Another Blow To Britain’s Crumbling Control Order Regime

26.9.09

The logo of the Home OfficeAccording to the British government, a Kurdish Iraqi imam living in the north of England was such a threat to national security that, for the last three years and four months, he was subjected to a control order, a form of house arrest involving, but not limited to curfews, tagging, Home Office vetting of all visitors, a ban on the use of computers and mobile phones, and random security checks at all times of the day or night.

The government has maintained, since May 2006, that it was relying on secret evidence to justify its conclusion that this man — identified only as AE — posed a significant terrorist threat, and that the control order was necessary because it could not compromise its intelligence sources and methods by putting him on trial, which, it maintained, might lead to sensitive information being revealed in court. However, last week, in the wake of a ruling by the Law Lords in June, which gave the government only two options — to provide more information to the control order detainees, to allow them to challenge the basis of their control orders, or to release them outright — home secretary Alan Johnson announced, in a letter to AE’s solicitors, that he had chosen the latter option, and that AE was now a free man.

This outcome had been expected since June, because AE’s case was due in court next week, and the government already knew that a judge would quash his control order, unless officials agreed to provide him with sufficient evidence to challenge his control order, because this is exactly what happened in July, in the cases of two British nationals, and was repeated three weeks ago, in the case of a joint British-Libyan national identified only as AF.

To understand how we came to such a bizarre and ridiculous situation in which, one minute, a man is regarded as one of the most dangerous terror suspects in the UK and held on a control order, and the next minute is a free man, because the government is unwilling to have its evidence tested objectively, we need to return to March 2005, when the control order regime was first implemented, and to understand that, from the beginning, it was an ad hoc system cooked up in haste to replace the government’s previous method of holding terror suspects without charge or trial — imprisoning them in Belmarsh high-security prison — which the Law Lords had ruled illegal in December 2004, three years after it was first introduced.

Critics of the system stated from the beginning that depriving men of their liberty on the basis of secret evidence and refusing to put them on trial because of an anachronistic desire to protect intelligence sources and methods was both unjust and unnecessary, because of the appalling secrecy — special advocates were appointed to deal with the secret evidence in closed sessions, but were prohibited from telling their clients anything about what took place in those sessions — and because organizations like JUSTICE, the all-party law reform and human rights organization, had been demonstrating for years (PDF) that most countries in the world had found ways of presenting sensitive information in court (intercept evidence, for example) without compromising intelligence sources and methods, and that the UK should be no exception.

However, it was not until June that the government was finally obliged to take notice of the mounting opposition to the system, when the Law Lords ruled unanimously that imposing control orders breaches Article 6 of the European Convention on Human Rights, which guarantees the right to a fair trial, because a suspect held under a control order is not given “sufficient information about the allegations against him to enable him to give effective instructions to the special advocate assigned to him.”

In the wake of the Lords’ ruling, the government tried to maintain its composure. Alan Johnson stated that the judgment was “extremely disappointing,” and added, “All control orders will remain in force for the time being and we will continue to seek to uphold them in the courts. In the meantime, we will consider this judgment, and our options, carefully.”

However, it was clear that the regime’s days were numbered, and this was confirmed when, in two cases in July, Mr. Justice Mitting ruled that the government was obliged to drop a control order against a British national and a father of five, identified only as BM, who, in May, was forced to move from his home in east London to a one-bedroom flat in Leicester on the basis of claims by the Home Office that he was “a prominent member of a network of Islamist extremists,” and followed up by ruling that the government’s secrecy regarding the evidence against another British national, identified only as AN, had “gone so far as to deny AN knowledge of the essence of the case against him,” and it was reinforced when AF’s control order was quashed by a judge three weeks ago, and the home secretary again gave up the fight, choosing to grant AF his liberty rather than reveal any of the secret evidence against him.

Long-standing critics of the regime were not the only observers to wonder how dangerous these men could really be if, after years of being treated as though they were particularly explosive packages, who would detonate if left unobserved for more than a minute, the government chose to grant them total freedom rather than test the allegations against them in open court.

It follows, of course, that questions must inevitably be raised regarding the quality of the government’s supposed evidence, and the reliability of the intelligence services, and the only conclusion I can reasonably draw is that the government was content to deprive people of their liberty on little more than a whim, or a hunch based on ill-defined associations and untested raw intelligence reports, and certainly not on the basis of anything that could objectively be examined and considered as evidence.

While I wait to see whether the remaining 14 control orders will, as anticipated, also be quashed (and note that another appears to have been quietly dropped by the government over the last few months, with no fanfare and no announcements whatsoever), and while I also wait to see how the government will respond to forthcoming challenges in the cases of other men held on deportation bail, rather than on control orders, I leave the final word on AE’s case, for now, to Mohammed Ayub, his solicitor, who told the Guardian:

For three-and-a-half years he and his family have had to live a life which has been controlled in every respect by the Home Office: where he lives, when he may go out, where he may go, who he may meet, what employment he may undertake. During the whole of this period, he has never been told on what basis he is suspected of being a terrorist and he has never had a fair hearing before a court at which he could challenge the allegation made against him.

Ayub explained, as the Guardian described it, that AE, his wife and three children “might not get over the psychological harm of the past three years,” and added, “AE will consider carefully his legal options in respect of seeking damages from the home secretary for the wrong that has been done him and his family.” He also stated that control orders were “fundamentally oppressive and unfair”, and “flawed in their conception, execution and review.”

This prompted a rote response from a Home Office spokeswoman, who, as the Guardian put it, said that “revoking the order did not change the assessment that control orders remained the best available disruptive tool for managing the risk posed by suspected terrorists they could not prosecute or deport,” but it is unlikely that this “assessment” will prevail, as Alan Johnson has asked Lord Carlile, the government’s “independent reviewer” of terrorism laws, to report back on whether control orders should continue, and even Carlile, a supporter of the regime in principle, has stated in his annual reports (PDF) that no control order should be extended beyond two years “save in genuinely exceptional circumstances.”

In a recent statement, backed up by peers and MPs on the Parliamentary Human Rights Committee, Carlile refuted claims by the Home Office that “A definite end-date would mean individuals on control orders could simply disengage from involvement in terrorism-related activity on the basis that they knew they could re-engage at the end of that time period,” reiterating his assertion that control orders lasting more than two years can only be justified “in a few exceptional cases,” and telling the Committee, “After that time, at least the immediate utility of even a dedicated terrorist will seriously have been disrupted.”

With these opinions so publicly available, it appears that Lord Carlile is unlikely to present the government with a new escape route, and that the UK may, finally, have to rejoin the majority of the civilized world in accepting that, even in the struggle against terrorism, it is unacceptable to imprison men — or otherwise deprive them of their liberty — on the basis of secret evidence.

Note: For a BBC interview with AE, recorded in June, see here.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed. Also see my definitive Guantánamo prisoner list, published in March 2009, and if you appreciate my work, feel free to make a donation.

As published exclusively on Cageprisoners.

For other articles dealing with Belmarsh, control orders, deportation bail, deportations and extraditions, see Deals with dictators undermined by British request for return of five Guantánamo detainees (August 2007), Britain’s Guantánamo: the troubling tale of Tunisian Belmarsh detainee Hedi Boudhiba, extradited, cleared and abandoned in Spain (August 2007), Guantánamo as house arrest: Britain’s law lords capitulate on control orders (November 2007), The Guantánamo Britons and Spain’s dubious extradition request (December 2007), Britain’s Guantánamo: control orders renewed, as one suspect is freed (February 2008), Spanish drop “inhuman” extradition request for Guantánamo Britons (March 2008), UK government deports 60 Iraqi Kurds; no one notices (March 2008), Repatriation as Russian Roulette: Will the Two Algerians Freed from Guantánamo Be Treated Fairly? (July 2008), Abu Qatada: Law Lords and Government Endorse Torture (February 2009), Ex-Guantánamo prisoner refused entry into UK, held in deportation centre (February 2009), Home Secretary ignores Court decision, kidnaps bailed men and imprisons them in Belmarsh (February 2009), Britain’s insane secret terror evidence (March 2009), Torture taints all our lives (published in the Guardian’s Comment is free), Britain’s Guantánamo: Calling For An End To Secret Evidence, Five Stories From Britain’s Guantánamo: (1) Detainee Y, Five Stories From Britain’s Guantánamo: (2) Detainee BB, Five Stories From Britain’s Guantánamo: (3) Detainee U, Five Stories From Britain’s Guantánamo: (4) Hussain Al-Samamara, Five Stories From Britain’s Guantánamo: (5) Detainee Z, Britain’s Guantánamo: Fact or Fiction? and URGENT APPEAL on British terror laws: Get your MP to support Diane Abbott’s Early Day Motion on the use of secret evidence (all April 2009), and Taking liberties with our justice system and Death in Libya, betrayal in the West (both for the Guardian), Law Lords Condemn UK’s Use of Secret Evidence And Control Orders (June 2009), Miliband Shows Leadership, Reveals Nothing About Torture To Parliamentary Committee (June 2009), Britain’s Torture Troubles: What Tony Blair Knew (June 2009), Seven years of madness: the harrowing tale of Mahmoud Abu Rideh and Britain’s anti-terror laws, Would you be able to cope?: Letters by the children of control order detainee Mahmoud Abu Rideh, Control order detainee Mahmoud Abu Rideh to be allowed to leave the UK (all June 2009), Testing control orders and Dismantle the secret state (for the Guardian), UK government issues travel document to control order detainee Mahmoud Abu Rideh after horrific suicide attempt (July 2009), Secret evidence in the case of the North West 10 “terror suspects” (August 2009), Letting go of control orders (for the Guardian, September 2009).

13 Responses

  1. Andy Worthington says...

    So this comment came from David Mery, an admirable campaigner into another disturbing aspect of state control — DNA databases and the surveillance state. Please follow his link at the bottom — and congratulations, David!:

    Andy,

    Thanks. Hopefully this is the start of a review of *all* the uses of secret evidence.

    I’m catching up with all the news as I had a small personal news that has been keeping me busy. I eventually obtained an apology and some compensation from the Metropolitan Police Service, four years one months and 26 days after they unlawfully arrested me:
    http://gizmonaut.net/blog/uk/2009/09/mps_apologises.html

  2. AniTa H says...

    Too bad the US doesn’t follow suit with all the poor Guantanamo prisoners.

  3. Andy Worthington says...

    Thanks for the comment, Anita. The Obama administration is getting there slowly, but oh so slowly, and with such unwarranted caution …

  4. Iain Parkes says...

    And they wonder why the majority of people in this country do not want Identity Cards or the Database that underlines it……

    This government is totally corrupt and needs to be voted out of power ASAP!

  5. Dakotahgeo says...

    Where the HELLL do these governments get the power to put into practice all of these illegal laws, no matter WHAT country is involved. Where is the UN Court of Criminal justice and War Crimes when this should be their area of responsibility…? Good Heavens! I don’t mind terrorists being jailed but let’s try and make sure they are actually terrorists!
    What a bunch of hooey!!!

  6. Dakotahgeo says...

    Thank you, Anita and Andy, but until and unless the United States deals with the sins of the Bush/Cheney Crime Wave, they have absolutely no right to even interrogate, much less imprison so-called terrorists from anywhere. Right now the United States is embroiled in domestic terrorism by the lunatic right wing fringe and I’m not half as worried about Islam or Muslims as I am about our own hillbilly mentality (which seems to be rampant everywhere, with or without the hills). We need to shovel our own porch clean before we do a dusting of others’ porches! Thank God we have the new Administration of PRESIDENT Obama at the helm; it may move slowly but at least it isn’t in reverse, e.g., 2000-2008!

  7. Andy Worthington says...

    If only there was somebody better waiting in the wings, Iain …

  8. Andy Worthington says...

    Hi Dakotahgeo,
    Good to hear from you, and I’m totally with you about dealing with the sins of the Bush/Cheney Crime Wave …

  9. Docmann says...

    Until the causes of torrorism are redressed the threat will remain. The exploitation and corruption of the young, weak and helpless, the vicious, brutal unprovoked aggression against sovereign states by the U.S.A. and its lackeys will always inflame an opposition that, lacking military equipment, will pursue guerilla tactics. Setting up a police state is no sure protection.

  10. Andy Worthington says...

    Hi Docmann,
    That’s today’s “hitting the nail on the head” analysis! Thanks for dropping by.

  11. opit says...

    I’m afraid I tend to the idea that things were ever thus : we indulge in selective memory aided by constant bafflegab. The Emergency Powers of the War Measures Act being put into place full time needed a false threat to ‘justify’ rolling back legal ‘protections’ – British Common Law really – mandated by the Magna Carta. Thus ‘Islamofascism’ : and ‘We Were Always at War with Oceana’ ( Orwell ).
    You have quite a list of revelations. I collect such. Here’s one index from my.opera.com/oldephartte/links/ ‘Lists forwarded to Blogger’ http://opitslinkfest.blogspot.com/2009/07/perception-alteration.html

  12. Andy Worthington says...

    Thanks, Opit. Good to hear from you — and the Orwell analogy is very apt!

  13. Calling Time On The Use Of Secret Evidence In The UK by Andy Worthington « Dandelion Salad says...

    [...] to do so. As a result, several men who were once so casually described as terrorists have actually had their control orders quashed, indicating that, when it comes down to it, the government has been required to look long and hard [...]

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