As sensationalist tabloid headlines lambast Britain’s Home Secretary Theresa May for her failure to get Abu Qatada, the country’s number one terrorist suspect, deported, relatively little attention has been paid to how counter-terror policy undermines the rule of law. Abu Qatada, a Jordanian national, was arrested and held in October 2002 under The Anti-Terrorism, Crime and Security Act 2001, which allowed the indefinite detention without trial of international terrorist suspects. Ten years later, he has yet to face an open trial.
He is accused of fundraising on behalf of terrorist organizations and making public statements in support of their violent activities. In Jordan he has been tried in absentia and found guilty of conspiracy to cause explosions.
Yet rather than charge Qatada with one of many terrorism offences for which the courts claim there is strong evidence, the Home Secretary (David Blunkett at that time) instead opted to detain him indefinitely without trial. Unsurprisingly, in the 2004 case of A and Others, the House of Lords held that the indefinite detention of foreign national terrorist suspects was incompatible with the European Convention on Human Rights. Lord Hoffman, one of the judges on the case, remarked in relation to The Anti-Terrorism, Crime and Security Act 2001 that ‘the real threat to the life of the nation… comes not from terrorism but from laws such as these.’ As a result, the Prevention of Terrorism Act 2005 hastily introduced a control order regime, allowing the Home Secretary to place stringent conditions on terrorist suspects’ movements and introducing strict limits on the amount of time they are allowed out of their place of residence. Again, all without trial. Qatada was placed under such an order for a few months before being detained again pending deportation.
Appeals against the decisions of the Home Secretary were primarily made to the Special Immigration Appeals Commission (SIAC) – a court with procedures described by the Joint Committee on Human Rights as ‘Kafkaesque’ and ‘against basic notions of fair play as the lay public would understand them’. When appealing to the SIAC, alleged terrorists and their legal teams are not permitted access to all the evidence against them. Instead, ‘special advocates’ are appointed to challenge classified material on their behalf. Having seen the classified material, however, the special advocate is allowed minimal contact with the accused and therefore has to represent them without being able to discuss the evidence. This is intended to protect the methods of the security services, their sources and their relationships with foreign intelligence agencies. In practice, it means the accused is often unaware of the case against them. Qatada has had insufficient opportunity to challenge effectively his ongoing detention and certification as a terrorist suspect.
Whereas in a criminal trial the prosecution must demonstrate guilt beyond reasonable doubt, before the SIAC the standard is reasonable suspicion. Yet for justice to be done, guilt must be established beyond reasonable doubt under the safeguards of the criminal legal system, regardless of the strength of evidence and the gravity of the accusations facing an alleged terrorist.
One of the most disturbing features of recent British counter-terrorism policy is the use of Memorandums of Understanding (MoUs). These are diplomatic assurances under which terrorist suspects are removed to countries otherwise deemed too dangerous for deportation. Britain has entered MoUs with Jordan, Ethiopia, Lebanon and Libya, and has a similar agreement with Algeria. None of these countries are honouring their legally binding obligations under the UN Convention Against Torture, yet it is asserted that non-legally binding MoUs will ensure the safety of deportees from mistreatment. In its most recent judgment on the Qatada case, the European Court of Human Rights notes the criticism that such agreements undermine the existing framework for the prevention of torture and are intrinsically unsafe. Yet the court concludes that an MoU with Jordan would safeguard Qatada against ill treatment. It seems irrational to assume that fear of condemnation from Britain, for breach of a diplomatic agreement, is sufficient to safeguard a deportee accused of international terrorism. In breach of international law, Jordan has failed to curb systemic torture and to allow international monitors to interview detainees.
Qatada has now been refused leave to appeal to the Grand Chamber of the European Court of Human Rights. In deporting foreign nationals to face trial in countries where torture is systemic, Britain is endorsing dangerously unsafe legal proceedings. It is also jeopardizing the binding legal framework that unconditionally prohibits torture. This is not bringing terrorist suspects to justice. It is undermining it.
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