Abu Qatada: Law Lords and Government Endorse Torture

There are times when politeness fails, and this, sadly, is one of them. On Wednesday, Britain’s Law Lords shamelessly discarded Britain’s adherence to the European Convention on Human Rights (ECHR) by ruling that Omar Mahmoud Othman (commonly known as Abu Qatada) can be deported to Jordan, and that two other men — known only as Detainee RB and Detainee U — can be deported to Algeria (PDF).

The rights and wrongs of the cases are easily obscured by the hysteria that has grown up around Abu Qatada, who is almost universally described as “al-Qaeda’s spiritual ambassador in Europe,” even though he has never been charged or tried in connection with the allegation.

The problem with the Lords’ ruling, however, is only partly connected with the British government’s refusal to try Abu Qatada and Detainees RB and U for their alleged crimes; the other is that, as a result of this refusal, the government has embarked on a seven-year campaign to imprison terror suspects without charge or trial (and without even questioning them, or telling them what they are alleged to have done), has introduced a system of control orders that amount to house arrest (to which all of these men have been subjected) and has spent long years ingratiating itself with foreign governments whose human rights records are shockingly poor, in an attempt to bypass its obligations — not only under the ECHR, but also under the UN Convention relating to the Status of Refugees, and the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment — not to return foreign nationals to countries where they face the risk of torture.

As Article 3 of the Torture Convention states, “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,” and adds, “For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.”

Is this a big deal? In his book Enemy Combatant, Moazzam Begg described briefly meeting Abu Qatada in 2005, shortly after Begg was released from Guantánamo:

We exchanged greetings and spoke for a while about the hardships of detention without trial. Before I left I asked him one final question. “Sheikh, what’s your opinion about the September 11 attacks?”
“Listen, brother. If I had known anything about it beforehand I would have done all in my power to prevent them.”

In an email exchange last week, Begg explained that he was convinced that Abu Qatada made this comment “not because he loves the USA, but because he believed it would divert attention and support from the very real struggles taking place in the Muslim world.”

This is not, of course, the only time that Abu Qatada has denied being involved in terrorist activities. He has, for example, also denied ever meeting Osama bin Laden, and has stated that all talk of his being a “mentor” to convicted terrorists is mistaken, as he is, instead, a scholar, and a mentor to no one. However, his rhetoric about violent jihad, which can be found by anyone with access to a search engine, is genuinely disturbing, and when government officials describe him as a “dangerous individual,” it appears that they are basing their opinions primarily on first-hand reports made by Omar Nasiri, the pseudonym of a fascinating and eloquent Moroccan, who worked for both the French and British intelligence services in the 1990s. Nasiri, who later wrote Inside the Jihad, an extraordinary book about his experiences, infiltrated Abu Qatada’s meetings at a club in north London, and reported to his masters (and later to his readers) the hypnotic power that Abu Qatada exercised over those who attended.

What is important, however, is that when it comes to the government’s seven-year mission to deport Abu Qatada to Jordan, none of this matters. None of it. What matters instead is the absolute prohibition on deporting anyone to a country where they face the risk of torture, and the knots in which the government has tied itself, by refusing to put these men on trial in the UK.

In the Lords’ ruling on Wednesday, Lord Phillips, citing a British case from 1996 that was reviewed by the European Court of Human Rights, illustrated the importance of Article 3 of the ECHR, which states, simply, “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”:

Article 3 enshrines one of the most fundamental values of democratic society. The Court is well aware of the immense difficulties faced by States in modern times in protecting their communities from terrorist violence. However, even in these circumstances, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the victim’s conduct. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 even in the event of a public emergency threatening the life of the nation. [Note: Article 15 declares that countries may derogate from some parts of the Convention “[i]n time of war or other public emergency threatening the life of the nation,” but not, as noted, Article 3].

Nevertheless, as Lord Phillips proceeded to explain why, in spite of this, he thought it appropriate for Abu Qatada, Detainee RB and Detainee U to be deported, it became clear that a great deal of ingenuity was required to justify his decision and that of his fellow judges. The key to the government’s claims that it is safe to deport Abu Qatada lies with the Memorandum of Understanding (MoU), signed between the UK and Jordan on 10 August 2005, which purported to guarantee that he would not be subjected to torture or ill-treatment, and would receive a fair trial.

It was, to put it mildly, difficult to see how these agreements could be guaranteed in Abu Qatada’s case, firstly because, as Human Rights Watch reported last October, “Torture in Jordan’s prison system is widespread even two years after King Abdullah called for reforms to stop it once and for all … The mechanisms for preventing torture by holding torturers accountable are simply not working.” In a 95-page report (PDF), Human Rights Watch noted that “The most common forms of torture include beatings with cables and sticks and the suspension by the wrists from metal grates for hours at a time, during which guards flog a defenseless prisoner.”

However, a second reason for doubting the Jordanian government’s assurances is that torture hangs over all of Abu Qatada’s history in Jordan. As the Law Lords themselves admitted, when Abu Qatada applied for asylum in the UK in 1993, he did so “on the ground that he had been tortured by the Jordanian authorities, a claim that SIAC [the Special Immigration Appeals Court, the secret court that deals with much of the government’s “War on Terror” detention policies] accepted may well be true.” Moreover, the claim that he could receive a fair trial in Jordan has to be weighed against the fact that he was sentenced in absentia in Jordan in 1999 and 2000 for his alleged involvement with terrorist attacks, even though the defendants who had claimed that he was involved “sought, unsuccessfully, to have reliance on their statements excluded on the ground that they had been obtained by torture.”

Such was the fear that Abu Qatada might not receive a fair trial that, last April, the Court of Appeal reversed an earlier ruling by SIAC, approving his deportation, and concluded that he could not be deported because SIAC had “erred in law” in concluding that he did not face “a real risk of a flagrant denial of a fair trial in Jordan.” The issue, as the Court of Appeal saw it, was that “the unfairness in issue related to the possible use of evidence obtained through torture.”

In reversing the Court of Appeal’s ruling, the Law Lords expended considerable effort analyzing these conflicting viewpoints, but essentially concluded that Abu Qatada would receive a fair trial — or at least, would not receive “a flagrant denial of a fair trial” — for the same reasons that they concluded that he would not be tortured on his return; firstly, because, in October 2005, the Adaleh Centre for Human Rights in Jordan “signed an agreement with the United Kingdom government under which it would monitor the due performance of the obligations undertaken by Jordan under the MoU,” and, secondly, because “the fact that he would have a very high profile, coupled with the MoU, and the diplomatic capital invested in it, meant that the Jordanian authorities were likely to make sure that he was not ill-treated in custody or when he emerged from it.”

I’ve highlighted the word “likely,” because it seems clear that the Law Lords’ basis for endorsing the government’s attempts to sidestep the absolute prohibition on torture is a probability — or perhaps only a possibility — that the Jordanian government will treat Abu Qatada in a humane manner because it might otherwise get a slap on the wrist from David Miliband

Again, you may ask, why does this matter? If Abu Qatada is as significant, and as dangerous, as the government claims, why should we care what happens to him?

In response, I can only state that endorsing the Law Lords’ view detracts, yet again, from a fundamental issue — mentioned briefly at the start of this article — which no one is discussing. Instead of embracing the reviled policy of internment that failed so miserably in the 1970s when it was used on Irish “terror suspects,” or introducing house arrest, whose previous enthusiasts are not renowned for their belief in democracy, or signing deals with dictators to sidestep the absolute prohibition on torture, which, in all honesty, are not worth the paper that they are written on, why does the government not put these men on trial in the UK?

The answer, incredibly, is that “the UK is the only common law jurisdiction to prohibit completely the use of intercepted communications in criminal proceedings,” as the UK-based human rights and law reform organization JUSTICE explained in a detailed report in 2007 (PDF). “By contrast,” the report stated, “intercept evidence has been used in other countries to help convict many of those involved in serious organized crime and terrorism, including al-Qaeda cells operating in the United States following 9/11, the Five Godfathers of the New York Mafia, and war criminals in the Hague.”

The British government’s refusal to use intercept evidence is in spite of the fact that “A significant number of senior police officers, prosecutors, judges and politicians have now called for intercept evidence to be used in criminal trials.” As the report added, in July 2006 the Home Affairs Committee noted that “outside the government there is universal support for the use of intercept evidence in the courts.”

In November 2001, when the government was attempting to defend its decision to hold foreign suspects without charge or trial in Belmarsh — a policy that was ruled illegal three years later by the Law Lords, but was then replaced by control orders — David Blunkett, the home secretary, was asked why SIAC was “being used to review decisions to incarcerate [terror suspects] and [to] imprison [them], indefinitely, without trial and, indeed, without charge,” and, “If evidence exists against the people about whom we have heard, why are they not being charged and tried in this country?”

Blunkett’s reply was, “if the evidence that would be adduced and presented in a normal court were available, of course we would use it, as we have done in the past … [However] in some cases the nature of the evidence from the security and intelligence services will be such that it would put at risk the operation of those services and the lives of those who act clandestinely to help them if that evidence were presented in normal open court.”

It was, and remains, an unintelligible position for the government to take. As JUSTICE explained, “opponents of intercept evidence appear either to dramatically understate or ignore altogether the ability of existing safeguards to protect sensitive intelligence capabilities from being revealed in court proceedings” — for example, through the use of public interest immunity certificates (PII), which “prevent details of methods of covert surveillance, including the identity or even the existence of informants, from being disclosed to defendants.”

Moreover, as Andrew Mitchell MP noted during debates on the Serious Organized Crime and Police Bill in 2005,

The withholding of sensitive information is an uncontroversial and unexceptional daily occurrence in the criminal courts. There is a clear public interest in preserving the anonymity of informers; of the identity of a person who has allowed his premises to be used for surveillance, and of anything that would reveal his identity or the location of his premises; of other police observation techniques; and of police and intelligence service reports, manuals and methods. The police order manual, for example, is protected from disclosure. Techniques relating to intercept systems, procedures, technology and methodology fall into the same category.

Perhaps, after all this, you still think that none of this matters, and that Abu Qatada should, as the government and the Law Lords believe, be deported to Jordan, where he will find out how “likely” it is that he will be treated humanely and receive a fair trial. Perhaps you don’t care, because you are have judged him in advance, without the need for a trial, and you think that, regardless of the possibility that he will be abused in some manner on his return, the absolute prohibition on torture is an unacceptable luxury in these times, when, if certain people in power are to be believed, we face an existential threat more grave than at any other time in our recent history.

If so, I am deeply disturbed, not just because this absolute prohibition only came about after centuries of struggle, and is intended to apply to everyone, and not to include convenient get-out clauses that allow certain people to be scapegoated but not others; but also because, if we peer just beyond the case of Abu Qatada, we can see clearly that the government does not just intend to jeopardize the absolute prohibition on torture in the case of someone it regards as “al-Qaeda’s spiritual ambassador in Europe,” but also in the cases of other men regarded as far less significant, like Detainee RB, an Algerian asylum seeker who is to be deported because he was arrested in 2003 “on charges that included offences under the Terrorism Act 2000,” even though these charges “were later withdrawn,” and even though a government lawyer has described him as nothing more than a “small fish.”

As with Abu Qatada, however, the government’s refusal to join the rest of the world in accepting intercept evidence — if, indeed, there is any in his case — has been replaced by his incarceration without charge or trial, and, as of Wednesday, a ruling that he is to be deported to Algeria. As with Abu Qatada, the government and the Law Lords have had to utilize a great deal of ingenuity to justify their decision. Unlike Jordan, Algeria has not signed a Memorandum of Understanding with the UK, but that has not stopped the British government from deporting Algerians prior to this decision, on the basis that President Bouteflika has improved Algeria’s human rights record, and has “acknowledged and approved a letter from the Prime Minister which included the statement that ‘this exchange of letters underscores the absolute commitment of our two governments to human rights and fundamental freedoms.’” As the Law Lords noted, approvingly, “By longstanding diplomatic convention this amounted to a commitment on the part of the Algerian government to respect those rights.”

As with Jordan, SIAC assured itself that Algeria’s new leaf would be sufficient to ensure that the rights of returned prisoners would be respected. They noted “significant and strengthening mutual ties between Algeria and the United Kingdom,” the importance of “UK investment in Algeria, said to be the largest of any foreign state,” and “the supply and purchase of gas,” as if any of this, which sounded like an international trade brochure, had anything to do with notions of justice. Shifting into hyperbole, the SIAC judges stated, stridently, “Very considerable efforts have been made at the highest political levels on both sides to strengthen these ties,” and concluded that, as a result, “it is barely conceivable, let alone likely, that the Algerian government would put them at risk by reneging on solemn assurances.”

This was an improvement on Jordan, to be sure, as, if returned prisoners did find themselves abused, they could be assured that the government, SIAC and the Law Lords had not only thought that it was not “likely,” but that it was “barely conceivable.” What was particularly disturbing, however, was the Algerian government’s refusal to allow any British representatives to monitor what happened to those who were returned. Bewilderingly, SIAC “concluded that there was nothing sinister in this,” and suggested, incredibly, that human rights organizations could be relied upon to play a proxy role that would ensure compliance. In SIAC’s exact words, “Amnesty International and other non-governmental agencies could be relied upon to find out if the assurances were breached and to publicize the fact.”

There is much more in the Law Lords’ ruling that is worth investigating, for those who have the time and the inclination, but that passage above is so outrageous that, for me, any more commentary just now would be superfluous.

In conclusion, then, from what I have come to understand of the government’s motives, Detainee RB’s case indicates, much more clearly than Abu Qatada’s, that what interests the government more than anything else is the creation of a system that enables it to conveniently circumvent the absolute prohibition on torture so that it can dispose of any foreigners it regards as a threat to national security, without the burden of having to justify its actions in any manner that conforms to the notions of open justice that are the backbone of British society.

I find this absolutely intolerable, and urge anyone who also thinks so to read up on the government’s refusal to accept the use of intercept evidence, and to demand that the British government turns its attention to trials for terror suspects, and not to arbitrary and indefinite imprisonment, house arrest and creative attempts to bypass the absolute prohibition on torture. In the end, these are not only a betrayal of the high ideals of justice on which this country has long prided itself, but are also, as with internment and the “War on the Irish,” dangerously counter-productive.

Note: For information on Detainee U, see “Besieged in Britain,” Victoria Brittain’s excellent article in Race & Class (PDF) and the statement here.
For further information on Detainee RB (also known as BB), see this letter.

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 see here for my definitive Guantánamo prisoner list, published in March 2009.

As written exclusively for Cageprisoners.

For other articles dealing with Belmarsh, control orders, deportation bail, deportation and extradition, 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), 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).