UK Terror Ruling Provides Urgent Test for New Government

18.5.10

Today, the new coalition government faces its first major test regarding the confusing legacy of anti-terror laws inherited from the Labour government, after Mr. Justice Mitting, the judge in the Special Immigration Appeals Commission (SIAC), the body charged with handling terror cases involving deportation, refused to allow the government to deport two Pakistani students, despite concluding that they posed a threat to national security.

The men in question — Abid Naseer and Ahmad Faraz Khan — were seized in the north west of England last April, as part of “Operation Pathway,” an operation that was brought forward after Assistant Commissioner Bob Quick, the head of Scotland Yard’s counter-terrorism command, was photographed in Downing Street carrying classified documents relating to the operation. Quick resigned soon after.

Naseer and Khan were seized with ten other men (eight of whom were also Pakistani students), and soon became known as the “North West 10,” after the government held the Pakistani students for two weeks, on the basis that they were planning a bomb attack on targets in Manchester. They were then released without charge, but were immediately rearrested and told that they were to be deported.

After several months in prison, all but two of the men left the UK voluntarily, although they maintained that they were innocent, and that their reputations had been ruined. Naseer and Khan, however, chose to stay, and today, in a ruling that pitted Britain’s commitment not to deport foreign nationals to countries where they face the risk of torture against innovative measures relating to the proposed deportation of terror suspects, which, over the last eight years, largely united Labour and the Tories, Mr. Justice Mitting declared that, although he was “satisfied that Naseer was an al-Qaeda operative who posed and still poses a serious threat to the national security of the UK and that … it is conducive to the public good that he should be deported,” he could not allow his deportation because “the issue of safety on return” made it legally impossible to deport him. That “issue,” essentially, is Article 3.1 of the UN Convention Against Torture, to which the UK is a signatory, which stipulates that “No State Party shall expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.”

Without a trace of irony, which could be regarded as unusual given recent allegations of British complicity in the torture of British nationals in Pakistan, Mr. Justice Mitting also explained that “there is a long and well-documented history of disappearances, illegal detention and torture” in Pakistan.

He added that Ahmad Faraz Khan could “safely be taken to have been willing to participate” in Abid Naseer’s plans, but granted his appeal on the same basis. He also granted an appeal against exclusion from the UK that was lodged by a third man, Shoaib Khan, who had returned to Pakistan (which means that he can now apply to return to the UK), but refused the appeals of two other returnees, Abdul Wahab Khan and Tariq Ur Rehman.

Quite what the government will do now is as yet unknown. The new home secretary, Theresa May, wasted no time in announcing, “We are disappointed that the court has ruled that Abid Naseer and Ahmad Faraz Khan should not be deported to Pakistan, which we were seeking on national security grounds. As the court agreed, they are a security risk to the UK. We are now taking all possible measures to ensure they do not engage in terrorist activity.”

As the Times reported, the men are currently being held at immigration removal centres, “but are expected to be released later today.” The question, therefore, is whether the Times is also correct to suggest that “It is likely that both men will be put on control orders under which their movements, access to telephones and bank accounts can be restricted” — and whether, if this is the case, it will prove acceptable to Liberal Democrats in the coalition government, who voted en masse against the renewal of the control order regime just two month ago.

Just as important, however, is the question of whether Naseer and Khan are actually a threat to anyone. As the Guardian explained, “The suspicions over the group were founded on the belief that Naseer, a computing student at John Moores University in Liverpool, had links with al-Qaeda, and that emails he sent, in which he mentioned a nikkah, or Muslim marriage contract, were a signal that an attack was imminent.” In addition, Khan came under suspicion because he had taken photos of buildings in Manchester city centre. However, Naseer has always maintained that the emails did not contain coded messages at all, and Khan has stated that he took the photographs because of his interest in architecture. Moreover, investigations into the case have done nothing to suggest that there was an actual plot at all.

After a thorough investigation, Lord Carlile of Berriew QC, the government’s independent reviewer of terrorism legislation, was obliged to concede that none of the arrests had been made “on a full evidential foundation,” and that “the authorities had no specific information as to where the suspected terrorist event was to occur, nor any precise knowledge as to its nature” (PDF). He added that some of the men had essentially been arrested through guilt by association, but attempted to justify the operation by stating that the police were “probably right” to go ahead with it.

Lord Carlile can hardly be judged to have presented a compelling case for “Operation Pathway,” and before there is a right-wing stampede to condemn what former US Vice President Dick Cheney and his close advisers would no doubt have referred to as our “quaint” adherence to the UN Convention Against Torture, it should be noted that those calling for us to discrard our international treaty obligations – essentially by withdrawing from the Convention — should first ask why they are prepared to trust implicitly any information presented by the intelligence services and analyzed by a solitary judge in a secretive court, and not to have its merits debated in an open court.

The key to this apparent problem is to allow the use of intercept evidence in court. Outside of Britain’s particular myopia on this issue, the fact is that most of the world has taken this useful step, and there have been eight reports over the last 14 years in the UK on this very subject, including one by Sir John Chilcot. Moreover, suitable safeguards for protecting sensitive material and sources have also been proposed for many years, and in painstaking detail, by reputable organizations including JUSTICE, the all-party law reform and human rights organization (PDF).

Instead, however, the UK persists in defending a ludicrous and largely improvised legal system, dreamt up after 9/11 and reliant on the presumption of accuracy regarding secret evidence and a demeaning submission on the part of SIAC whenever the words “national security” are uttered, which only whips up xenophobic, Islamophobic and racist sentiment through fearmongering and innuendo, as can be seen from the vile comments below the Times article today.

I was pleased to notice that yesterday the Guardian reported that the government “will attempt to make intercept evidence admissible in court.” Afua Hirsch’s article also noted that “Officials are already looking into reversing the ban, after both the Conservatives and the Liberal Democrats supported a change in the law while in opposition.” A Home Office spokesperson explained, “The government supports the principle of using intercept as evidence in criminal proceedings. This is a complex area and the government will now consider how to build on the work of the privy council committee to bring about a workable solution.”

It is to be hoped, therefore, that the government moves fast. As Matthew Ryder QC, a barrister at Matrix chambers, explained, “Abolishing the rule about intercept [evidence] underpins the rhetoric of both the Conservatives and the Liberal Democrats about control orders and secret evidence. What the government does now will be a serious indicator of whether their views on civil liberties are going to be different, or whether they will accede to security service interests in the same way that Labour did.” Acknowledging that there are “practical problems, which are real,” another senior criminal barrister told the Guardian that intercept evidence “ought to be made admissible,” and that the problems “will have to be confronted and solved, as they are in other countries.”

In the meantime, however, the only winner in the case of the North West 10 appears to be Mr. Justice Mitting, who seems to have backed the government into a corner that, curiously enough, involves “acced[ing] to security service interests in the same way that Labour did.” Were I prone to conspiratorial thoughts, I’d be tempted to suggest that today’s outcome conveniently allows SIAC’s undercover work to continue — but that, surely, is not possible, is it?

Watch this space for further developments.

POSTSCRIPT 9 pm: The BBC reports that the government’s kneejerk response is to set up a Commission to review the Human Rights Act, which the Tories want to scrap, ludicrously (and it’s a plan that is ferociously opposed by the Lib Dems). Moreover, it’s all a smokescreen. At the heart of all this is the UN Convention Against Torture, and I don’t foresee Ministers trying to claim that we should opt out of that.

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 (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in January 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and currently on tour in the UK), and, if you appreciate my work, feel free to make a donation.

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), Another Blow To Britain’s Crumbling Control Order Regime (September 2009), UK Judge Approves Use of Secret Evidence in Guantánamo Case (November 2009), Calling Time On The Use Of Secret Evidence In The UK (December 2009), Compensation for control orders is a distraction (for the Guardian, January 2010), Control Orders Take Another Blow: Libyan Cartoonist Freed (Detainee DD) (January 2010), Control Orders: Solicitors’ Evidence before the Joint Committee on Human Rights, February 3, 2010 and Control Orders: Special Advocates’ Evidence before the Joint Committee on Human Rights, February 3, 2010 (both February 2010), Will Parliament Rid Us of the Cruel and Unjust Control Order Regime? (February 2010), Don’t renew control orders, CAMPACC, JUSTICE and the Joint Committee on Human Rights tell MPs (February 2010), Fahad Hashmi and Terrorist Hysteria in US Courts (April 2010).

2 Responses

  1. Andy Worthington says...

    So it’s now half past midnight and this story has not only gone international, but has also started to produce “outraged” opinion pieces, like “Why do al-Qaeda’s rights trump those of the British people?” in the Telegraph. In the meantime, I’m still wondering quite what the case is supposed to be, and the juxtaposition of two paragraphs in the Times has only reinforced my unease. I’ll elide them so you see what I mean:
    “Police raided properties in northwest England last April after an intercepted e-mail sent by Mr Naseer to an al-Qaeda associate in Pakistan suggested that terrorists planned an attack within days … No explosives or bomb-making equipment were found and none of the 12 was charged with any terrorism offence.”
    So let’s be clear, shall we? This was an imminent attack, but there was never any evidence that any of the materials required for what Gordon Brown described as “a very big terrorist plot” existed at all.

  2. hooproll says...

    UK Anti-Terrorist Laws Are Generating A lot of Adverse Attention…

    Via andyworthington. co. uk The new coalition in the United Kingdom faces a difficult task according to their anti-terror laws that were mandated by the Labour government. A judge openly refused to deport two Pakistani students back to their home count…

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