Britons Hope Obama Will Address Controversial US-UK Extradition Treaty


LONDON -- Last October, shortly after midday, Theresa May, Britain's Home Secretary, stood up in the House of Commons and made an announcement that, in the words of Gary McKinnon's mother, required "guts".

May announced that she was withdrawing the extradition order against McKinnon on computer hacking charges in the United States, a contentious issue that she and her government had inherited more than a decade after the systems administrator and his family were first told he faced trial abroad for hacking into U.S. military and NASA computers between 2001 and 2002.

"As soon as Theresa May had the guts to reject Gary's extradition, you had [US Attorney General] Eric Holder saying 'this is not on'," McKinnon's mother, Janis Sharp, told The Huffington Post UK.

Holder has admitted he was "disappointed" with the decision -- he reportedly refused to take May's calls immediately after she declined to extradite McKinnon on health grounds -- but has memorably denied feeling "completely screwed" by the Home Secretary's decision not to send the 46-year-old Brit, who has Asperger's syndrome, to the U.S. for trial.

Tony Blair's Labour government created the 2003 US-UK Extradition Act in the wake of the 9/11 terrorist attacks in the United States. The law allows the U.S. to extradite UK citizens for breaking American laws, even if the offence was committed in Britain -- even if it was committed in Britain by a UK citizen.

British politicians and the families of Britons facing trial abroad have criticized the act as unworthy of the "special relationship" the US and Britain arguably share.

According to Home Office figures, 95 British citizens have been taken to the US for trial under the 2003 law, while 44 people in America have been released for trial in Britain. British anti-extradition campaigners question those figures, arguing that they overcount the number of people extradited from the US to the UK because some of those suspects have dual nationality.

Regardless of the exact numbers involved, how President Barack Obama plans to address concerns in the UK about the act in particular and extraditions more generally is of great interest here.

A ComRes poll, conducted on behalf of the British human rights group Liberty, found in September 2010 that 83 percent of British MPs surveyed agreed or agreed strongly that changes should be made to extradition laws, and 66 percent agreed or agreed strongly that extradition should occur only if the requesting country first provides evidence in a UK court.

Hundreds of thousands of people in the UK have signed petitions supporting individual fights against extradition, with 149,000 signing the petition against the extradition of one British citizen, Talha Ahsan, and 250,000 against the extradition of another, Richard O'Dwyer.

There is much support for change across all parties in the House of Commons, most recently with the Home Affairs select committee voting to support a change in extradition arrangements in March.

For her part, Sharp said she has lived with 10 years of very real fear for her son, who she said has withdrawn "further and further" into himself under the cloud of a possible extradition.

"Gary has never gone abroad," she said.

"The fear of your son being taken to me reminds me of how Jewish people must have felt when they were dragged away by the Germans.

"How slaves must have felt. You can be dragged away from your own country, your own people, without any evidence. You lose your flat, you lose your job, you lose everything you've ever known. You are suddenly in a country when you don't know anyone, you are an enemy of the state," said Sharp.

Others subject to the act's mandates have faced similar hardships. Talha Ahsan and his family fought for six years before he was sent to the U.S. to face terrorism charges in October 2012.

Ahsan also has Asperger's syndrome, and was arrested in July 2006 for allegedly being involved with Azzam Publications between 1997 and 2004. Azzam, according to the US Attorney's Office for the District of Connecticut, "allegedly provided material support to the Taliban and the Chechen Mujahideen through various means, including the administration and operation of various web sites promoting violent jihad." Ahsan is accused of "providing, and conspiring to provide, material support and resources to persons engaged in acts of terrorism in Afghanistan, Chechnya and elsewhere ... through the creation and use of various internet websites, e-mail communications, and other means," according to the indictment.

One of those websites was located on a server in Connecticut. Ahsan has never visited the US, but is accused of conspiring to provide material support to terrorists and to kill, kidnap, maim or injure persons in a foreign country.

"It's like a collective punishment for the whole family, before anyone's been convicted of anything. It's psychological hell," said his brother, London-based art curator Hamja Ahsan. "The UK is not the 51st state of America and should be respected as such."

Even the most pro-American MPs, such as Dominic Raab, a Conservative member of Parliament's Joint Committee on Human Rights, see the flaws in the extradition arrangement.

Raab has spoken out against the extradition of UK citizens who commit crimes on British soil to America. While he believes the Obama administration has shown "modest but welcome flexibility", there's more to be done, he said.

"Ironing out the creases so it operates more fairly is important for Britain, won't harm US law enforcement, and removes a diplomatic thorn in the side of the special relationship," Raab told HuffPost UK.

Specifically, the MP wants a subtle change that wouldn't require an amendment to the act, just Obama's agreement.

"The critical change is to allow the UK to introduce a 'forum' clause, so in cross-border cases where the alleged criminal activity all took place here, a judge has grounds to deny extradition in the interests of justice," said Raab. "We wouldn't need to amend the UK-US treaty for that; we just need acquiescence. The Home Secretary has announced this change, and I haven't heard any public objection [from the U.S. government]."

Even so, for some British families like the O'Dwyers, Obama has simply not done enough. Julia O'Dwyer's son Richard was accused of setting up a website that violated copyright laws by offering free access to films and TV shows, and American authorities sought to extradite him in May 2011.

Richard O'Dwyer avoided trial in the US by making a deal in which he agreed to travel to New York in November 2012 under a deferred-prosecution agreement, which required him to pay a small fine and agree to never infringe again on a copyright. He has not been convicted of any crime.

Julia O'Dwyer had petitioned the White House since 2010 to save her son from the personal burdens and legal implications of extradition. Her son was also the subject of an online petition against his extradition, launched by Wikipedia founder Jimmy Wales. More than 253,000 people signed it.

O'Dwyer said the White House has remained silent about her son's case, as did the president himself when he was asked directly about it during a Google hangout early last year.

The president said that he did not get personally involved, but added, "We want to make sure that intellectual property is protected, we want to make sure that the creative works of people in this country aren't expropriated, but we want to do it in a way that's consistent with internet freedom. We're going to keep on working on it."

"Obama has done nothing on extradition, and he stated at the Google hangout when asked about Richard 'the president doesn't get involved'," Julia O'Dwyer told HuffPost UK via email.

Not all see the extradition act as one-sided. In October 2011 an independent legal committee appointed by the Home Secretary found the laws governing the extradition of Brits to be fair, according to former Court of Appeal judge Sir Scott Baker. Baker, who led the review, said that the laws were "misunderstood" and the treaty "does not operate in an unbalanced manner".

In the wake of the Baker review and prior to a debate in the House of Commons over extradition, Louis Susman, the U.S. ambassador to the UK, wrote in an op-ed in The Daily Telegraph that "the existing US-UK Extradition Treaty works, is fair and balanced, promotes justice in both countries, and does not need to be changed."

Susman said that UK citizens were protected by the "probable cause" standard in the U.S. He also noted that "In all extradition cases, the UK authorities always begin by considering whether an individual can and should be tried in the UK instead of being extradited. Once the UK authorities decide that the case should be tried in the U.S., all extradition hearings are then held in UK courts -- as are subsequent appeals. It is only when these avenues have been exhausted -- when UK prosecutors, the courts, and the Home Secretary have all affirmed that the request is proper -- that an extradition goes ahead."

Still, for many here, extradition remains a hot-button issue, and some think action from Obama would enhance his stature internationally -- especially in comparison to his predecessor, George W Bush, who had low popularity ratings overseas.

Karl Watkin MBE, a wealthy and prominent British entrepreneur, said the average cost for families fighting trial abroad is around $200,000 to $300,000 (£124,000 to £186,000), and he has invested £250,000 (about $401,000) of his money to fight extradition cases.

"Obama needs to decide if he is a leader or does he share the same values as Bush," Watkin said. "If he is truly a leader, he should start by agreeing to tear up the insidious extradition treaty with the UK.

"Obama was sold to the world as the first president with a truly international perspective. Currently he will go down in history as even more myopic than his predecessor."

The British government has recently taken efforts to review extradition cases more closely. In October 2012, Home Secretary May announced the extradition treaty would be changed to require a court hearing to decide whether a person should stand trial in the UK or abroad.

Melanie Riley, co-ordinator of the anti-extradition activist group Friends Extradited, said that "warm words about the importance of cross-border cooperation" don't help defendants taken thousands of miles away from home or their families.

"President Obama, as a lawyer himself, may recognize the irrationality of seeking the extradition to the US of British citizens on allegations of criminal conduct in the UK, rather than allowing a British trial under British law," she told HuffPost UK.

"He may also reflect that the reverse scenario is highly improbable. If the UK were to seek the extradition of an American for alleged criminal conduct on American soil, Obama might well concede the US authorities would not authorise the extradition request -- so why does the Department of Justice consider it so wrong for the UK to prosecute our own?"

And Sharp, McKinnon's mother, said, "A bit of compassion from the government across the pond wouldn't go amiss."

This article is part of a series produced by The Huffington Post that closely examines the most pressing challenges facing President Obama in his second term. To read other posts in the series, click here.

Before You Go