Gary McKinnon's extradition case seems to hinge on a Diplomatic Note about Military Commission Order No. 1 (.pdf) "enemy combatant status" .
If this Note is not acceptable to the Court, there can be no extradition, basically because of the perversion of the normal US civilian judicial legal system,
by the ongoing human rights scandal of Guantanamo Bay, which has been so counterproductive in terms of the war for "hearts and minds" against terrorism.
His hearing has now been adjourned until 14th March at 10am, by which time there should hopefully have been a decision on the strength / validity of a similar Diplomatic Note in the Babar Ahmad case, to be heard on Monday 20th February, and hopefully the results of the Judicial Review in the Enron 3 / NatWest bankers case.
Another personal account of Wednesday's Court proceedings:
Today at Bow Street Thomas Loflin took the stand first and was examined by Edmund Lawson. He was also given the opportunity to state just how small his misdemeanour was regarding late return of tax forms and that this did not in the slightest way preclude him from appearing as an expert witness or from practising law in the US, which he still does.Clive Stafford Smith then took the stand and was an excellent expert witness for the defense. He spoke about the probable effects were Gary to be subjected to Military Commission No.1 and the likelyhood of Gary being sent to Guantanamo and Clive gave us more than a flavour of what it's like there.
Clive Stafford Smith represents several people at Guantanamo and some of them are children who were aged fourteen years old, one of whom was kidnapped and taken there. The American government says there are no children there; Clive Stafford Smith explained that the American government has changed the language so that children are no longer referred to as children.
Speaking to Clive Stafford Smith in the outer part of the court, he also told us that many prisoners in Guantanamo have attempted suicide but America says there are no suicides or attempted suicides in Guantanamo. It turns out that America has changed the language and suicide is referred to as Aggravated Self Harm.
Why torture the English language in such a way, if they "have nothing to hide" ?
Clive Stafford Smith made it clear to the court that Gary would have no chance of bail in the US and might quite likely be subjected to Military Commission No.1 where the vast majority of prisoners remain for years without trial or access to the law. (at least 90/95% apparently.)Mark Summers for the prosecution when he heard what happens at Guantanamo, very honourably made it clear that although he was representing the US in this case that he absolutely distances himself from the torture and lack of Human rights that happens at Guantanamo. Judge Nicholas Evans warmly acknowledged that he realised that.
Judge Nicholas Evans is a breath of fresh air and comes across as fair and strong enough to be fair.
Mark Summers for the prosecution said that America had agreed last night to send a diplomatic note to the effect that Gary would not be subject to Military Commision order No.1. However it still hadn't arrived by lunchtime.
Why did they not get this Diplomatic Note sorted out weeks or months ago ?
In earlier evidence Clive Stafford Smith said that the president could change whatever he wanted once Gary was in America as the President doesn't regard himself to be bound by the American constitution.One prisoner in America who was represented by Clive Stafford Smith won his case but the president intervened and he was then made subject to Military Commission No.1 and was placed in a military facility without prospect of trial.
Had the diplomatic note been there today, I have no doubt that Nicholas Evans would have freed Gary as he made it clear that he would not send Gary to an unknown fate where he may be subjected to human rights abuses and that any diplomatic note would have to guarantee Human rights that could not be overturned once in America.
That evidence of someone who went through the US civil courts , but was then seized under Military Commission Order No. 1, must cast serious doubt on any Diplomatic Note.
Essentially these are issued by the State Department, and have been quite sufficient in the past to be regarded as a binding promise regarding "no death penalty" type extraditions (which would be illegal anywhere in the European Union).
However, the technical problem is that the State Department is trumped by the personal Executive power of President Bush, so only he could promise not to exercise this power to designate Gary McKinnon , or Babar Ahmad etc. as "enemy combatants", but, by convention, the US President, as Head of State, does not commit stuff like that to paper, that being the job of the State Department (it could be seen as the President making private treaties with foreign powers, which might be possibly treasonous). He could always change his mind later.
Since President Bush cannot stand for another term as President, he can do what he likes without fear of any political consequences.
Edmund Lawson was quite brilliant and obviously frustrated at the lateness of the US government informing him of a promised Diplomatic note that was supposedly on it's way.There is a judgement to be made on behalf of Babar Ahmad on Monday regarding how safe the diplomatic note really is. The decision on Monday will no doubt affect others including Gary. I'd much rather Nicholas Evans had been the Judge making that decision.
Judge Nicholas Evans pointed out that we've been extraditing people to America for one hundred years. (However, the Guantanamo/American military facility never existed then)
Gary's hearing has been postponed until the 14th March at 10am and by then we will hopefully have a decision on the Judicial Review Re-the Enron 3.
Gary shook hands with Thomas Loflin 111 and with Clive Stafford Smith as they wished him luck. Gary is very aware and very pleased that he has such an excellent legal team.
In the meantime we await the decision on Monday re-Babar Ahmad and the safety or not of the diplomatic note. Good Luck Babar!!! Very sad that you've been arrested without bail and have already spent such a long time in prison.
Let's hope that we have British judges wise enough to throw out this one sided excuse for a treaty and to give British citizens rights on a par with the US.