In the Guardian: Terror deportation debate misses the point

For the Guardian’s Comment is free, “An uncivilized society” is an article I wrote analyzing the new coalition government’s first major test of its commitment to long-established legal principles, and to Britain’s human rights obligations. As I also explained in a previous article, these were tested on Monday when, in the Special Immigration Appeals Commissions (SIAC), Mr. Justice Mitting ruled that two Pakistani students, Abid Naseer and Ahmad Faraz Khan, who were seized last April in connection with an alleged terror plot (for which no evidence of an actual plot was found) cannot be deported because they face the risk of torture in Pakistan, even though, in the judge’s opinion, they pose a threat to the national security of the UK.

As I explained in the Guardian article, the hysterical response of right-wing commentators to this ruling is unsurprising, given that the Labour government, by using secret evidence in terror cases and holding men without charge or trial, created a kind of legal black hole in which fearmongering, whipped up by innuendo, was allowed to thrive.

As I also pointed out, however, critics of the absolute prohibition on torture, to which Mr. Justice Mitting deferred, miss the point when they think that it has anything to do with soft options for terrorists enshrined in the Human Rights Act. The Act, which Labour introduced in 1998, has no power to undo the legally-binding agreement on which it was based — namely, the European Convention on Human Rights (PDF).

Certain Tories — and others of an authoritarian bent — have long had a mistaken belief that, as Peter Oborne described it last October, the Act is “part of an anti-democratic conspiracy that undermines the sovereignty of parliament and hands British liberties over to a foreign court.” In fact, as Oborne explained, the ECHR was introduced by Tories (Winston Churchill and David Maxwell-Fyfe), and contains “deeply Conservative” rights that are “absolutely fundamental to the British common law tradition”, including “the prohibition of torture, first enacted by the Long Parliament in 1640” and “the right to a fair trial, which dates back to Magna Carta.”

Moreover, the prohibition on returning people to countries where they face the risk of torture (the principle of “non-refoulement”) is enshrined in the UN Convention Against Torture, to which the UK — and every other country on earth that claims to be civilized — is a signatory.

As a result, behind the macho chest-beating by advocates for torture, the only plausible solution to a case like that of Abid Naseer and Ahmad Faraz Khan is for them to be kept under surveillance or put under control orders — and it seems, at present, that the former is the preferred option, as Nick Clegg explained yesterday. Although he conceded that it was a “source of great regret” that a lack of a formal agreement with Pakistan regarding the two men had led to the judge’s ruling, he also pointed out, “The law is very clear that it is wrong to deport people where there is risk they will be seriously mistreated, tortured or even killed, however uncomfortable it may be to defend them from time to time,” and added that Naseer and Faraz Khan would be “kept under surveillance … in a manner that means they cannot do harm to the British people.”

This was a remarkably refreshing — and, frankly, unprecedented — announcement by a senior politician regarding issues related to terrorism, but in the long run the only sensible response to this kind of perceived threat is for the government to put terror suspects on trial, and to do that they need to break the intelligence services’ opposition to the use of intercept evidence in courts. As I explained on Tuesday:

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).

As in the US, where defenders of the rule of law are up against torture advocates claiming that Miranda rights are inappropriate for terror suspects, who, in their opinion, should be waterboarded and sent to Guantánamo, those who believe in fair trials in the UK — facilitated by the admission of intercept evidence — are confronted by hysterical commentators who would prefer, instead, that we actively advocate the use of torture and withdraw from binding laws preventing it, while pretending — with no justification whatsoever — that we are “soft on terrorists.”

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), my definitive Guantánamo habeas list, 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).