Tuesday, December 16, 2014 

Two nations, the same words, the same outcome.

I can't breathe.  The words spoken by Eric Garner after a NYPD officer placed him in a chokehold, before he was then slammed to the ground.  Within minutes he was dead.  The decision by a grand jury not to indict the officer who placed him in the chokehold, coming just a week after a grand jury similarly declined to indict the officer who shot dead Michael Brown, sparking riots in Brown's hometown of Ferguson, has led to protests by sportsmen and celebrities.

I can't breathe.  The words spoken by Jimmy Mubenga, after three G4S guards meant to be supervising his deportation forced him forward in his seat, despite his already being handcuffed from behind.  Except, it's now difficult to know if that's what happened as the jury at the manslaughter trial brought following the unlawful killing verdict at Mubenga's inquest found all three not guilty, and within hours of their being sent out to consider their verdict.

This isn't the first time the verdict of an inquest and the subsequent manslaughter trial have differed.  Most notably, an inquest jury found Ian Tomlinson had been unlawfully killed, dying not long after he was pushed to the ground by PC Simon Harwood.  The jury at his trial similarly was not convinced beyond reasonable doubt he was responsible for Tomlinson's death, a decision which could be rationalised by how there was a difference of opinion between the pathologists who carried out consecutive autopsies.  The first post-mortem was performed by Freddy Patel, an incompetent who was suspended at the time of the trial and has since been struck off, details the jury were not told as they were deemed prejudicial.  Patel also poured away the liquid he found in Tomlinson's abdomen, which could have determined beyond doubt the cause of death.

The jury at the Mubenga trial were not told of the inquest's unlawful killing verdict, rather more understandably, nor that two of the guards had "racist" jokes on their phones.  We can't of course know which parts of the evidence the jury accepted and those they didn't: the guards denied hearing Mubenga crying out that he couldn't breathe, something that passengers seated much further away on the plane did and testified they had.  They also denied putting Mubenga into a position known to have the potential to cause breathing difficulties, which again witnesses testified they had.  The prosecution case also included reconstructing the alleged restraint placed on Mubenga, with a section of a Boeing 777 constructed in the court, members of the jury placed in the same position as Mubenga was.

We can then only surmise at how they reached their verdict.  We know juries are reluctant to convict police officers or others in positions of authority, whether they be British or American.  Just last week a jury cleared two officers of attacking a man with autism in Luton, despite hearing a recording of one of the pair referring to him as a "fucking Paki" moments prior to the altercation.  The jury seemingly accepted the injuries Faruk Ali sustained were due to his falling into bins when grabbed by one of the officers, not the punches claimed by Ali's family.  This giving of the benefit of the doubt is perhaps explained somewhat by polls showing a healthy majority retain trust in the police, one survey finding 65% would generally trust officers to be truthful.  Only teachers, doctors and judges are trusted more.  Journalists and politicians rank along the bottom.

Jimmy Mubenga wasn't only black; he was also being deported following a conviction for actual bodily harm.  All three of the guards found not guilty are white, the youngest 39.  The jury accepted their argument they were simply "trying to do a very difficult job in difficult circumstances, to the best of their ability".  You have to suspect that Mubenga, unlike Garner, will not have footballers or say, Idris Elba, donning t-shirts featuring some of his last words in protest.

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12/16/2014 11:59:00 pm | |

Thursday, January 30, 2014 

Theresa May the extremist.

Did you know that one of the government's definitions of extremism is "vocal or active opposition to fundamental British values, including ... the rule of law"?  It's an especially interesting fact when you consider just how close the government came today to having an amendment inserted into its Immigration Bill that the home secretary knew to be illegal.  Dominic Raab's amendment would have, in his words, "at a stroke, cut out the Article 8 challenges" made by convicted foreign criminals using the Human Rights Act/European Convention on Human Rights against their deportation.  This would have gone a step beyond the government's similar defiance of the ECHR over giving prisoners the right to vote, where MPs merely voted against the principle, rather than on doing so as a point of law.

You would have thought then that the government instructed its whips to push for Tory MPs to vote against Raab's amendment.  After all, it wasn't guaranteed that Labour would vote against the Raab amendment, and so it was more than possible it could have gone into the bill.  It could then have been struck out by the Lords, it's true, but that would be to make assumptions about the other place would vote.  Despite this, and in a sign of just how restive the Tory right is despite the return to growth, David Cameron ordered the whips to stand down and for ministers and their hangers-on to merely abstain.  It's possible there might have been some behind the scenes shenanigans with Labour, with the party deciding almost at the last minute that it would oppose Raab's amendment, yet if there wasn't we came extremely close to a piece of legislation which the government knew to be illegal taking one step closer to becoming actual law.

This sorry state of affairs is explained as Cameron, the scars from previous close calls and the Syria defeat on his back, deciding not to order a vote against an amendment which despite being illegal he had sympathy with.  Quite apart from what this says about how those who make the law and their attitude towards small things like legality, it's another example of politicians deciding that they know better than judges who have examined the full facts of a case before reaching their decision.  Just a couple of weeks back we had Cameron himself and others asking people to respect the decision reached by the jury at the Mark Duggan inquest, and yet in other cases it seems the judiciary and the system is not to be trusted.  If, as Raab says, there are examples of domestic abusers using the relationship with the person they attacked as a reason as to why can't be deported, then clearly those cases needed further examination.  As Left Foot Forward sets out though, Raab doesn't seem to have got other facts right about Article 8 challenges, making you wonder whether he hasn't also made other mistakes.

Remarkably, Raab's amendment was only slightly more objectionable than an amendment which did pass, and one both the Lib Dems and Labour supported.  Having already stripped 37 dual nationals of their British citizenship since the coalition was formed, Theresa May's late amendment to the Immigration Bill will now allow the home secretary to also remove British citizenship from those born abroad even if they don't have dual nationality, leaving them stateless.  Defending this new power, May said it would be used in "very, very specific and limited circumstances" when someone's conduct has been "seriously prejudicial" to Britain's vital interests".  Translated, this seems to mean some of those who have gone to fight in Syria and elsewhere, with some of those who had dual nationality having already been stripped of their citizenship for doing so.  As it has also mainly taken place while they are out of the country, they're unable to return and appeal, having to do so from abroad.  Where this will potentially leave those who only had British citizenship is open to question, and it also begs how they'll be able to appeal against the decision without any consular access.

It also signals another step forward in the inexorable, some would say logical progression of anti-terrorism legislation.  First we had the indefinite detention without charge of foreign nationals who couldn't be tried due to the sensitivity of the intelligence evidence against them; when that was struck down, control orders were brought in as their replacement to be used against those we couldn't deport.  The coalition replaced control orders with TPIMs, which the joint committee on human rights recently reported should be renamed terrorism prevention orders as they are not investigative in any real sense, and which are now being imposed more on those with British citizenship than without.  Now the home secretary is set to have the power to remove a naturalised Briton's citizenship even if it will leave them stateless, purely on the basis of evidence which the individual will not be able to see.  One Tory MP said in the debate he saw no reason why this could not be extended to those born here as well.  Indeed, that seems to be the obvious next place to go should this become law.  Others protested that the power might not be abused by this home secretary, but could be by a future one.  When we have security services that accuse Russians of being spies on the basis of circumstantial evidence, it's more than safe to assume that there is massive potential for mistakes and abuse to happen now.

You can certainly see why the government is so keen on the power.  TPIMs only last for two years before they have to be withdrawn due to the severity of the restrictions they place on individuals on the basis of secret evidence; at the same time they're potentially ineffective, as demonstrated by the disappearance of two of those subject to them.  With this by contrast, so long as it seems someone has left the country, usually to fight alongside jihadists, there are no such worries.  Deprived of their passport, they can't return.  This leaves them the responsibility of the country they've gone to, or more accurately, at the mercy of the authorities there.  Regardless of what we think about such people, and we have to take it on trust they are not just interested in fighting abroad but also bringing the war back home, this washing of our hands is to ignore how they were most likely radicalised here in the first place.  It is though so much easier and also cheaper to dump our problems on others rather than say, actually attempt to prosecute them ourselves.  When the government isn't coming incredibly close to breaking the law itself, that is.

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1/30/2014 11:59:00 pm | |

Monday, December 02, 2013 

Isa Muaza: no sense of shame.

There are more than a few reasons, it must be said, to doubt Isa Muaza's case for asylum.  Arriving here in the UK from Nigeria on a visit visa in 2007, rather than pursue an asylum claim immediately he instead worked under a false name, only applying for leave to remain in 2011.  He finally claimed for asylum in July of this year, and was swiftly refused under the fast track system just 13 days later.  Muaza's case revolves around the threat he says he faces from Boko Haram, the jihadi group whose attacks in the north of the country have killed in the region of 1,600 civilians over the past four years.  Muaza says he fled after he was given the choice of either joining the group or being killed, and says two members of his family were murdered by its members.

While Boko Haram was formed in 2001 and has been active over the past decade, whether it was acting in the ways claimed by Muaza in 2007 is a lot more difficult to ascertain.  Reports suggest at that point the group was mainly focusing on targeting the police, while members also disengaged from society and went to live in camps in remote areas.  It also doesn't explain Muaza's decision not to claim asylum straight away, although one factor could be Boko Haram was barely known outside of Africa until the beginning of the current decade.

It's also not been made completely clear by much of the reporting that while there are significant concerns over Muaza's mental health, the government has not refused to have him admitted to hospital (para 40 of this ruling).  Rather, they say Muaza's actions are against his detention as a whole.  The state also disputes Muaza's claim that he has hepatitis B, as there is no record of his either being tested or immunised against the disease. Muaza's original complaint was that he couldn't eat the food at Harmondsworth due to his medical condition, which also includes kidney problems.  His refusal of food developed out of this complaint, and while he had still not been seen by a psychiatrist when Justice Stewart gave his ruling in the middle of October refusing interim relief, an assessment by Dr Hartree of Medical Justice suggests that he most likely has schizophrenia.  Hartree added that she believes it "unlikely that IM [Muaza] is making a conscious, calculated protest against detention", rather that it is a symptom of his psychosis.

Something that's not disputable is regardless of how this state of affairs was arrived it, it is the height of inhumanity to subject someone who has been refusing food for over 100 days to deportation, let alone the farce the Home Office's attempt to fly Muaza back to Nigeria turned into.  Unable to get a man strapped to a bed onto a Virgin Atlantic flight, the decision was made to charter a jet.  Despite taking this incredibly extravagant decision, estimated to have cost somewhere in the region of between £95,000 and £180,000, they apparently failed to either inform the Nigerians of their plans or to persuade them they should take a man near to death back into their custody.  Refused entry to Nigerian airspace, the jet made turned round and stopped over in Malta, before making its way back to the UK.  A nice little earner undoubtedly for the charter company, an disgraceful fiasco for those of us in whose name the deportation was authorised.

As with other cases, the reasoning behind the deportation is apparent enough: out of sight, out of mind.  Who cares if Muaza dies within days of being returned, as long as someone causing such a problem is got rid of?  Apparently secondary was any concern that the stress of the deportation could result in Muaza's death, rather suggesting that if any lessons were learned after the death of Jimmy Mubenga, they've been forgotten extremely swiftly.  The Home Office's change in policy from previously releasing those who had been refusing food for a lengthy period is easy enough to understand if not agree with, but it seems not to operate on a case by case basis: if Muaza is refusing food due to psychosis rather than as a protest, he should have been seen by psychiatrists as a matter of urgency.  Even if not psychosis, to refuse food for the period of time Muaza and others have done after their claims failed is the epitome of desperation.  Many of us bitch and moan about the state of the country; others so want to stay here they are prepared to risk death to do so.

The Home Office's actions in this instance have been self-defeating in the extreme.  Keeping someone in an immigration detention centre costs an estimated £120 a day, or £43,800 a year, around £6,000 higher than that of a prison place.  Even if the chartered plane cost 95 grand rather than £180,000, that still would have paid for Muaza to be kept in custody for a further 2 years.  Instead of attempting to treat his psychosis or try to deal with his determination to die rather than return to Nigeria, the decision was made, despite the risks, to make him someone else's problem.  It backfired spectacularly.  With reports suggesting Nigeria is now willing to accept Muaza and the Home Office having long been unburdened by any sense of shame (or concern for taxpayer's money), the odds are the deportation will be attempted again.  Whether Muaza survives it or not doesn't seem to factor in to the equation.

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12/02/2013 11:41:00 pm | |

Tuesday, November 13, 2012 

Yet another post on Abu Qatada.

Well, who could have predicted that?  Abu Qatada winning his latest appeal against deportation to Jordan?  This has never happened before!  Oh, except it has.  Twice, in fact.  And when even a keyboard monkey like me with no real legal knowledge whatsoever could pick holes in Theresa May's trumping of how this time Qatada really was as good as on a plane, it suggests both she and her predecessors have been receiving incredibly bad advice for quite some time.

The judgment by the Special Immigration Appeals Commission (PDF) is essentially a rehash of the ECHR's decision earlier in the year, that Qatada doesn't personally face the prospect of mistreatment or torture, but he does face the prospect of a trial where the main evidence against him is confessions from men who almost certainly were tortured.  Regardless of the change to the Jordanian constitution to explicitly prohibit the use of evidence obtained via torture, Mr Justice Mitting and his team reached the conclusion that, based on expert evidence from Jordanians who gave written and in person testimony, the statements that incriminate Qatada may well be used against him, and that the burden of proof is likely to fall on the witnesses to prove they were tortured, rather than for the prosecution to prove that they weren't.  As the torture happened over a decade ago and the Jordanian courts previously rejected the notion that torture took place, the likelihood of them being able to do so, even in front of three civilian court judges, is dubious in the extreme.  Barring a further change to the Jordanian code of criminal procedure or a definitive ruling from one of two courts on the ambiguities in the code, Qatada is staying here.

Unless that is May manages to convince the Court of Appeal that SIAC is being unreasonable in its demands of the Jordanians, something that seems highly unlikely considering SIAC has come to effectively the same conclusion as the ECHR did.  In the meantime, ol' bird nest face is free for 8 hours a day, if your definition of free is being tagged, followed by security officers the moment you step out of your front door and being denied access to pretty much everything that makes life pleasurable.

If all this seems a bit much for someone whose motivations have often seemed opaque, then SIAC also obtained new information on the nature of the evidence against Qatada.  To say some of it is thin is an understatement: all that links Qatada to the "Reform and Challenge" case is that one of the defendants says he suggested the targets and then congratulated him afterwards; in addition, three of the defendants had copies of a book by Qatada.

The evidence against him for the Millennium plot isn't much thicker: Qatada gave one of the defendants money, although not ostensibly towards the plot, gifting him 800 Jordanian dinars with which he bought a computer, while the defendant admitted discussing the "issue of jihad" with Qatada, although not specifically about any plot.  Another defendant claimed Qatada had given a further $5,000 to the same man, while the money he had been promised to marry the first defendant's sister never arrived.  Otherwise, the evidence again amounts to possession of books by Qatada, and the discovery of messages between the two men.  SIAC additionally comments on this that "[T]he record of the evidence produced at the trial does not clearly support the prosecutor’s case", although it's presumed that in the case file there will be statements from investigators that will.

All is likely to depend on whether the Jordanians are prepared to move further, or whether a case comes before either court that irons out the disagreement between the experts consulted by the commission.  SIAC accepted that the Jordanians had moved significantly from their initial position, and also noted their awareness of how this was a potential opportunity for them to show they were capable of trying a man notorious internationally with scrupulous fairness.  If SIAC was making its decision on that basis alone, as indeed had the ECHR, Qatada would be long gone.

In a different world, this entire case might be seen as showing the best of the British state.  Despite the contempt often shown towards the Human Rights Act and the ECHR by politicians from both main parties, successive governments have abided by the decisions made in line with it, refusing to countenance ignoring the rule of law in this specific case, and have gone so far as to push Jordan towards making genuine judicial reforms.  Pushing any authoritarian state in the direction of respecting basic human rights is something to be proud of, regardless of the circumstances.

Unfortunately, we're stuck with this world, and it's one where judges are traduced by tabloid newspapers for doing their job.  By all means criticise the judiciary if they get basic decisions wrong, or apply the wrong tests when they sentence someone, but not when they've delivered a judgment as in-depth and cogently argued as Mitting has.  

The real responsibility for this 7-year-long slog lies with the last government.  The decision to simply get rid of Qatada rather than attempt to prosecute him has never been explained adequately: we don't know whether there simply isn't enough evidence against him, whether the evidence is mainly phone intercepts, whether his involvement with MI5 goes too deep, whether it was made impossible by the rendering of Bisher al-Rawi who reported on Qatada to MI5, or whether deportation was felt to be the easiest option.  Where this government has failed has been to fall into the same trap as the previous one, of boasting to the media that the deportation is all but done and dusted, only to find it still hasn't got its legal arguments in order.

One suspects that Qatada will eventually get sent to Jordan, if only down to how successive governments have backed themselves into a corner.  Should further changes to the Jordanian law not be forthcoming, then Qatada's bail restrictions will have to be either loosened or dropped entirely.  The only other option is to impose a TPIM, and they can only last for two years.  Even at this late stage there's still time for a potential prosecution to be looked at, however embarrassing that might be either for the previous government or the security services.  It can't be any worse than the prospect of someone built up to be Osama bin Laden's right-hand man in Europe mooching free around London.

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11/13/2012 09:43:00 pm | |

Tuesday, October 16, 2012 

The hacker and the hacked off.

At times, it's nice to be reassured that, despite everything going on in the world, whether it be our politicians telling us unless we give away all our hard won employment rights we'll be back in the economic dark ages, men jumping from the edge of space and not splattering themselves over a wide area, or one-trick ponies still being cheered on for performing their one trick, much is exactly the same as it has always been and it seems destined to stay that way.

Take the case of Gary McKinnon, for instance.  If you put aside for a moment the quite brilliant campaign ran in his favour, so successful that it drew in support from across the political spectrum, it seems an open and shut case.  McKinnon did hack into almost a hundred separate computers operated by various arms of the American state, although mainly military ones.  He has never denied doing so.  It's likely that their security was appalling lax rather than McKinnon was some kind of master hacker, and it's also dubious that he caused anywhere near the amount of damage they claimed that he did, which supposedly cost $700,000 to put right.  At worst, he seems likely to have put a few computers offline for about a day, until their operating systems were repaired, as one of the key claims made against him was that he deleted key system files, and might have also, as the US prosecutors claim, temporarily rendered over 300 US Navy computers inoperable in the aftermath of 9/11.

Nonetheless, the Crown Prosecution Service repeatedly decided that since the investigation into McKinnon's activities had begun in the US, and most if not all of the evidence of McKinnon's wrongdoing had been collected in the US, with most if not all of the witnesses also based there, it made perfect sense for the case to be tried there too.  It's also highly doubtful whether, if convicted, he would have been sentenced to anything like the lengthy term his campaign often referred to.  A plea bargain which McKinnon rejected would have resulted in a three year sentence, with the possibility that the majority if not the whole term could have been served in the UK.

All of which brings back memories of the "Natwest Three", those other oppressed innocents, all of whom are now back free in the UK despite the many hysterical claims about the treatment they would also face in the US.  McKinnon's case is different, firstly in that by any reasonable yardstick his is not as serious, as he didn't break any law to personally enrich himself (nor did he cause any significant damage to the US), and secondly in that no one denies he does have Asperger's syndrome.  It's also now clear that his mental health has suffered to such an extent that his extradition to the US could well result in his suicide, as five eminent psychiatrists have all found.  Theresa May is therefore quite right to decide that his deportation has the potential to breach his article 3 rights to protection from inhuman or degrading treatment or punishment.

Understandably then, the relatives of both Bahar Ahmad and Talha Ahsan, who also has Asperger's syndrome, are more than a little miffed, and wondering whether they were always at a disadvantage.  Barely 2 weeks after their deportation to the US, and someone who has effectively admitted his guilt and unlike Ahmad hasn't spent the last 8 years of legal process in prison has been saved on what looks suspiciously political grounds.   

The charges against Ahmad in particular have long been controversial.  While Ahmad admits to having operated Azzam.com, one of the earliest English language websites to become well-known for supporting various jihads across the globe, whether he was breaking any British law at the time seems dubious in the extreme.  Indeed, like with McKinnon, the Crown Prosecution Service found that there was insufficient evidence for him to be tried here, the difference being that the US only applied to extradite Ahmad after the CPS had decided not to bring charges.  The charges he now faces there also include "conspiring to kill people in another country", which seems to refer to his possession of details of the passing of the US Fifth Fleet through the Strait of Hormuz, and money laundering.

Ahmad is undoubtedly not as vulnerable as McKinnon, but that doesn't begin to justify the difference in treatment they've received.  Regardless of the truth of what happened when Ahmad was arrested, having received £60,000 in compensation courtesy of the Metropolitan police for the numerous injuries he suffered, only for a court to acquit the officers accused of inflicting them when it emerged that an MI5 bug in Ahmad's house picked up none of the shouting Ahmad claimed had taken place (the jury were not told of the payout by the Met), it seems bizarre that the government is prepared to stand up to the US for one British citizen with a campaign behind him and not for a couple of others when their case is highly similar.

May's decision to invoke the Human Rights Act in this case also brings into focus the government's determination to deport Abu Qatada to Jordan to face trial there in spite of the ruling by the European Court of Human Rights that the evidence against Qatada was almost certainly the product of torture.  Currently appealing once again to the Special Immigration Appeals Committee, we've learned that the evidence against Qatada in one of the plots he's accused of being involved in "is a bit thin", and that ministers sought a pardon for Qatada only for this to be rejected by the Jordanians.  More astonishingly, it seems one of the witnesses called for the prosecution accepts that the evidence against Qatada since struck out by Jordan was obtained through torture, meaning we were perfectly happy with sending someone back to an authoritarian state to face what would have been an unfair trial.

And with her move today, May seems determined to ensure nothing quite like this happens again.  From now on it will for the High Court to decide on appeals against extradition under the HRA, and not a minister.  While that removes any possibility of decisions being made on the basis of politics rather than the facts of the case, the introduction of a "forum bar" allowing the courts to block deportations if it would be fairer for trials to be held here seems to conflict with the difficulties the CPS will have with prosecuting cases when much of the evidence has been collected overseas and the witnesses live abroad.  Also a cause for concern is May's apparent intention to limit legal aid in such cases, especially worrying when it seems as though the government now accepts Qatada was justified in claiming he wouldn't face a fair trial in Jordan.

We also shouldn't rejoice much in the fact that May had to rely on the very act she and the Conservatives want to scrap to block McKinnon's deportation.  Those determined to repeal legislation which their friends in the press have for so long derided as only protecting criminals and terrorists have never let the facts get in the way before, and are unlikely to do so now.  A British Bill of Rights will, they'll tell us, protect us in the same way while ensuring that never again will we be taken for a ride.  Perhaps Babar Ahmad's family can testify as to how that feels.

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10/16/2012 10:50:00 pm | |

Thursday, April 19, 2012 

From bean to cup, they fuck up.

Omnishambles. The more time that goes by, the more I'm convinced that The Thick of It is the best comedy of 00s; yes, Peep Show is superb and the first series at least of Nighty Night is great, but neither compare with the sheer majesty of Peter Capaldi as Malcolm Tucker and the virtuosity of the writing. The great irony is that even as the language of the show is apparently being used in Number 10 to describe the budget fiasco of their own making, the show itself didn't manage to come up with something as farcical as the latest twist in the Abu Qatada saga.

In truth, the last minute appeal by Qatada's canny lawyers to the European Court of Human Rights's grand chamber shouldn't really make any difference. It was going to take months if not another year or more for his deportation to take place as he would have almost certainly appealed to the ECHR again anyway. Theresa May in her statement to the Commons on Tuesday said as much; those briefing the media however said that the hope was to deport him by the end of this month, something that was never going to happen. If rather than appearing completely triumphalist on Tuesday she had instead made clear that this was simply the next stage but that the end was in sight, the whole thing would not have blown up in her face as completely as it has.

As Carl Gardner writes, it's not immediately clear who's right on whether the deadline for an appeal was the Monday or the Tuesday, although it looks more likely at this moment that it's the court and not the government. Assuming that it is the court, the cock-up would still have been the equivalent of a semi-on if May and the briefers had not gone so to town on how this meant Qatada was as good as on a plane being manhandled by the finest from G4S. Instead it just feeds wholly into the narrative of how this government currently can't do anything right, that like Nicola Murray, from bean to cup, they fuck up.

Or at least this appeared to be the case. According to Justice Mitting's SIAC ruling (PDF) revoking Qatada's bail, if the ECHR's rule 39 injunction against deportation had been lifted as neither side appealed, then the process could have been a relative formality. May could have "short-circuited" the process by declaring an attempt by Qatada to quash the original deportation order as clearly unfounded, leaving his only avenues of appeal the Divisional Court and then the Court of Appeal, without the process having to start all over again at SIAC. Any further appeal to the ECHR would then apparently have to be conducted from Jordan. While it's still dubious this could have all been accomplished in 10 days, Qatada may well have been gone within "a few short weeks" rather than months.

If accurate, and again this isn't certain, then it really has been a colossal balls-up. The grand chamber might well rule that Qatada's appeal was out of time, or alternatively dismiss it as there is no danger that he personally will be tortured in Jordan, as the court ruled. This though will take at least at least a couple of months, or potentially if it does decide to hear it much longer. In the meantime, Mitting may well decide that while the process rumbles along Qatada can be safely bailed again. Having all but waved him goodbye, Qatada is left once again having the last laugh, or at least smirk. May, meanwhile, is looking like this.

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4/19/2012 09:46:00 pm | |

Tuesday, April 17, 2012 

Abu Qatata, finally?

Credit where credit is due then: the government could have taken the advice of the head bangers on the Tory backbenchers (and head banger is the only way you can possibly describe Peter Bone, whose surname seems to be lacking something) or followed the wonderful example set (allegedly) by the French and Italians, and just stuck your friend and mine Abu Qatada on a plane to Jordan (the country, not the model, although they could perhaps be the ultimate odd couple in a sitcom: she's had more surgery than Michael Jackson and Joan Rivers combined; he's never had a shave).

Instead, if we're to believe Theresa May, our need to deport an unwanted extremist has struck a blow for human rights in general in the country. In practice, this doesn't look quite so clear cut. The European Court of Human Rights ruled Qatada couldn't be deported in the main because the evidence of his co-defendants, which would make up the majority of the case against him, was obtained as a result of torture. May states that as they have since been pardoned, and that whatever they say will no effect upon those pardons, "we can therefore have confidence that they would give truthful testimony". This is dubious in the extreme. Their pardons might not be affected, but this hardly means that an authoritarian state can't put pressure on them in other ways.

May also seems to contradict herself. She said in her statement that Qatada will be able to challenge the original statements made against him, then states "[I]ndeed, one of the more significant recent developments is the change to the Jordanian constitution last autumn that includes an explicit ban on the use of torture evidence". Presumably if there's an explicit ban on the use of torture evidence then Qatada won't need to challenge the original statements as they won't be admissible? And in any case, there are plenty of vile regimes that in their constitutions have explicit restrictions on certain practices that they nonetheless indulge in. As nit-picking as this might look, these are exactly the sort of doubts that should Qatada appeal again to the ECHR will have to be addressed and answered.

On the whole though it's difficult not to applaud. As there seems to be no chance whatsoever that the government will reconsider and instead decide now that Qatada should be prosecuted here, especially after it's gone to all this effort to persuade the Jordanians to in turn persuade the ECHR that they can be trusted to try him fairly, this is undoubtedly the second best option. It not only shows, as pointed out previously by Maajid Nawaz, that we will not succumb to the very thing that the government's counter-extremism strategy defines as being unacceptable, the undermining of the rule of law, it also indicates that when really pushed we can work with countries such as Jordan to help them improve their systems of government without then in turn selling them weapons as a reward. It does mean that it's doubtful we'll ever learn exactly how intertwined Qatada was with the security services, and there's plenty of reasons why we shouldn't believe that MI5 only had contact with him three or so times prior to 9/11, but if it means we are rid of one of the main reasons for why the tabloids so loathe the ECHR and in turn the Human Rights Act, although there are plenty of others, then it'll at least somewhat make up for it.

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4/17/2012 07:32:00 pm | |

Tuesday, April 10, 2012 

The past scratching of backs.

The one major thing that has to be kept in mind about today's ruling by the European Court of Human Rights that Abu Hamza and five others, including Babar Ahmad, can be deported to the US is that, in part, this is about previous governments on both sides of the Atlantic scratching each others backs. Our fanatical, hook-handed friend had become tabloid shorthand for how, despite everything, the government was failing to keep the public safe. It didn't matter if Hamza's actual links to terrorism were relatively minor, or his supposed powers of indoctrination were much exaggerated, he was the symbol of what was soon to be known as Londonistan. When Hamza was first detained under the 2003 Extradition Act in May 2004, it looked as though he was going to escape charges here, the Crown Prosecution Service having twice decided evidence against him was insufficient. It was only a couple of months later that finally they decided there was enough to proceed with a trial.

In any case, the charges of soliciting to murder and inciting racial hatred were not going to result in a sentence that would keep Hamza off the streets long enough to appease the papers that were demanding his deportation. The Americans stepping into the breach was therefore incredibly helpful. It also followed the pattern of the time, where the authorities massively preferred just getting rid of extremist clerics, such as the on-going attempts to deport Abu Qatada, as well the declaration that Omar Bakri Muhammad's presence was not conducive to the public good, rather than going through the frightful process of proving that they had actually committed criminal offences.

Whether Babar Ahmad was directly involved in the discussions around the extradition of Hamza or not we don't know. While it's clear that we ourselves were interested in him, as it takes quite a lot for MI5 to install a bug in your house, it also rather puts charges in doubt when the arresting officers are accused of brutality, allegations that the Met paid out over but which the officers themselves were subsequently cleared of any wrongdoing over, the jury uninformed of the damages. In any event, the CPS again decided there was insufficient evidence against Ahmad, and the US once again came to the rescue. While the charges against Hamza are fairly detailed, they're flimsy at best against Ahmad, especially on whether or not any offence was committed in the US at all; Azzam.com was hosted in the US, but this was when law over jurisdiction on the internet was still developing, while the other charge of Ahmad having a disc in his possession with the movement times of the US fifth fleet through the Strait of Hormuz is laughably thin.

There's also a double standard an inch thick running through the indictment over Azzam.com. It's all well and good for the likes of Evan Kohlmann to describe it as one of the most important jihadist propaganda sites, and crucial for the building of consciousness over the insurgencies in Chechnya and Bosnia, which it was, but it's also the case that without it there now wouldn't be as many of these private security companies and experts like Kohlmann to pontificate on how dangerous those running them are or were. Ahmad doesn't deny that he himself fought in Bosnia, and was supportive of the other insurgencies going on prior to 9/11; the real issue should be whether what he was doing was a crime in this country at the time. The CPS decided there wasn't enough to put before a jury.

All this said, the ECHR was never going to block extraditions to the US, barring all five of those challenging being subject to the same treatment as say, Bradley Manning was. However ghastly the super-max prisons are, and the ECHR in its ruling seems more inclined to believe the authorities than the critics, there wasn't much chance the conditions were going to amount to inhuman or degrading treatment. The ECHR have though quite rightly adjourned their decision on Haroon Rashid Aswat until they've had further assurances on the treatment those with mental health problems receive, as Aswat is currently being held at Broadmoor. Much as you can't begrudge Ahmad going down every avenue, Hamza on the other hook won't be held at a super max as they can't deal with the fact he's an amputee, which rather brings the ECHR into disrepute. Lawyers: the ECHR needs as much help as it can get at the moment, so please don't do the work of the tabloids and Tory backbenchers for them. Thanks in advance.

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4/10/2012 05:07:00 pm | |

Tuesday, February 07, 2012 

Abu Qatada: same shit, different month.

One of the problems of doing much the same thing creatively over a long period is that you can fall into the trap of repeating yourself to the point where it not only turns off those who previously paid something approaching attention, it also leaves you thoroughly dispirited with how you can't seem to get out of the same old routine. While this is obviously not a problem for Liam Gallagher, and with slight modification seeming repetition can in fact launch an institution (see Private Eye, The Fall, George A. Romero), it's not quite the same with politics and commenting on it. I'd go so far to say that it's only in politics that quite so many otherwise dead subjects can be resurrected, whether because they never go away, or due to how they can be reanimated and gone over yet again, the same arguments rehashed and then ignored just as they were the last time.

So it is with Abu Qatada, the hirsute Islamic fanatic everyone loves to hate. It seems only last month that we were discussing why he should or shouldn't be deported for the umpteenth time, because it, err, was. It would be nice to think that the topic has been done to death: the government of whichever hue convinced of its righteousness in trying to deport him back to Jordan, with those few on the other side quietly pointing out that we could have avoided all this palaver had we attempted to put him on trial here in the first place, rather than sending him back into the welcoming arms of the authoritarian state he fled from. We did after all grant him asylum back in the care-free 90s, unconcerned as we were then of the phantom of exploding Muslims. Why, even those happy spooks in residence at Thames House believed they had him in their pocket, and that he wouldn't do anything to harm the state that had given him shelter.

Reacting though with weary resignation to Qatada's imminent release on "bail", if you can call a curfew of 22 hours bail, simply wouldn't suffice. We must instead go through the same cycle of outrage as last time, whether it's the Sun's take on the matter, with "evil Qatada sniggering at our humiliation and weakness", or the home secretary saying it "simply isn't acceptable" that he can't be deported, despite our diligence in attempting to ensure he won't be mistreated. It doesn't seem to matter that the danger from Qatada, such as it is, isn't that he will personally launch an attack: it's rather than he's provided theological guidance and motivation to jihadists in the past, and given the opportunity possibly will again. This makes the threat he poses under a 22 hour curfew, accompanied by surveillance, a tag and a ban on anyone visiting him who doesn't receive Home Office approval almost negligible. If anything he probably poses more of one where he currently is in HMP Long Lartin, where he can at least mix with the other detainees in the special immigration unit being held in similar circumstances to his (PDF), hardly improving the chances of any of the men having a change of heart over their extremist views.

It also doesn't matter that as Qatada's lawyer Gareth Pierce pointed out, he has been under both a control order and similar bail conditions previously, and on neither occasion was it found that he had breached those terms. He was taken back into custody the last time purely on the grounds of "national security reasons" which could not be disclosed, having embarrassed the government by shopping in broad daylight for kitchen roll and Diet Coke. Even if it turns out that the government can't reach agreement with Jordan over evidence potentially derived from torture being used against him, and the most likely outcome on that score seems to be Jordan dropping proceedings against him altogether, it hardly means he's going to be free to do whatever the hell he feels like: a TPIM, the coalition's replacement for control orders is only very slightly less rigorous.

There is a very obvious double standard at work here: regardless of what British citizens are accused of, we would refuse to send them to a country to face trial where the death penalty would definitively be sought should they be found guilty. Likewise, the outcry would be massive should the evidence they face be potentially tainted by or even be wholly the product of torture, as the ECHR has ruled in Qatada's case. You only have to look at the example of the Natwest Three, where a high profile and incredibly misleading PR campaign was launched on their behalf to see the difference when it's "our criminals" that are being sought. Despite all the scaremongering, they were back here within four years of their deportation. By comparison, and without being convicted of any crime here, Qatada was described today in parliament by the home secretary, however obliquely, as a terrorist.

As sympathetic as I am to the well articulated points of Michael White, who reasonably sets out why we have discharged our responsibilities to Qatada and indeed other non-citizens who attempt to avoid deportation to potential justice in a similar fashion, it remains the case that the whole venture has been doomed from the start. It's been a well established point of law for a long time now that you cannot deport someone back to a country where they will face the threat of mistreatment or a trial where the evidence is likely to be based on mistreatment; the House of Lords surprisingly overturned Qatada's successful court of appeal bid on that score, so it was always likely that his subsequent appeal to the European Court would succeed. Richard Norton-Taylor suggests that this whole course was supposedly chosen on the grounds that it would be easier than taking him through the courts, even though evidence of his extremist preaching, potentially amounting to inciting racial hatred, murder or terrorism is available.

Distasteful as it is that we should have dedicated such efforts and expense in protecting the rights of a man who would presumably like to see the imposition of Sharia law, this is exactly what makes us democracies. To steal wholesale from a comment posted by GuyStevenson on Eric Metcalfe's piece at the Graun, quoting Aharon Barak, former head of the Supreme Court of Israel:

This is the destiny of democracy, as not all means are acceptable to it, and not all practices employed by its enemies are open before it. Although a democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand. Preserving the Rule of Law and recognition of an individual's liberty constitutes an important component in its understanding of security. At the end of the day, they strengthen its spirit and its strength and allow it to overcome its difficulties.

It might save some time to remember this when we do have to put Qatada under that less strict regime. Except, of course, we won't.

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2/07/2012 08:20:00 pm | |

Friday, January 27, 2012 

We must stay bound by the "shackles of the human rights court".

Despite the briefing it received in advance, David Cameron's speech to the Council of Europe on reforming the European Court of Human Rights was fairly tame stuff. With the exception of his promotion of a "sunset clause", which it has been rightly pointed out could result in a denial of justice, the exact thing the ECHR is meant to prevent, it certainly wasn't the "savaging" the Sun described it as, nor did the elite seethe. The real problem we have is the "lively debate" Cameron referred to over human rights in this country, which translated means the insistence of the tabloids that we should have the right to send anyone back to wherever they came from if they're considered a threat - even if that means depositing them in a country in the middle of a civil war, or in the case of Abu Qatada, to face a trial where the evidence against him was in the ECHR's opinion overwhelmingly the product of torture.

The real danger of the Sun wanting to free us from the "shackles of the human rights court", a ironic sentence if there ever was one, is that if it were to come to that we would be doing the biggest disservice to those in the less free nations in eastern Europe. Figures compiled today show that comparatively, the decisions that go against the UK at the ECHR are relatively few. Indeed, more were dismissed than allowed. Turkey, by contrast, had 159 out of 174 decisions go against her, while Russia had 121 out of 133. Both France and Germany also had far more cases heard and go against them than the UK did, with the courting finding there had been a violation in 23 and 31 of the applications respectively. If those on the right got their way and we withdrew from the convention, then it can be guaranteed that Russia would do the same and point towards our decision in justification.

As right as Sir Nicolas Bratza was in criticising politicians for using "emotion and exaggeration" when taking on the ECHR, it also bears pointing out how they ignore cases which don't fit into the standard tabloid "'uman rights madness" archetype. It was only after the family of Christopher Alder went to the court that the government admitted they had been initially denied a proper independent investigation into his death, as well as accepting that the neglect he suffered at the hands of the police was so serious that it amounted to inhuman or degrading treatment, breaching article three of the convention. By all means reform the court so the backlog it currently has can be swiftly dealt with - what must not be allowed to happen is any dilution of its right to intervene in cases which "have been dealt with properly in the national courts", something liable to be highly subjective.

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1/27/2012 05:28:00 pm | |

Tuesday, January 17, 2012 

The man who knows too much.

There's something about Abu Qatada that truly terrifies the authorities in this country. Fast approaching the tenth anniversary of his initial arrest, he's spent the past decade either in Belmarsh, first under the notorious law introduced after 9/11 that allowed for the indefinite detention with charge of non-British citizens; at his home under a control order with a 14 or 22 hour curfew; and latterly, having been accused of trying to escape from this purgatory purely on the back of secret evidence which he couldn't challenge, held at Long Lartin. Unlike Babar Ahmed, who has now been held without charge awaiting deportation to America for the last 8 years and has had a high profile campaign calling for his trial in this country, hardly anyone has been prepared to speak up for the man also known as Omar Othman.

This is not exactly surprising. Having been described as Osama bin Laden's right-hand man in Europe by a Spanish judge, something noted at the beginning of almost every report on the latest legal movement in his case, and as a spiritual leader to al-Qaida when that detail is overlooked, you don't tend to receive much in the way of positive press. His case certainly isn't helped by his proximity to those other notorious Islamists, Abu Hamza and Abu Bakri Mohammed, nor by the speeches and lectures he gave which were favourites among those who went on to take part in terrorist attacks. His interview with Panorama back in 2001, reposted today, is deeply ambiguous and can be taken by both critics and those (very few) speaking in his defence as being either evidence of his general extremist views or his limiting of what is permissible under certain circumstances. Far easier to interpret is a supposed statement from him published on jihadist forums in 2009, where he makes reference to meeting Bilal Abdullah, convicted of the Glasgow airport and Tiger Tiger failed bomb attacks:

"Dr. Bilal Abdullah is a true man of Islam from all points of views; for he is knowledgeable, proficient, and resolute. I was humbled when I heard him say to me: "I was very influenced by your taped lectures.'"

The prison service for its part denied that Qatada was managing to smuggle out or issue any such communiques, although how reliable that claim is when there's a whole interview that was conducted with him also online is debatable.

Nonetheless, described by the reliable Will McCants as one of the most influential jihadi ideologues and having played a huge role in the development of contemporary takfirism, what is clear is that he was in the past an important figure to many involved in extremist Islam. Entirely opaque by contrast is his past involvement with the security services. Along with Abu Bakri, there is much debate about just how far his dealings went with MI5. Bakri has always claimed that he had a deal, described either as a covenant of security or a covenant of peace, whereby as long as he and his groupings did not advocate attacks in this country itself they would be left relatively alone. The only documentation we have which describes Qatada's interactions with MI5 is in the first ruling by SIAC (PDF), where the officer records in the second of his interviews with Qatada that "he came the closest he had to offering to assist me in any investigation of Islamic extremism", following it up by saying he would ‘report anyone damaging the interests of this country’. The officer came away from the third interview believing he had intimated that he "expected him to use that influence, wherever he could, to control the hotheads and ensure terrorism remained off the streets of London and throughout the United Kingdom". According to SIAC there were no further meetings.

This seems doubtful, especially when we consider the highly related cases of Bisher al-Rawi and Jamil el-Banna. Al-Rawi had become friends with Qatada, and following 9/11 agreed to help MI5 keep tabs on him. When Qatada went into hiding after the passing of the indefinite detention bill, al-Rawi was one of the few who knew where he was, and attempted to arrange a meeting between the two, Qatada pulling out at the last minute. His usefulness apparently over, MI5 said he could leave the country and go to Gambia, only for them to pass on fabricated material to the CIA saying they had taken bomb parts along on the journey. The result was their incarceration in Guantanamo Bay for 4 years.

At best then, it seems reasonable to believe Qatada has information which would highly embarrass MI5 should he have to be tried in the UK. At worst, he could be able to sing like the proverbial canary: if his meetings went far beyond what has so far been disclosed, it could well make the previous accusations of Londonistan look tame. As Richard Norton-Taylor also points out, and as was highlighted by the search for relevant documents following the bid for compensation by those who claimed they had been rendered to Guantanamo Bay with the connivance of MI5 and SIS, it will also be both extraordinarily expensive and time-consuming. Only last week it was announced that no one would face prosecution over their role in that policy. Avoiding a repeat of even the chance of that unpleasantness starting all over again, with all it involves for the reputation of the security services must be high on the list of priorities.

Moreover, it seems incredible considering the amount of material available that a prosecution couldn't be brought against Qatada here. The aforementioned SIAC ruling mentions that "he is reliably reported as having made a speech at a gathering in the Four Feathers Mosque in which he gave a blessing to the killing of Jews", the kind of incitement to racial hatred, or even incitement to murder which enabled the conviction of Abu Hamza. Ahmed Faraz was recently successfully prosecuted and jailed for selling books which included Sayid Qutb's Milestones, albeit apparently in a special edition "developed specifically to promote extremist ideology". If such a case can be made which could potentially affect both freedom of speech and freedom of the press, why can't one be made against the man many seem to believe was directly connected with al-Qaida? It seems to only be Qatada and the also loathsome, if not anywhere near as potentially dangerous Anjem Choudary who seem to be able to escape the law here.

This is the light in which today's ruling by the European Court of Human Rights that Qatada cannot be deported to Jordan has to be seen. While dismissing the notion that he would be liable to face torture, the court accepting the dubious promise of an authoritarian state that it will refrain from mistreating this one particular special prisoner, they upheld his claim that any trial would not be fair as the evidence against him would be overwhelmingly based on the confessions of two men, both of whom were tortured. Despite the disagreements of consecutive courts, Qatada having gone through the full process of SIAC to the Court of Appeal to the House of Lords to finally the ECHR, the government must have always known it was unlikely that he would ever be deported, whether on the worthlessness of the memorandum of understanding or as, it has turned out, under the right to a fair trial of Article 6.

What then do they do with Qatada now? Any further appeal seems liable to fail. The most obvious response from the government would be to put him under a TPim, the replacement for control orders, but this can hardly hold up in the courts indefinitely. Sooner or later, the authorities are going to have to face up to the fact that the person they fear knows much about their shady dealings is going to have to be prosecuted. They ought to start preparing for that rather than continuing to try desperately to do anything other than the decent and right thing.

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1/17/2012 05:36:00 pm | |

Tuesday, January 26, 2010 

The VIP treatment.

Here's one of those especially crass Sun articles written with the type of feigned ignorance so prevalent in the tabloids:

ILLEGAL immigrants are getting the VIP treatment when booted out of Britain - with personal security escorts costing almost £500 each.

Yes, you read that right - the VIP treatment. I don't know what VIP means to you, but I somehow doubt that those who considered themselves such would put up for long with what the average failed asylum seeker or illegal immigrant faces prior to their deportation, often provided by the same private security firms. The last report into Colnbrook (PDF) immigration removal centre, ran by Serco (glossy corporate, touchy-feely everything is wonderful page), where many are held prior to their deportation due to its location near to Heathrow, found that it was struggling to cope and that safety was a significant concern.

That though is nothing when compared to the true VIP treatment when those lucky enough to be leaving are taken to the flights to return them to their home country. The reason why "personal security escorts" are used is twofold - firstly because there are few officials and staff within the UK Border Agency who are authorised to use force and as result many first attempts to deport individuals are abandoned because those whose time has come dare to resist - and secondly as many within the UKBA are not prepared to actually see the policies which they implement put into effect.

In a way, you can't blame them - the horror stories from some of the chartered flights are visceral in their intensity. On one of the first chartered flights back to Iraq a detainee smuggled a blade on board and slashed his stomach, while another concussed himself after banging his head repeatedly against a window. Those were probably the ones which weren't restrained, with others either handcuffed or even wearing leg irons. Charter planes aren't always used though - there was the notable case of a British Airways flight to Lagos where the passengers in economy class mutinied after seeing the plight of a shackled detainee who wouldn't stop screaming, with the supposed "ringleader" arrested and charged only to be cleared over a year later of "behaving in a threatening, abusive, insulting or disorderly manner" towards the crew.

Then again, you wonder what the Sun expects. After all, according to them we roll out the red carpet in welcoming immigrants and asylum seekers in the first place, and the commenters on the piece certainly agree. Might as well extend the gesture when we forcibly throw them out as well then, surely? It does though also prove that simply the government can't do anything right - let too many come here in the first place and spends too much when it gets rid of them, regardless of the much higher cost of keeping them detained here before their deportation - why it bothers when there is simply no political benefit in keeping up such brutal but also ineffective policies remains a mystery. Perhaps, just for the Sun, we could think up something that would negate the need to deport them at all; there are after all many lessons which we can learn from history...

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1/26/2010 09:46:00 pm | |

Wednesday, February 18, 2009 

Abu Qutata?

The somewhat surprising decision by the House of Lords to overturn Abu Qatada's successful appeal against his deportation to Jordan is a faintly disturbing one. Qatada's appeal, although based on what he claims would be breaches of various articles of the European Convention on Human Rights, was only upheld on article 6, the right to a fair trial. The Special Immigration Appeals Committee, which hears evidence in secret and where the appellants are represented by special advocates, had already held that despite Jordan's undoubted deficiencies in its legal system, Qatada's deportation could only be thrown out if there was likely to be a "flagrant" breach of his right to a fair trial under article 6.

The law lords, in turn, have agreed with the initial decision and threw out the appeal court's ruling that SIAC had erred in not putting enough weight on the possibility that the evidence against Qatada was the result of torture. Lord Phillips, in the ruling, argues (paragraph 153):

I do not accept, however, the conclusion that he has derived from this, namely that it required a high degree of assurance that evidence obtained by torture would not be used in the proceedings in Jordan before it would be lawful to deport Mr Othman to face those proceedings. As Buxton LJ observed, the prohibition on receiving evidence obtained by torture is not primarily because such evidence is unreliable or because the reception of the evidence will make the trial unfair. Rather it is because “the state must stand firm against the conduct that has produced the evidence". That principle applies to the state in which an attempt is made to adduce such evidence. It does not require this state, the United Kingdom, to retain in this country to the detriment of national security a terrorist suspect unless it has a high degree of assurance that evidence obtained by torture will not be adduced against him in Jordan. What is relevant in this appeal is the degree of risk that Mr Othman will suffer a flagrant denial of justice if he is deported to Jordan. As my noble and learned friend Lord Hoffmann said in Montgomery v H M Advocate [2003] 1 AC 641, 649

“…an accused who is convicted on evidence obtained from him by torture has not had a fair trial. But the breach of article 6(1) lies not in the use of torture (which is, separately, a breach of article 3) but in the reception of the evidence by the court for the purposes of determining the charge".


The reason why this decision is so troubling is obvious: the Lords have not only ruled that they accept that the trial Qatada is likely to face in Jordan would not reach the standards we would demand under article 6, but also that it's additionally likely that the evidence against him is the product of torture, as he himself claims. This however does not still add up to what the Lords would consider to be a "flagrant" breach of article 6, which is the threshold at which deporting Qatada to Jordan would be unlawful.

Qatada is quite understandably taking his case to his last port of call, the European Court itself, where the ruling could quite possibly turn out to be another landmark, similar to Chalal vs United Kingdom. Nothing should as yet be ruled out, as the House of Lords ruling is in itself something of a surprise, and one which has been criticised by all the main human rights groups.

It has to be said that it is a horrifically difficult decision to have to make, one which Lord Hope authoratitavely comments on at the beginning of his own argument, something well worth quoting in full:

209. Most people in Britain, I suspect, would be astonished at the amount of care, time and trouble that has been devoted to the question whether it will be safe for the aliens to be returned to their own countries. In each case the Secretary of State has issued a certificate under section 33 of the Anti-terrorism, Crime and Immigration Act 2001 that the aliens’ removal from the United Kingdom would be conducive to the public good. The measured language of the statute scarcely matches the harm that they would wish to inflict upon our way of life, if they were at liberty to do so. Why hesitate, people may ask. Surely the sooner they are got rid of the better. On their own heads be it if their extremist views expose them to the risk of ill-treatment when they get home.

210. That however is not the way the rule of law works. The lesson of history is that depriving people of its protection because of their beliefs or behaviour, however obnoxious, leads to the disintegration of society. A democracy cannot survive in such an atmosphere, as events in Europe in the 1930s so powerfully demonstrated. It was to eradicate this evil that the European Convention on Human Rights, following the example of the Universal Declaration of Human Rights by the General Assembly of the United Nations on 10 December 1948, was prepared for the Governments of European countries to enter into. The most important word in this document appears in article 1, and it is repeated time and time again in the following articles. It is the word “everyone". The rights and fundamental freedoms that the Convention guarantees are not just for some people. They are for everyone. No one, however dangerous, however disgusting, however despicable, is excluded. Those who have no respect for the rule of law - even those who would seek to destroy it - are in the same position as everyone else.

211. The paradox that this system produces is that, from time to time, much time and effort has to be given to the protection of those who may seem to be the least deserving. Indeed it is just because their cases are so unattractive that the law must be especially vigilant to ensure that the standards to which everyone is entitled are adhered to. The rights that the aliens invoke in this case were designed to enshrine values that are essential components of any modern democratic society: the right not to be tortured or subjected to inhuman or degrading treatment, the right to liberty and the right to a fair trial. There is no room for discrimination here. Their protection must be given to everyone. It would be so easy, if it were otherwise, for minority groups of all kinds to be persecuted by the majority. We must not allow this to happen. Feelings of the kind that the aliens’ beliefs and conduct give rise to must be resisted for however long it takes to ensure that they have this protection.


That's around as detailed and sound an argument against the tabloid case for kicking them out immediately that could possibly be made. It's therefore a shame that Lords have effectively ruled that both unfair trials and evidence obtained by torture, as long as both occur outside the countries which have signed up to the ECHR and as long as the breach is not deemed to be "flagrant" are in some way acceptable. It's true that this is not their argument, which is as legally sound as it could possibly be, but that is in effect what they have decided. It comes, as we have seen, at a time when our own connivance with torture is being exposed as never before, when questions are being raised about how deeply involved we have been during the initial stage of the so-called war on terror with almost routine breaches of international law. It gives the impression, however undeserved, that our own values concerning such practices are becoming more jaded and diluted just when the opposite should be the case.

Fundamentally, the extended legal drama concerning Qatada should not have ever even began. If Qatada is as dangerous as the government claims he is, and if he is indeed guilty of inciting racial hatred and radicalising Muslims as he is accused of doing, the question remains why he cannot be tried here. Similarly, we still don't know just how involved Qatada was with our security services, when there are claims in the public domain that he was a double agent, albeit one it seems who is still reasonably well respected within takfirist jihadist circles. If the evidence against him cannot currently be considered outside of closed sessions, then intercept evidence needs to be introduced, although it needs to be in any event urgently. Both of these things should have been considered and potentially implemented before we resorted to simply getting rid of him, back to a country with a poor human rights record that by our own courts' admission would not reach our own standards regarding a fair trial. Instead we seem to be making compromises regarding torture that we need not be. That is an indictment of our politicians, rather than our courts of law.

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2/18/2009 11:34:00 pm | |

Wednesday, April 09, 2008 

The right if difficult decision.

The appeal court judges have come to the right if difficult and strewn with problems ruling that Abu Qatada should not be deported back to Jordan. Before jumping on the the typical blaming of the Human Rights Act, it should be noted that the judges' decision was on the grounds that he would not receive a fair trial, not that he was at risk of personally being tortured or mistreated. No one might care if someone who produced fatwas used during the Algerian civil war to kill individuals declared suitably un-Islamic was tortured, but most of us do still care about whether someone receives a trial that doesn't have the appearance of resembling a kangaroo court.

The whole extended legal farce has been one idiocy followed by another. We know quite well that Qatada, much like Hamza and Bakri Mohammad, had at least some sort of relationship with the security services; how far it actually went, whether they were informing or whether there was some sort of pact by where they didn't call for attacks against this country in their preaching is much harder to ascertain. Bisher al-Rawi, formerly held at Guantanamo, was repatriated here because it emerged that he had in fact been helping MI5 all along keep tabs on Qatada, while Jamil el-Banna was approached and urged to become an intelligence asset shortly before he left for Gambia, where he and al-Rawi were subsequently arrested and rendered to Gitmo. Whether this is part of the reason why he has not been simply charged with inciting racial hatred like Hamza eventually was is unclear, but it seems that as with Bakri, the authorities have decided it's much easier to simply get rid of him than to try to build a case against him.

This is strange because despite the case against him in Jordan, it was his preaching here that undoubtedly has influenced some that have subsequently become suicide bombers or plotted terrorist attacks. Like with Hamza and Bakri, the services undoubtedly know what he was up to, and probably have tape after tape of his speeches, or at the very least intercepts of some of his telephone calls. While we simply can't know whether it would be possible to try Qatada here if intercept evidence was allowed in court, a ban that the head of the FBI recently denounced as "untenable", it's difficult to believe that if the government was truly exercised that it couldn't be able to build a viable case against him. Perhaps the difficulty is that unlike Hamza, the US doesn't seem to be making any efforts to attempt to extradite him, where he would undoubtedly face a far longer prison sentence than any he would ultimately face here. Even that isn't certain though, as although Qatada has never been personally linked to any plots here, those recently sentenced have faced sentences of over 20 years.

At the heart of the issue ought to be the acknowledgement that deporting anyone to a country that practises torture, and Jordan is certainly one, with Human Rights Watch only yesterday reporting that up until 2004 Jordan was one of the destinations for those who went through the rendition programme, and they weren't being sent there for the beautiful beaches and excellent prison facilities, ought to be the absolute last resort. Instead the government has used it as the very first resort. "Memorandums of understanding" that aren't worth the paper they're typed on are a ludicrous justification for doing something that we would have never have done prior to 9/11. Under Brown we've been told that despite what Blair said, the rules of the game haven't changed. They ought to prove it by doing the decent thing over Qatada.

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4/09/2008 10:34:00 pm | |

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