…the Roman Empire allowed for extradition as between its various provinces. Insofar as other independent nations dealing with the Roman Empire were concerned, however, it would seem that extradition was probably confined to enemies of the State.
The case of Julian Assange and his self-confinement in the Ecuadorian embassy seemed at first sight a perfect example of judicial stasis and his existence between states a place of modern purgatory. But his is such a self-mythologised case and the industry around him is so established that I turned away from him for this blog but not from his cause: extradition from the UK to US and more generally, the elements of extradition as a type of modern stasism.
The innate inequalities in the extradition treaty between the UK and the US have been exploited by US prosecutors because there are deep differences between the intent of the treaty and the operation of the treaty in practice. The intent was that the treaty would be used to deal with terrorists, violent offenders, and sex offenders. Therefore, the UK government accepted the inequality of the threshold for action in the belief that this would be needed in the “war on terror”. The operation has been entirely different from this intent.
The British Extradition Act 2003 states that “The Secretary of State must order the person’s discharge” if the probable cause test is met. The equivalent in the US penal code states: “The District Attorney may order the person….to be tried” if the reasonable suspicion test is met. In the United States the Fourth Amendment to the Constitution ensures that arrest may only lawfully take place if the probable cause test is satisfied: in the United Kingdom the test is reasonable suspicion. Defenders of the treaty argue that this makes no difference in law. However, in operation it does and has made a significant difference. Since the treaty was passed 135 defendants have been extradited from the UK to US, 99 of them for non-violent crimes and only 11 from the US to the UK. As Alun Jones QC has written:
A potential extraditee in the USA has the constitutional safeguard that a judge must examine the quality of the evidence. But in a request here, a short recitation of the allegations suffices. The Home Office and the US authorities always claim that sufficient evidence is required in extraditions both ways; for extradition from the US, they say, “probable cause” must be shown before the request can be made. But this means the quality of the evidence is assessed in extraditions both ways by the US courts; but in neither case by the UK courts. There’s the imbalance…The integrity of our extradition law requires equality….The Scott Baker Review, commissioned by the Home Office, calls only for prosecution guidelines on “forum” matters. We need hard “black-letter” law….“Human rights”, in extradition, are usually a mirage, and guidelines can be conveniently ignored.
There is no subjective judgement here, empirically more people have been extradited from the UK to the US than from the US to the UK, it is not an unreasonable assumption to make that this is because it is much easier to extradite in that direction than in the other. The context is therefore inequitable and as a matter of public policy the treaty is flawed for this reason. But there are other and deeper differences between the way in which the treaty is applied in practice.
Unequal and Unjust
The treaty has been used as an extension of judicial activism with a broadly economic interest by the government of the United States, in fact the treaty is part of the extraterritorial jurisdiction that the Department of Justice has pursed in commercial matters. The consequence is that the individuals who are extradited from the UK to the US endure the harsh, unsafe, and often inhumane conditions of US detention would usually be facing civil charges in the UK. Further once in the US defendants are put under extreme psychological pressure by the excessive prison tariffs that are attached to crimes which carry light or no custodial sentences in other jurisdictions. In turn these tariffs and the inherent inhumanity of the US penal system amount to a situation akin to cruel and unusual punishments, if not torture, forcing the individuals to plead away their rights in a bargain for lower sentences. Accepting guilt which either does not exist or is unproven for criminal charges that in other jurisdictions would be civil charges.
Let us consider two current examples.
Dr Mike Lynch and Hewlett-Packard
A recent case involved the attempted extradition of Dr Mike Lynch who sold a software company to Hewlett-Packard in 2011 for £9 billion and was accused of overpricing the company. He faced a civil trial in the UK and at the time of writing is awaiting judgment. The DOJ is also seeking his extradition to face criminal charges on exactly the same issues. In a debate on extradition which focussed on this case, David Davis stated that:
This case is important because it is characteristic of the way the American judicial system operates to favour American business. The United States has a tradition of using its broad extradition treaties to cast a wide legal net around the world. As with Mike Lynch, many of these cases are only tenuously linked to the United States. Cases such as those of Ian Norris, the former head of Morgan Crucible, or the NatWest Three all have common themes: they are all British citizens, the alleged crimes all took place on British soil, the United Kingdom system failed to protect them, and the US authorities ultimately got their way.
Arif Naqvi and the Abraaj Case
Another current case carries even more elements of unsafe prosecution and overt persecution. But because the defendant was involved in private equity and was from Pakistan, his cause has not attracted the same attention or his rights the same kind of defenders as Assange or Lynch.
Arif Naqvi entered the stasis of modern purgatory because he challenged the modern American Empire and its Emperors. His company, the Abraaj Group, a leading private equity firm based in Dubai which emerged as the dominant force and voice of developing markets, sits destroyed with the pieces gobbled up by its western counterparts. Meanwhile, he is under house arrest on what was the highest bail demanded in the United Kingdom’s history, awaiting extradition to a show trial in the USA on charges that carry a heavy tariff of several hundred years of imprisonment. His lawyers argued in the extradition court in Westminster that his human rights and personal safety cannot be guaranteed.
The moral of the story is that if you do what you are told on the big things then you can get away with the little things. But if you suffer from what some would call hubris and others courage, and do not do what you are told, then an example has to be made of you – the level of example you become simply depends on how embedded you are in the Empire – that is, whether you are on the fringes of expendability or part of the beating heart…History gives credence to the fact that if you are an American at Goldman Sachs, UBS or Deutsche Bank and if you get caught doing what Naqvi is alleged to have done, you get fined, rapped over the knuckles, then allowed back to work. Organizations routinely counter criminal charges with fines and life goes on. But my feeling is that there is much more to this story.
As a Pakistani born Muslim, operating out of the Middle East, he was always on the fringes and was going to be rendered expendable if he stepped out of line. Abraaj’s Naqvi had to go for three main reasons: his company Abraaj began successfully operating beyond the ambit it was being afforded (and he believed he was too good to fail), he was not “one of us” (even though he often walked the walk at global elite love-ins like WEF) and most importantly he was unwilling to do Caesar’s bidding.
In this context there is clearly a great deal of pressure on the prosecutors and the Department of Justice to secure this extradition and that of Assange and Lynch. In Naqvi’s case this has resulted in a series of concessions from them. Naqvi’s legal team challenged the extradition on Article 3 of the European Convention on Human Rights, which outlaws “inhuman or degrading treatment or punishment.” They produced witnesses from the prisoners to which Naqvi would be sent to await trial in the US, the Manhattan’s Metropolitan Correctional Centre (MCC) and Brooklyn’s Metropolitan Detention Centre (MDC), including one who was a senior executive there, who supported their case that the prisons were unfit. The MCC was the facility in which Jeffrey Epstein committed suicide. The DOJ promised in response that Naqvi would be granted bail and if he wasn’t granted bail he would not be held at these places. The DOJ has never offered these kinds of concessions before, partly because they are largely meaningless. The DOJ does not grant bail, a judge does, and the DOJ cannot determine where the prisoner will be held but they can make a request. However, the DOJ undertaking that they would not seek pre-trial detention was indicative of how desperate they are to resolve this case. The extent to which they can be trusted in these undertakings, given their desperation should be a cause for concern. The same prosecutor’s office which is seeking his extradition has received an utterly damning Opinion and Order by Judge Alison J Nathan who is presiding in case of the USA against Ali Sadr Hashemi Nejad. The order was that every member of the prosecuting team had to read her opinion about their conduct which amounted to serious malpractice:
The Court has recounted these breaches of trust, proposed some systemic solutions, urged referral to the Office of Professional Responsibility for admitted prosecutorial failures apparent in the existing record, and ordered further fact-finding. The cost of such Government misconduct is high. With each misstep, the public faith in the criminal-justice system further erodes. With each document wrongfully withheld, an innocent person faces the chance of wrongful conviction. And with each unforced Government error, the likelihood grows that a reviewing court will be forced to reverse a conviction or even dismiss an indictment, resulting in wasted resources, delayed justice, and individuals guilty of crimes potentially going unpunished.
House Arrest and Extradition
House arrest is a form of modern purgatory which exists to save the state money and the prisoner jail. Its primary purpose is to mitigate against the risk of flight for someone on bail. It is better than prison, but it has a particular kind of torture to it. Some people living under house arrest cannot leave their home for more than a few hours. Some can move about within areas that do not contain airports and ports. All must wear electronic tags that do not work well and are a modern form of shackle. This is not about guilt or innocence, it is about the conditions we want to tolerate for financial and other kinds of crime that seem driven by geopolitical agendas rather than questions of law and justice or even the needs and desires of any victims because house arrest is often part of the process of extradition to countries like the US in which the justice system has been broken by politics. In reality, it is a constriction and suffocation of the defendants ability to fight back.
If and when Assange, Lynch and Naqvi are extradited, they will likely be transported to a federal penitentiary, where they will await a media-frenzied show trial that will likely only take place years after their arrival in the US. In the days of Rome, the subjects of the Emperor had to pay tribute to enjoy the protection and the civilisation of the Empire. Which was fine when the Emperor was wise and the rule of Rome enlightened. But what happens when Nero takes over?
From the material that is available in the public domain it is unlikely that any of these men would receive a fully fair trial in the US. Lynch may well be ok because of the judgement that comes in the UK on his case might prevent his extradition. Assange has elected the life of a martyr and is ensured maximum attention and maximum protection. The real victim here is, ironically, the third way capitalist, Arif Naqvi. I would suggest that it is impossible for Arif Naqvi to receive a fair trial if he is extradited to the US. I make no statement on his guilt or innocence. On the face of it, this is a politically and economically incentivized prosecution, by the US government in pursuit of financial interests. But there seems to be much more to this story than the small amount I have found so far on google, there must be something deeper at work here than just the interests of private equity firms. After a likely guilty verdict in a US court, because of his nationality, he will be placed in a medium to high security prison with rapists, murders, drug kingpins and thugs. US citizen equivalent cases would likely result in open prisons which resemble a golf resort. And so, I would suggest that of these three it is the Pakistani man, the most obvious “other”, who stands the least chance of having his human rights protected or his persecutors held to account. I am going to continue looking through the mountains of coverage of this case as we move into the second two weeks of lockdown and will write on this case of the stasis of modern purgatory again.
Arif Naqvi is in his house arrest stasis, because he did not render unto Caesar that which is Caesar’s but I wonder exactly what it was he was holding back?
“You don’t understand? Tell me, have you never read Karl Marx? Ah yes, of course… These days only we captains of industry study Das Kapital. Especially where it says: ‘The only true power is financial-economic power, in other words, holding companies, markets, banks, commodities… In other words, Capital.’ And then he adds a sentence, which children should memorise and sing in the playground: ‘The sacred laws of this state… the economic state… are written on watermarked paper money. So, government, state and institutions are nothing other than supporting services, for the real power, which is economic power.’ Supporting services… you see? So, Aldo Moro was sacrificed in order to save the respectability of the aforementioned financial state, not for the supporting services, for which nobody gives a damn! Get it into your heads: I am the state! The capital which I represent is the state! It is my dignity that you must save, even at the cost of your own lives! How could they think of sacrificing me, in order to save the state? For I am the state!
Dario Fo, Trumpets and Raspberries