Despite years of delicate legal negotiations between the British and American governments, the al-Masri case is the first major test of a new U.S.-U.K. agreement that allows extradition cases between the two countries to be put onto a fast track that cuts short long-established rules of evidence, meaning al-Masri won't hear the details of the nine charges against him until he appears in a U.S. court.
Some of the charges carry the death penalty, and while the U.S. authorities have reportedly guaranteed the British government they won't be applied if al-Masri is found guilty -- a requirement, since British law does not allow extradition if the accused may be executed in a foreign country -- lawyers for the Egyptian-born British citizen are expected to claim that primacy of U.S. law will squash such guarantees once al-Masri arrives in America.
It may not have helped the extradition process that U.S. Attorney General John Ashcroft made no mention of the agreement when he held a press conference about al-Masri's arrest Thursday, but did say the cleric could face the death penalty.
And it may also not have helped the U.S. case that Raymond Kelly, New York's Police Commissioner and thus a potential part of the U.S. prosecution, described al-Masri as the "real deal" in terrorist terms and that he was "a freelance consultant in terrorist groups worldwide."
When a BBC Radio interviewer quoted Kelly's reported words to British Home Secretary David Blunkett on Friday, Blunkett answered: "If I'd said what you just quoted from New York, I would immediately have had to rule myself out of being able to take action against him because in our system we have very clear rules on the admissibility of evidence and the presumption of guilt. ... You have to be careful that your statements are not the cause of your defeat."
Blunkett has already tried to get al-Masri deported by using a new law to strip him of the British citizenship that he obtained through marriage in 1986, but that case has been grinding through appeals over the past 18 months. A number of other extradition cases involving terrorist suspects have been going on for up to six years.
Al-Masri has been a pain in Britain's side since at least 1998, and it has been a public and diplomatic embarrassment to the government that he has been allowed to continue preaching his words of hate and Muslim extremism in the street outside Finsbury Park Mosque even after being ejected from it last year.
"Abu Hamza (al-Masri) has been a disgusting stain on this country for too long," said the tabloid Sun in an editorial that had echoes throughout the popular press. ... "What an indictment of our own legal system that we had to rely on America to rid us of this pestilent priest."
But there may have been some logic in allowing al-Masri a degree of freedom in Britain. Police and government sources have told UPI that he was carefully watched, and although he obviously knew this others did not. As would-be al-Qaida recruits tried to contact al-Masri, authorities gained a larger picture of how the terrorist cells worked. The sources said for a long time he may have been more useful to British and American security services preaching his words of hate -- for which there were no direct illegal consequences that could be presented to court -- than behind bars.
Indeed, one difficulty the British have had in presenting the U.S. case against him is in regard to the taking of Western hostages in Yemen in 1998, when three British tourists and an Australian were killed. The kidnappers reportedly used a satellite phone provided by al-Masri, and his voice talking to the kidnappers in Yemen was intercepted by either GCHQ eavesdroppers in Britain or by U.S. NSA spy satellites.
Blunkett admitted to the BBC that under current law the monitoring of satellite phones is not admissible evidence in British courts, although it is in the United States. "We don't use intercepts in open court, whether picked up by the U.S. or GCHQ," he said. But that law is under review.
As for the death penalty, British extradition lawyer Paul Garlish told BBC TV that U.S. guarantees on al-Masri not facing the death penalty when extradited "would have no legal standing once Hamza is in the U.S." He expected a considerable legal battle on that point no matter what the U.S. government said.
The anti-death penalty case was made in Friday's Evening Standard by Lawrence Whitehouse, husband of 52-year-old elementary school teacher Margaret Whitehouse, who was shot and killed by the Yemen kidnappers. He said he refused to demand the death penalty for terrorist leader Abu Hassan -- who was executed by the Yemeni authorities anyway -- and he said he doesn't think al-Masri should face the death penalty either.
"Legal appeals against his removal from Britain are likely to stretch far into the future," said The Daily Telegraph in an editorial. "We are not rid of him yet."