Extradition to the United States from Britain—Haroon Rashid Aswat Update

British Magistrates Court Judge Timothy Workman has approved the extradition of Haroon Rashid Aswat to the United States.^[1] When we last mentioned Mr. Aswat, we noted that there were serious concerns that, despite assurances from the US Embassy in London, Mr. Aswat would be sent to Guantanamo Bay.

Judge Workman ruled that he was “satisfied that the grounds for extradition were proper, and that the final decision to turn over [Mr.] Aswat to the US authorities rests with Home Secretary Charles Clarke.”^[2] Furthermore, he noted that the diplomatic note provided by the US Embassy “assured the British government that Aswat would 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.’”^[3] Judge Workman also noted that the note, which “does not provide any personal protection” to Mr. Aswat, pledged that he would not be prosecuted by a military commission as an enemy combatant; Judge Workman is “satisfied that it does bind the government of the United States of America which in these terms includes the president.”^[4]

Mr. Aswat is planning to appeal the decision to the High Court.^[5]

An interesting tidbit about Mr. Aswat is that his arrest in and deportation from Zambia “last July sparked media speculation that he might be implicated in suicide attacks on London transport that had killed more than 50 people just days earlier. But British police said he was not a target of their investigations into the London bombings.”^[6] On July 31, 2005, the Sunday Times in London noted that US intelligence sources “believe [Mr. Aswat] assisted or masterminded the [July 7 and 21] London attacks.”^[7] On the same day, the Telegraph reported that US officials were irritated with British officials for not seizing Mr. Aswat in South Africa to have him extraordinarily rendered:

"The discussion was whether or not they would render him," a US official said. "He's got UK papers and they said you can't render somebody with UK papers." The frustration of the US authorities deepened when the South Africans subsequently lost track of Aswat.

British officials have countered that they would have co-operated if the US had pursued an extradition request over the Oregon charges but that their problem was with the American desire for a rendition.^[8]

After Mr. Aswat was deported from Zambia, he was formally arrested in Britain, and extradition hearings were scheduled.^[9] The fact that Mr. Aswat was deported from Zambia, rather than extradited, clears up some of the potential problems that could have arisen had Mr. Aswat been extradited from Zambia. The official reason given for the British government’s interest in Mr. Aswat is that they wanted to question him about his connections with international terrorism and al-Qaeda.^[10] Ordinarily, however, extradition cannot be had for simple questioning.^[11] Furthermore, in the event that Mr. Aswat had been extradited rather than deported from Zambia, if there is a third-party clause in the extradition treaty between the UK and Zambia, it likely prevents the surrender of the person from the Requesting State (here, the UK) to a third State (here, the US) “for an offence committed before that person’s surrender” unless the Requested State (here, Zambia) consents to that surrender, or the person has had an opportunity to leave the territory of the Requesting State after final discharge and has not done so.^[12]

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[1] Judge Approves British Terror Suspect’s Extradition to US Agence France-Presse, Jan. 5, 2006.
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Court Rules Terrorism Suspect Can be Sent to U.S., Reuters, Jan. 5, 2006.
[7] Richard Woods, et al., Tangled Web That Still Leaves Worrying Loose Ends, Sunday Times (London), Jul. 31, 2005.
[8] Philip Sherwell, et al., Britain and America Clash Over Tactics, Telegraph, Jul. 31, 2005.
[9] US Files “Terrorist” Charge Against Briton Haroon Rashid Aswat, Forbes.com, Aug. 8, 2005.
[10] Sherwell, supra note 8.
[11] See generally, US Requires Proof for Samira’s Extradition, Rediff.com, Nov. 22, 2005 (“You don't extradite people for questioning,” says a US administration official regarding any potential extradition request for Samira Jumani, who we discussed here).
[12] See, e.g., Extradition Treaty, Sep. 16, 1999, U.S.-S. Afr., art. 18, S. Treaty Doc. No. 106-24 (2001); Extradition Treaty, Jul. 25, 1997, U.S-Zimb., art. 14, para. 2, S, Treaty Doc. No. 105-33 (2000); Extradition Treaty, Jul. 10, 1996, U.S.-Pol., art. 19, para. 2, S. Treaty Doc. No. 105-14 (1999).