In Bermingham & ors [2006] EWHC 200, [2006] 3 AER.239 and Welsh and Thrasher [2006] EWHC 156, [2006] 3 AER.204, decided in this court, Ouseley J and I were much concerned with a similar issue – or perhaps a particular application of the same issue – being called on in effect to decide whether the United States authorities could be relied on to abide by the specialty rule in relation to the prospective extradition of the appellants in those cases. Undertakings had been given on the point. In Thrasher Ouseley J said (paragraph 35):

"First, if there had been a routine disregard of the specialty rule, I would have expected that over the decades of extradition to the US from the UK, and in particular from those countries with which the US enjoys a land frontier, the UK Courts and the Courts of other sending states would have refused extradition in decisions which would be available to us. The 1972 and 2003 Treaties would not have been agreed in the terms on which they were agreed."

In Bermingham I said (paragraph 142):

"In the present case I consider that the undertaking confirms the position which the United States courts would anyway adopt. They will be satisfied, not least by the terms of this court's judgment, that the defendants' extradition is ordered on the precise basis that the accusation they will face at trial will be limited to, and travel no wider than, the case which is essentially formulated in paragraphs 10 and 23 of the Texas indictment and reflected in the charge drafted for the proceedings at Bow Street. And the American courts will be loyal to this expectation: not merely because in general they respect the specialty rule, but because by their own express jurisprudence… it is "essential to determine… whether the surrendering state would regard the prosecution as a breach"… This test is meticulously applied. It means, in short, that the American courts will give effect to the views of the Secretary of State and of this court (as to which there will be no room for doubt) of the requirements of s.95 of the 2003 Act."

76. I see no reason to doubt that the American authorities would likewise give effect to the views of this court as to the critical importance of the integrity of the Diplomatic Notes. Indeed the case may perhaps be said to be a fortiori: the Notes have the special status of having been issued out of the Embassy. The American authorities will appreciate, not least from the terms of the judgments in this case, that their request for the appellants' extradition to the United States has been acceded to expressly on the faith of the Notes, read and interpreted as this court reads and interprets them. Acts of the US executive such as have attracted the kind of criticisms described and levelled by Mr Stafford Smith and Mr Loflin, being, however, acts touching only the internal affairs of the United States, cannot in my judgment begin to constitute a premise from which this court should conclude that the Diplomatic Notes will not be fully honoured.
77. This view is lent some support by the circumstances of a case to which both Mr Keith and Mr Hardy referred. Mr Al-Moayad, a Yemeni national, was arrested in Frankfurt on 10 January 2003, a warrant having been issued on 5 January 2003 by the United States District Court for the Eastern District of New York. Mr Al-Moayad was wanted for having, among other things, supplied money and equipment to terrorist groups including Al-Qaida. The United States requested his extradition and there were extradition proceedings before the Higher Regional Court at Frankfurt. What was referred to as a "verbal note" was issued by the American Embassy providing an assurance that if he were returned Mr Al-Moayad would not be prosecuted before a military tribunal pursuant to Military Order No 1. The Frankfurt court allowed the extradition (I use this expression since, unsurprisingly of course, there is no exact fit between the procedural terminology here and in the German courts). Mr Al-Moayad brought a constitutional complaint before the Federal Constitutional Court. We have an English language text of the judgment downloaded from the internet, bearing the serial number 2 BvR 1506/03. Various points were taken with which we need not be concerned. The relevant finding is at paragraph 76:

"... [D]ecisive consideration must be given to the fact that the United States precluded the possible application of the Presidential Military Order of 13 November 2001 by their assurance of 22 May 2003. Thus, the United States have entered into the obligation, which is binding under international law, neither to bring the complainant before an extraordinary court after his extradition nor to apply the procedural law that is provided in the Order of 13 November 2001 nor to take the complainant to an internment camp. There are no indications to suggest that the United States would, upon the complainant's extradition, not comply with the assurance given."

78. So Mr Al-Moayad was extradited to the United States. There is a postscript. We have a copy of a piece in the New York Times for 29 July 2005. It shows that Mr Al-Moayad was, indeed, not subjected to Military Order No 1. He was tried before a federal court in Brooklyn. After a five week trial he was convicted of conspiracy to support Al-Qaida and other offences and sentenced to the maximum penalty of 75 years imprisonment. Condign punishment: but no subjection to Military Order No 1.
79. Before leaving this part of the case I should specifically address the contention that the appellants, if returned, might face the death penalty. None of the charges levelled against either appellant is punishable by the death penalty. As I have said the Diplomatic Note in Mr Ahmad's case contains a specific assurance that the death penalty will not be imposed and such an assurance is expressly contemplated as part of the mechanics of extradition arrangements between the United States and the United Kingdom: see Article IV of the 1972 Treaty. Accordingly, were the United States authorities to bring about a state of affairs (whether by way of a superseding indictment – as Mr Aswat contended - or trial by military commission, or by "extraordinary rendition" with which I will deal separately) in which either appellant was sentenced to death, that would violate the specialty rule or the assurances or both. The United States' adherence to the specialty rule has been firmly vouchsafed by decisions of the Supreme Court beginning with United States v Rauscher 119 US 407 decided in 1886. The general position is discussed in detail in Ouseley J's judgment in Welsh and Thrasher to which I have already referred. I will just cite this extract:

"84. The US Courts do not infer consent merely because there is silence. They do not turn a blind eye to what are obvious problems in the sending state's known attitude, whether from past extradition requests or from the particular case or Treaty involved. Rather… they adopt a realistic assessment of the sending state's attitude, in recognition of the specialty doctrine as a principle of international comity and out of respect for a foreign state's sovereignty. But the Courts do not treat it as a technical hurdle devised for the benefit of properly convicted criminals, enabling them to take points which truly belong to the sending state and which the Courts properly infer that the sending state does not take.

85. There is nothing in the cases which would justify the conclusion that the US Government or Courts would not respect the express limits in the UK-US Treaty or in the 2003 Act or in any judgment of this Court…"

Adherence to the specialty rule is required by the domestic law of the United States, which incorporates, as I have said, Article XII of the 1972 Treaty. In this jurisdiction it is right, of course, that it is the Secretary of State's duty under s.95 of the 2003 Act to safeguard the specialty rule, rather than that of the court. I have not set out s.95 given that the appeals against the Secretary of State's decisions have been withdrawn, as I have explained. But the fact that we may, for reasons given in Welsh and Thrasher and in Bermingham, be confident of the United States' general loyalty to the specialty rule tends to contradict Mr Fitzgerald's argument that the district judge should have found bars to extradition (such as potential exposure to the death penalty) where the claimed bar involves an assumption that the specialty rule will be violated.

80. On this part of the case I conclude for all the reasons I have given that the district judge was right to place confidence in the Diplomatic Notes.

EXTRAORDINARY RENDITION (POINT (2) ABOVE)

81. Mr Fitzgerald has supplied us with a document entitled "Rendition Appendix". It collates primary materials to be found elsewhere in the papers before us. One meaning (but not the only meaning) of the practice, or alleged practice, of extraordinary rendition consists in the transfer of a person, by the agency or with the complicity of the United States, to a foreign State in circumstances where there is a substantial risk that the individual in question will be subjected to torture or cruel, inhuman or degrading treatment.
82. Both appellants assert that if returned they will be at risk of being subjected to this practice. They say that there is a substantial body of evidence that the United States employs or participates in the practice. Amongst other materials in the Rendition Appendix reference is made to a European Parliament Interim Report of 15 June 2006 "on the alleged use of European countries by the CIA for the transportation and illegal detention of prisoners, and the alleged use of European countries by the CIA for the transportation and illegal detention of prisoners". It is stated that the Rapporteur

"is led to believe on the basis of evidence presented to the temporary committee that, in a number of cases, the CIA or other US services have been directly responsible for the illegal seizure, removal, abduction and detention of terrorist suspects on the territory of Member States, accession and candidate countries and for the extraordinary rendition of, amongst others, European nationals or residents; recalls that these actions do not correspond to known international law concepts and are contrary to the fundamental principles of human rights law;"

and

"is disturbed by the testimony given to the temporary committee by the Canadian citizen, Maher Arar, who was arrested by the US authorities, transferred by the CIA through a European airport and detained for twelve months in Syria, where he was subjected to torture;"

and

"is deeply concerned that all the work of the temporary committee so far seems to indicate that European airspace and airports have been used by CIA front-companies in order to bypass the legal obligations for state aircraft as set out in the Chicago Convention, thus enabling persons suspected of terrorism to be transferred illegally to the custody of the CIA or the US military or to other countries (including Egypt, Jordan, Syria and Afghanistan) which frequently use torture during interrogations, as is recognised by the US government itself".

83. The Rendition Appendix contains a good deal of other material. It includes an account of findings made by a Professor Toope for the purposes, as I understand it, of a Commission of Enquiry established to consider the case of Mr Maher Arar, referred to in the European Parliament Interim Report. Professor Toope found the account given by Mr Arar to have been accurate. Here is part of his conclusion:

"I conclude that the treatment of Mr. Arar in Far Falestin constituted torture as understood in international law. The interrogation techniques used on Mr. Arar, especially in the first three days but also sporadically in the first two weeks of his detention amounted to torture. The use of the black cable in particular, and the generalized beatings he endured, could only have been "intentional". They were meant to inflict severe pain and suffering. The pain was clearly physical. But in addition, the techniques of humiliation and the creation of intense fear were forms of psychological torture. This is particularly true of the strategy of blindfolding Mr. Arar and making him wait for the next interrogation session in a corridor or room where he could hear the screams of other victims. The threats to use other forms of physical torture, such as the tire and the chair, also amounted to psychological torture. This was particularly the case for a man like Mr. Arar who so clearly feared physical violence. The infliction of pain and suffering was for a purpose considered relevant by international law: the extraction of a confession."

84. There is much more besides. Reference is made to evidence given to the Special Immigration Appeal Commission in another case by Edward Oakden, a British diplomat, in which he was asked about the case of Mr Arar, and, more generally, said he thought that "the United States would take the view that it [sc. rendition] is a necessary instrument in the fight against terrorism" and agreed therefore that it was "one that they are prepared to resort to". There are descriptions of further, documented instances of extraordinary rendition which Mr Fitzgerald says form part of what is now a welter of evidence showing that the Americans indeed make use of this practice.
85. The materials collated in the Rendition Appendix are not the only evidence relied on by the appellants on this part of the case. The appellants' solicitor Gareth Peirce gives evidence of enquiries made into the case of a cousin of the appellant Mr Ahmad, Mohammed Noor Khan, who it is said disappeared after being arrested in Pakistan in the summer of 2004: Ms Peirce says it was two weeks before Mr Ahmad was himself arrested in the United Kingdom. In addition reliance is placed on evidence from Mr Loflin, who states (paragraphs 17 and 60 of his affidavit of 30 June 2006) that Mr Al-Marri was threatened with extraordinary rendition. Elements in Mr Stafford Smith's evidence are also relied on, but with respect I need not take time with the details. The overall case being made is as I have indicated that there is now a large body of evidence to the effect that the American authorities make use of the practice of extraordinary rendition.
86. The position of the United States is that while it does carry out renditions, it does not practise extraordinary rendition. However the premise of this position is a particular understanding of what extraordinary rendition involves. Mr Appleton, who is a federal prosecutor in the United States Attorney's Office for the District of Connecticut, says this (affidavit of 24 February 2005, paragraph 13):

"... I am advised by the Office of the Legal Adviser and the
Office of International Affairs that the United States is committed to complying with its international law obligations under the [Torture Convention]. Consistent with that treaty, the United States does not expel, return, or extradite individuals to countries where the United States believes it is more likely than not that they will be tortured."

This "more likely than not" is of some importance. As Mr Fitzgerald submits it is a palpably different test of the prospect of being tortured than that of substantial risk, which is applied in the Strasbourg jurisprudence on ECHR Article 3 (see Ullah, to which I have referred above). Thus it is said that the American approach as Mr Appleton describes it is perfectly consistent with the use by the United States authorities of rendition to States where there is a substantial risk, though not a probability ("more likely than not") of torture – and thus, in effect, extraordinary rendition.

87. The appellants' case, then, is that they may be subjected to extraordinary rendition with at least a substantial risk of torture in a third State, particularly if they are acquitted in the federal civilian court; and the Diplomatic Notes provide no assurance against such an eventuality.
88. If either appellant, having been acquitted in the federal court, were then removed from the United States to a third country where he faced a substantial risk of torture (never mind "more likely than not"), that would in my view be a plain violation at least of the spirit, and I would have thought the letter, of Article XII of the 1972 Treaty and (whatever one makes of the precise terms of the Diplomatic Notes) a gross breach of the trust subsisting between the United States and the United Kingdom.
89. The United States has submitted to the United Nations Committee Against Torture that

"The obligation under Article 3 of the Convention Against Torture requires a country not to return, expel or refouler an individual. For more than a decade, the position of the US Government, and our courts, has been that all of those terms refer to returns from, or transfers out from the United States."

So the view taken is that the Article 3 obligation does not apply to the position of persons seized outside the United States and their alleged treatment in centres in third countries, but applies strictly in relation to those within United States territory. As for the construction of Article 3(1), I have already set out its terms. It has the words "...where there are substantial grounds for believing that he would be in danger of being subjected to torture". That language is plainly close to the postulate of a substantial risk. Thus rendition of either appellant to a third country where he would face a substantial risk of torture would constitute a violation of Article 3 on at least one, perfectly viable, interpretation of the Article.

90. There is in fact no evidence whatever that any person extradited to the United States, from the United Kingdom or anywhere else, has been subsequently subjected to rendition, extraordinary or otherwise. All the evidence concerning the appellants themselves is that they are sought for the purposes of being tried in the federal civilian courts, and not for any collateral purpose. If convicted they may face the prospect of lengthy sentences. I have indicated that the issue on extraordinary rendition (point (2)) is closely allied to that relating to Military Order No 1 (point (1)) with which I have dealt at greater length, and so it is. I would reject Mr Fitzgerald's case on point (2) for reasons much the same as I have given for rejecting his case on point (1). I regard the material before us which relates to the Americans' treatment of instances where no question of extradition is involved as a wholly insufficient basis for concluding that the United States in these present cases would perpetrate so great a breach of trust (and I think of their legal obligations) as would be involved in their subjecting these appellants to extraordinary rendition.

"SAMs" (POINT (3) ABOVE)

91. Mr Loflin (second affidavit, 24 January 2005, paragraph 4) describes Special Administrative Measures ("SAMs") as

"special confinement measures that can be imposed on prisoners when there is a 'substantial risk that a prisoner's communications or contacts with persons could result in death or serious bodily injury to persons, or substantial damage to property that would entail the risk of death or serious bodily injury to persons.' [the quotation is from the United States Code of Federal Regulations] These measures may include, but are not limited to, housing the defendant in administrative detention, and/or limiting the defendant's correspondence, visiting rights, contacts with the media, or telephone use."

Further details of the effects of SAMs are given in a witness statement by Yvonne Ridley. It is said that although such measures are reviewable annually, they may in fact be continued indefinitely. Mr Fitzgerald submits that if they were applied to either appellant they would significantly impair his ability properly to prepare his defence and would amount to inhuman and degrading treatment. Mr Loflin's evidence is to the effect that he knows of no case in which a non-Muslim defendant has been subjected to SAMs. Mr Al-Marri, Mr Padilla and Mr Ujaama are all said to have been subjected to or threatened with SAMs. It is submitted that there is a substantial risk or likelihood that, as Muslim defendants charged with terrorist offences, the appellants would be subjected to SAMs; and they would be so subjected not upon any objective justification but because they are Muslims so charged.

92. There are thus, on analysis, three points relating to SAMs. (1) By the imposition of SAMs each appellant would be "punished, detained or restricted in his personal liberty by reason of his ... religion" and so there would be a bar to extradition under s.81(b) of the 2003 Act. (2) They would also be prejudiced in the preparation and/or conduct of their defence, principally by inhibitions placed upon communication with their legal advisers, and so there would be violations of ECHR Article 6 quite apart from s.81(b). (3) And there would be violations of ECHR Article 3 given that SAMs involve or may involve solitary confinement.
93. It is convenient to deal first with ECHR Article 3. I did not understand Mr Fitzgerald to press this aspect as part of the forefront of his case. It is clear from the jurisprudence of the European Court of Human Rights that solitary confinement does not in itself constitute inhuman or degrading treatment. Regard must be had to the surrounding circumstances including the particular conditions, the stringency of the measures, its duration, the objective pursued and its effects: McFeeley v UK 3 EHRR 161, paras 49-50. Applying this approach, the evidence before us does not begin to establish a concrete case under Article 3. The argument on SAMs is really about the other two points.
94. This part of the case involves no appeal to the Diplomatic Notes. SAMs would be imposed on the appellants, it is said, when they were in custody awaiting trial in the federal civilian court. The district judge was plainly troubled. In Mr Ahmad's case he said:

"The Government have not attempted to deny that special administrative measures could be applied. They do however point out these measures are essentially administrative and that there is judicial control to see that communication passing between the defendant and his lawyers, although monitored, does not reach the eyes and ears of those prosecuting. To that extent a limited lawyer/client privilege is maintained.

It is in relation to the application of special administrative measures that I find the greatest grounds for concern. However, examining the measures against the safeguards, I have concluded that a trial could still be properly and fairly conducted without breach of Article 6 of the Defendants' Convention Rights. Although Mr Loflin tells me that these measures are in practice imposed upon Muslims charged with terrorist offences, I feel unable to deduce from this that the measures would be imposed for the purpose of prosecuting or punishing the defendant on account of his race or religion."

95. I turn next to the point on ECHR Article 6. As is well known the United States Constitution vouchsafes a guarantee of fair trial whose terms, as I observed in Bermingham (paragraph 110), are strikingly similar to those of ECHR Article 6. The Sixth Amendment provides:

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence."

This does not expressly protect lawyer/client privilege, but it must be inherent in the measure. In any event recent authority of the Supreme Court cited by Mr Loflin himself (affidavit of 24 January 2005, paragraph 6) affirms its importance: Swidler & Berlin v United States 524 US 399, 403. And the imposition of SAMs is open to judicial scrutiny: US v Reid 369 F. 3d 619 (1^st Circuit 2004); US v Ali; E.D. Va Oct 24, 2005; US v El-Hage 213 F. 3d 74 (2^nd Circuit 2000).

96. The United States has provided express evidence that the appellants' Sixth Amendment rights and attorney/client privilege will be honoured and protected (see for example Mr Appleton, affidavit of 24 February 2005, paragraph 14). While Mr Fitzgerald submits that the district judge "erred in his assessment of the effect of SAMs on the trial process" (Aswat skeleton argument paragraph 94) there is as I understand it no challenge to his specific finding that "there is judicial control to see that communication passing between the defendant and his lawyers, although monitored, does not reach the eyes and ears of those prosecuting". In an affidavit of 13 March 2006 Maureen Killion, of the Office of Enforcement Operations at the United States Department of Justice, says this (paragraph 13):

"[T]he regulations [sc. the United States Code of Federal Regulations] require the Government to employ specific safeguards to protect the attorney-client privilege and to ensure that the investigation is not compromised by exposure to privileged material relating to the investigation or to defense strategy. #501.3(d)(3) [of the Regulations]. These protective requirements are designed to safeguard a prisoner's legitimate need to communicate with his or her attorney, while also helping to safeguard human lives."

97. In my judgment the evidence does not begin to show that the imposition of SAMs, were that to occur (as it may), would mean that either appellant would be "prejudiced at his trial" (s.81(b) of the 2003 Act), or that it would violate the appellants' rights under ECHR Article 6, not least given that a flagrant denial of justice has to be shown. Nor, for good measure, does it show (what Mr Fitzgerald must I think establish) that the United States authorities would knowingly perpetrate a violation of the Sixth Amendment to the American Constitution.
98. There remains the submission that the appellants would be subjected to SAMs on a discriminatory basis. The appellants' case to that effect depends upon Mr Loflin's evidence that he knows of no instance, and none has been identified, in which SAMs have been imposed upon a non-Muslim defendant. Ms Killion denies that SAMs are imposed only on Muslims (paragraph 17). The appellants say that Ms Killion is dealing only with cases of SAMs imposed on convicted defendants (as opposed to remand prisoners) and that the United States authorities, despite Ms Peirce's repeated requests, have declined to produce any figures to show how many Muslims and non-Muslims respectively have been subjected to SAMs.
99. Mr Hardy told us on instructions that Ms Killion's evidence was intended to refer to both pre- and post-conviction prisoners, and I see no reason not to accept this. At the same time no good reason has been advanced why Ms Peirce's request for the figures has been refused. Litigants in general, but governments in particular, ought to co-operate with the court's endeavour to reach an accurate, and therefore a just, result in cases where they are involved. That said, like the district judge I am quite unable to infer from Mr Loflin's statement that SAMs are applied only to Muslims that the United States authorities deliberately flout the Regulations so as to punish Muslim defendants for their religion.
100. I would reject this part of Mr Fitzgerald's argument, like the others.

CONCLUSION

101. For all the reasons I have given I would dismiss these appeals. Taking stock of the whole case, I would make these final observations. There are I think two factors which constitute important, and justified, obstacles to the appellants' claims. They are obstacles which might arise in other cases. The first is the starting-point: Kennedy LJ's observation in Serbeh that "there is (still) a fundamental assumption that the requesting state is acting in good faith". This is a premise of effective relations between sovereign States. As I have said the assumption may be contradicted by evidence; and it is the court's plain duty to consider such evidence (where it is presented) on a statutory appeal under the 2003 Act. But where the requesting State is one in which the United Kingdom has for many years reposed the confidence not only of general good relations, but also of successive bilateral treaties consistently honoured, the evidence required to displace good faith must possess special force. The second obstacle is linked to the first. It is a general rule of the common law that the graver the allegation, the stronger must be the evidence to prove it. In this case it has been submitted that the United States will violate, at least may violate, its undertakings given to the United Kingdom. That would require proof of a quality entirely lacking here.
102. This court acts on the faith that the United States will be true to the spirit and the letter of the Diplomatic Notes and the obligations of the 1972 Treaty. It goes without saying that they will be true to the US Constitution. The terms of this judgment express the legal expectations and understanding of the United Kingdom court. I apprehend that these will be well fulfilled and honoured when the appellants are extradited.

Mr Justice Walker:

103. I agree.