A British man could be sent to Guantánamo Bay and held indefinitely if he is extradited to the US to face terror charges, a court heard today.
Haroon Rashid Aswat, 31, who grew up in Dewsbury, west Yorkshire, is accused of trying to set up an al-Qaida terrorist training camp in Bly, Oregon.
The US embassy has previously issued a diplomatic note containing an assurance that Mr Aswat will not be detained indefinitely without trial, tried in a military court or treated as an enemy combatant if he is sent to the US.
But a US lawyer told an extradition hearing at Bow Street magistrates' court in London today that he did not believe the note was binding on the US president, George Bush.
Thomas Loughlin said that, in his view, the "risk remained" that Mr Aswat would be designated as an enemy combatant under Military Order No 1 if he were extradited. This would mean he could be sent to a military prison, probably Guantánamo Bay, Mr Loughlin told the court.
He also said there was an "overwhelming risk" that Mr Aswat would be subjected to controversial "special administrative measures". These include solitary confinement, the cutting off of contact with the outside world and the placing of limitations on the confidentiality of his discussions with his lawyers.
Asked by Mr Aswat's counsel, Edward Fitzgerald QC, whether the diplomatic note removed the risk of such treatment, Mr Loughlin said: "In my view the risk remains."
He said: "I saw the note for the first time yesterday. It said not only would he not be turned over to a military commission, it says he would not be designated as an enemy combatant.
"But I do not think that removes the risk. Under the terms of the Presidential Military Order, he and he alone is the only official in the US government who has the decision whether to designate or not to designate a non-citizen as an enemy combatant.
"That [the note] does not bind President Bush or successive presidents."
Asked what would happen if the president signed a declaration categorising Mr Aswat as an enemy combatant, Mr Loughlin said: "He could be held indefinitely in military custody without charge or trial of any kind - possibly until the war on terror is over."
He would probably be sent to a military prison as chosen by the US secretary of defence. "Guantánamo Bay is the largest military prison that holds people designated under that order," Mr Loughlin added.
"It is likely it would be Guantánamo Bay but it does not have to be."
Mr Aswat could also face trial by a US military commission, which he said "lacks very many of the safeguards that people both in the US and UK regard as essential to due process".
Mr Loughlin said a military commission could convict someone on hearsay evidence or on evidence obtained by torture. The only appeal which could be made would be to the president himself, he added.
The court was told there was "no question" that the allegations against Mr Aswat meant that he came within the parameters of Military Order No 1.
Mr Loughlin said one of the allegations - that Mr Aswat is or was a member of the al-Qaida terror group - was sufficient by itself for him to be designated as an enemy combatant.
Asked if Mr Aswat would be subjected to special administrative measures if extradited to the US, Mr Loughlin replied: "It is extremely likely. In fact, I would be shocked were he not."
Mr Aswat was arrested in Lusaka, Zambia, in July. He has denied any involvement in terrorism. His extradition case is being heard before senior district judge Timothy Workman.