In 2003 a new Extradition Act was fast-tracked into UK legislation without formal consultative parliamentary process, scrutiny or debate. The Act made provisions for a unilateral agreement between the US and the UK whereby the UK would be expected to extradite any individual to the US on request without the need for the US to provide prima facie evidence, (but to just invoke reasonable suspicion), and thus without allowing the individual called to challenge any evidence provided by the US in a British Court of Law. In contrast, for any requests made by the UK for extradition of subjects from the US, UK authorities are expected to provide enough evidence to demonstrate ‘probable cause’. Accordingly, since its inception the US-UK Treaty has been the centre of much controversy most notably because it has made explicit the hegemonic position of the US in Anglo-American relations and brought to popular attention the limits of UK national sovereignty.
A backbench debate on the issue of extradition took place in December 2011, where after initial reluctance the cases of Babar Ahmad and Talha Ahsan were incorporated. Here there was clear opposition against the Treaty with MPs of all political persuasions arguing that the legislation was completely at odds with the liberal principles of the British justice system and greatly eroded ‘the liberty of our citizens’. In his introduction to the discussion Dominic Raab, Conservative MP for Esher and Walton, argued that what was under threat was the ‘cornerstone of British justice, innocent until proven guilty’, asserting that ‘in taking the fight to the terrorists and the serious criminals after 9/11, the pendulum [had] swung too far the other way’ (House of Commons Debate, 2011, c82). Of ultimate concern was how a legal process stripped of all intent to due process, designed for targeting ‘the terrorist’, could also encompass the (white) British citizen. The consequence was to call for adjustment to legislation that was being delivered in a ‘one size fits all’ manner so that it could better distinguish between the two. The legitimacy of extradition was thus determinant on its ability to racially distinguish, to invoke racism– racial division and stratification – to regulate the distribution of death (social and real). The House of Commons debate made clear that the extradition process was unfair because the distinction being made between those who must live and those who must die appeared racially incoherent.
However, of the numerous violations which the state carries out at its discretion, it is interesting that extradition is one of the few acts which has prompted largescale upset and dissent. Between 2004 and July 2011, 73 UK nationals or dual nationals were surrendered from the UK to the US (Baker et al, 2011), not all on terror-related offences. In this process it has become apparent that there have been quite different responses to the indictments for Muslims accused of terrorism compared with the White British citizens being requested on other charges. It is the more widespread use of extradition which has brought the issue so much attention, prompting national debate and calls for significant reform. As David Davis MP remarked:
We should keep in mind that the rather draconian process that we have, which was put in place to defend us against terrorism, does not appear to have had much impact in that respect. In practice, the outcome is much more mundane. The truth of the matter is that we will have far more Gary McKinnons extradited than Osama bin Ladens (House of Commons Debate, 2011, c91).
When the European Court ruled in 2012 that the proposed prospect of 80-100 years in solitary confinement was not tantamount to torture and that consequently five Muslim men accused of terrorism-related charges could be extradited to the US, the decision received national public approval. This was in stark contrast to the public support for halting the extradition of Gary McKinnon, a campaign that was led by the Daily Mail. In October 2012, ten days following the extradition of the Muslim men, when the Home Secretary ruled that McKinnon would not be extradited it was viewed as a victory for British Justice. But the short sightedness of these celebrations meant that the populace failed to recognise the connections between the repeal of the human rights of those accused of terrorism and the repeal of their own human rights.
Nisha Kapoor, from The State of Race (Palgrave-Macmillan 2013)