If Abu Qatada Is Guilty Of Crimes, Why Not Prosecute Him In UK? – OpEd

When it comes to dealing with Muslim “terror suspects” in the UK, and recent rulings by the European Court of Human Rights preventing the British government from deporting Abu Qatada to Jordan, but approving the extradition to the US of Abu Hamza, Babar Ahmad, Talha Ahsanand two other men, it is often difficult to discern notions of justice, fairness and a sense of proportion when the opinions of so many politicians and media outlets are clouded by hysteria and — often — racism that is either thinly-veiled, or not even hidden at all.

The problems with the planned deportation of foreign nationals to their home countries, and the extradition of foreigners and British nationals to the US, began under Tony Blair, when, in the wake of the 9/11 attacks, the government implemented a policy of detention without charge or trial on the basis of secret evidence, and also signed an extradition treaty with the US that required little, if anything in the way of evidence to be provided before “suspects” could be extradited to the US.

In a follow-up article, I will look at the cases of Abu Hamza, Babar Ahmad, Talha Ahsan and the two other men whose extradition to the US was approved last week, but for now I want to focus on the case of Abu Qatada, and his planned deportation to Jordan.

Tony Blair’s policy of detention without charge or trial involved rounding up a number of foreign nationals alleged to be terror suspects — including Abu Qatada –  and imprisoning them on the basis of secret evidence that was not disclosed to them. The intention — as well as removing their right to a trial in the country that had exported habeas corpus around the world — was to deport these men to their home countries, ignoring the fact that the UN Convention Against Torture (to which the UK is a signatory) prohibits the return of anyone to a country where they face the risk of torture.

For three years, Blair held his handful of alleged terror suspects in prison without charge or trial, on the basis of secret evidence that was not disclosed to them, until the law lords told him that was illegal. He then persuaded Parliament to back control orders, a form of house arrest, which, again, involved holding people without charge or trial, on the basis of secret evidence, as he signed “memoranda of understanding” with untrustworthy dictators purporting to guarantee that if he returned the suspects to their home countries, they would be treated fairly and humanely, and not tortured, disappeared or subjected to show trials.

Unfortunately for Blair, the courts were not, for the most part, swayed by his arguments. Judges prevented the forcible return of a number of Libyans who had sought refuge from Col. Gaddafi in the UK, but had then been betrayed as part of the UK’s new friendship with Gaddafi. However, in February 2009, the Law Lords finally endorsed the forced repatriation of foreign nationals to countries with dubious human rights records, despite their fears of torture, ruling that the cleric Abu Qatada, routinely described as Osama bin Laden’s spiritual advisor in Europe (even though no court has ever established whether or not that was true), could be returned to Jordan, and that a handful of Algerians could also be repatriated.

The reasons for believing that Abu Qatada and the Algerians would be safe — and that Britain would not be deliberately undermining the UN Convention Against Torture — were, to be blunt, ludicrous. The Lords claimed that Qatada was too famous to be tortured, and that, in any case, human rights groups would be able to monitor Jordan’s compliance with its promise to treat him humanely. The same outsourcing of responsibility was extended to Algeria, where, the Lords claimed, Amnesty International would be able to monitor the Algerian government’s compliance with its promise.

As a result, of course, Abu Qatada and the Algerians appealed to the European Court of Human Rights, leading to the alarming spectacle of lawless hysteria from Britain’s elected leaders when the Court finally ruled, two months ago, that there was a “real risk” that Qatada would face a trial where evidence used against him had been obtained by torture, denying him access to a fair trial in violation of Article 6 of the European Convention on Human Rights.

Abu Qatada was released on bail, but the UK government immediately embarked on high-level negotiations with the Jordanian government, designed to ensure that the ECHR’s objections could be overcome if the Jordanians promised that they would not use any information derived through the use of torture in any trial to which Qatada would be subjected on his return.

On April 17, the home secretary Teresa May told Parliament that the UK had received “new assurances from Jordan,” which would enable [Abu Qatada] to be sent back without breaching the European convention on human rights.” She warned, “Deportation might still take time — the proper processes must be followed and the rule of law must take precedence — but today Qatada has been arrested and the deportation process is under way.”

As the Guardian noted:

The deal includes elevating the existing Jordanian legal ban on using evidence obtained through torture to a constitutional right and a promise that a majority of the judges on the state security court trying his case would be civilians. It also includes the highly unusual provision of pardoning and releasing two of Qatada’s original co-defendants, who were convicted of taking part in the original bombing attacks. Their evidence was critical to Qatada’s conviction in absentia but both made credible allegations that they had been tortured.

However, although this was evidence of detailed negotiations in the last two months, not everyone was convinced that the government had done what it claimed. Qatada’s barrister, Edward Fitzgerald QC, said May’s claims were “nothing more than a ‘desperate attempt to claim that everything had changed’ when the reality was that it amounted to ‘very little indeed,’” as the Guardian explained, and “warned that the new round of legal challenges threatened to be prolonged.” The Guardian also noted that challenging the deportation would mean “testing in the British courts May’s claim that the Jordanian assurances overcome Strasbourg’s human rights objections.”

On April 18, the European Court of Human Rights intervened, halting Qatada’s deportation less than 24 hours after Teresa May promised that it was both imminent and lawful, and causing huge embarrassment to the government when it was revealed that the home secretary thought that the three-month deadline for appeals expired on Monday evening, when in fact it expired on Tuesday evening, and Qatada’s lawyers had lodged an appeal at 11 pm.

As the Guardian described it, an ECHR spokeswoman said this meant that “the legal block” on Qatada’s deportation “remained in force until a panel of European judges decided whether the case should go to the court’s grand chamber on appeal,” adding that no date had yet been decided for that hearing.

In reflecting on what this whole sorry saga reveals, it is important to look behind the hyperbole, the lies and the distortions, to ask two important questions that are largely overlooked: what has Abu Qatada done, and why can’t he be tried in the UK?

What has Abu Qatada done?

It’s a good question, and this excerpt from a Guardian article in February helps to put some of the more hyperbolic claims in context:

Abu Qatada is accused by the Home Office of being “a significant international terrorist” and the spiritual guide of Mohamed Atta, one of the al-Qaida terrorists who piloted a jet into the World Trade Center on 11 September 2001.

The British authorities believe he has had links with Ayman al-Zawahiri, the former leader of Egyptian Islamic Jihad, who effectively became Osama bin Laden’s deputy. They also say he was a significant spiritual leader to the al-Tawhid movement, whose leader was Abu Musab al-Zarqawi and whose Iraq-based terrorist group beheaded the British man Kenneth Bigley.

The UK government says Qatada has raised funds for terrorist groups, and gives religious legitimacy to suicide bombers. Based in the UK for the last 19 years, he has spent almost all of the time since 9/11 in jail without charge.

In a 2005 summation of its case for his deportation to Jordan, the Home Office wrote: “The presence of Abu Qatada in the UK poses a continuing threat to national security and a significant terrorism-related risk to the public.” It said he had engaged in conduct that “facilitates and gives encouragement to the commission, preparation and instigation of acts of terrorism”.

The security case stated: “He provides advice which gives religious legitimacy to those who wish to further the aims of extreme Islamism and to engage in terrorist attacks, including suicide bombings. A number of individuals arrested or detained in connection with terrorism have acknowledged his influence upon them.”

But the UK authorities accept his role as an al-Qaida organiser was limited.

“We accept that [Qatada] encouraged and raised funds for individuals to go to Afghanistan; he may not have gone further as an organiser,” the Home Office said in 2005.

Qatada has said he has used his influence to curb extremist activities, and appealed for Bigley’s release. He also offered to make an appeal for the release of Alan Johnson, the BBC reporter who was seized in Gaza in 2007.

Further analysis was provided by Richard Norton-Taylor, whose Guardian article (also from February) is cross-posted below in full, as it provides an important insight into the potential embarrassment caused by the government’s inabiity in the 1990s to understand the threat posed by his militancy, and the possible embarrassment regarding any airing of the cases of Bisher al-Rawi and Jamil El-Banna, who had helped MI5 keep tabs on Qatada (or had been approached by MI5), but were rewarded by being kidnapped in the Gambia on a business trip and spending five long years in Guantánamo. This was, and is a great disgrace, although it has largely remained hidden from common knowledge. However, Norton-Taylor also singled out arrogance as a key ingredient, and the foolish presumption that deportation would be easy — as though the prohibitions on torture were somehow irrelevant.

Why has Abu Qatada not stood trial in the UK?
Richard Norton-Taylor, The Guardian, February 6, 2012

Why cannot Abu Qatada, described as a dangerous man who poses a grave threat to Britain’s national security, be charged with criminal acts and put on trial in a British court? There are a number of possible answers.

One is that embarrassing information about MI5 and the Met police would come out in court. When Qatada came to the UK in 1994 as a refugee, MI5 believed he was not dangerous. Comments by the well-known Spanish judge Baltasar Garzón describing Qatada as the “spiritual head of the mujahideen in Britain” were dismissed by British security and intelligence sources as overblown.

MI5 was sharply criticised by the Special Immigration Appeals Commission (SIAC) in 2007 for misjudging Qatada, who had argued in one of his appearances before the commission that MI5 “knew the sort of views which he was expressing and took no steps to stop or warn him, to prosecute him or prevent his fundraising for groups which are regarded as terrorist groups … or for training in Afghanistan”.

According to the SIAC judgment, that inaction was based upon “an erroneous assessment of the damage which the preaching and propagating of radical views could do within this country and elsewhere”.

MI5 later came to realise that Qatada’s preaching and incitement was potentially dangerous and harmful. It approached him and tried to persuade him to tone down his jihadist talk, at least insofar as it was addressed to audiences here.

Qatada appeared to dismiss MI5′s approaches and in 2001 he began trying to justify suicide attacks. That year police found £170,000 in cash in his home, including £805 in an envelope labelled “for the mujahideen in Chechnya”. Richard Reid, the failed shoe bomber, and Zacarias Moussaoui, both jailed on terrorism charges, were said to have sought advice from Qatada. Some his sermons were found in a Hamburg flat used by some of those involved in 9/11.

One view expressed in Whitehall is that there is insufficient evidence to convict Qatada at a trial. Qatada was not a bombmaker, nor did he ever plan to plant bombs, it is argued. His role was that of a radical preacher, to influence by words, not deeds.

Yet he did not mince his words. It is not as though the evidence is confined to telephone taps, the product of which is still inadmissable in criminal trials in the UK. In 2007 SIAC ruled that Qatada had “given advice to many terrorist groups and individuals … His reach and the depth of his influence in that respect is formidable, even incalculable.” A year later the SIAC judge, Mr Justice Mitting, said Qatada “expressed very forcefully his views direct to me” and he “has shown no inclination of any change in attitude”.

Well before then, a plethora of anti-terrorist laws had been passed to cover a very wide range of offences, including incitement. The 2000 Terrorism Act made incitement to terrorism overseas a criminal offence.

MI5 and the police might not have welcomed a trial because it would have resurrected the circumstances surrounding the seizure by the CIA of two British residents — Jamil el-Banna, a Jordanian national, and Bisher al-Rawi, an Iraqi — in Gambia in 2002, leading to their rendition to Guantánamo Bay. MI5 documents disclosed in court describe the agency’s attempt to recruit Banna as an informer eight days before he flew to Gambia for a business trip. Rawi had also helped MI5 to obtain information about Qatada. Banna had prayed in the same mosque as Qatada when they lived in Peshawar, Pakistan. Banna, Rawi and Qatada later prayed in the same mosque in London.

Lawyers familiar with the long-running case say the government was determined to go down the deportation route, one that would have avoided any potential embarrassment or problems with evidence emerging in court here. It was an easy option, it was thought. Instead, because Jordan has refused to promise it would not use evidence obtained by torture in his trial there, a serious national security threat remains here, convicted of no crime.

*****

Another important perspective on Qatada was provided by Eric Metcalfe, a barrister specialising in human rights and public law, who was previously the director of human rights policy at JUSTICE, thew all-party law reform and human rights organisation, and was the author of its 2011 report, “Freedom From Suspicion: Surveillance Reform for a Digital Age” (PDF). In another important Guardian article, also cross-posted below, Metcalfe followed up on some of the problems touched upon by Norton-Taylor, asking, in essence, “what the government should do with those foreign nationals it suspects of involvement in terrorism, but can’t deport on human rights grounds,” and explaining that the answer is as it has always been: “build a case against them and prosecute them in open court, rather than resort to such dodgy alternatives as control orders, terrorism prevention and investigation measures or deals with countries that use torture.”

Abu Qatada’s freedom is the price of liberty
By Eric Metcalfe, The Guardian, February 7, 2012

“Free to sponge off the country he hates” was how the Sun reported the news that Abu Qatada will be freed on immigration bail after more than six years in Long Lartin prison, speculating that he is likely to claim benefits. (Having been stripped of his refugee status, it seems unlikely that he could seek work without the permission of the home secretary.) The Daily Mail led with the observation that “one of the world’s most dangerous fanatics” will shortly be free to “walk his youngest child to school”.

In reality, Qatada may soon be able to walk his kids to school, but he will hardly be free. The initial terms of his immigration bail will require him to remain at home for all but two hours a day, together with all the usual restrictions on things like visitors, meetings with others, phone and internet use. The restrictions may be lifted in time, but nobody in their right mind would confuse this kind of house arrest with freedom.

If Abu Qatada is as dangerous as the government and the Special Immigration Appeals Commission (SIAC) say he is, then why release him at all? The simple truth is that, not having been charged or convicted with a criminal offence in this country, he is as entitled to his liberty as you or me. He remains, of course, subject to immigration control and that explains why he has spent most of the past decade in prison. But — as Lord Bingham pointed out in the Belmarsh case — using “an immigration measure to address a security problem” is inevitably discriminatory because it means treating foreign terrorist suspects much more harshly than terrorist suspects who are British citizens.

All of which brings to the fore the long-running debate over what the government should do with those foreign nationals it suspects of involvement in terrorism, but can’t deport on human rights grounds. The principled answer is, as always, to treat them exactly the same way as those British citizens they suspect of terrorism offences: build a case against them and prosecute them in open court, rather than resort to such dodgy alternatives as control orders, terrorism prevention and investigation measures or deals with countries that use torture.

Indeed, as many have already pointed out, there is hardly any shortage of offences with which to charge Abu Qatada if there are genuine suspicions he has been involved in terrorism here. Incitement to murder has been on the statute books for more than a century and a half, for instance, and was used to convict Abu Hamza in 2006. The more likely explanation, as Richard Norton-Taylor notes, is that Qatada hasn’t been prosecuted because of the embarrassment it may cause to the security services.

Qatada, then, is likely to join that largish category of British suspects that the police and intelligence services keep under surveillance for the indefinite and uncertain future. No doubt that is an expensive proposition, but then so is keeping people who have not been convicted or even charged in prison for years on end. In the absence of prosecution nor any realistic prospect of his deportation, therefore, Qatada is likely to be delivering his kids to the school gate for some time to come.

A lot of people will think that this is a liberty that he does not deserve, and they may well be right. But, as a US supreme court justice once observed, “the safeguards of liberty have frequently been forged in controversies involving not very nice people”. Qatada has been freed because of the importance that we give in this country to the right to liberty and the rule of law and — much as that may outrage some editors — it is decidedly a better country as a result.

*****

The possible deportation of Qatada has changed some elements of Eric Metcalfe’s scenario, but the principles remain — that if a crime has been committed, the alleged criminal should be tried in open court and imprisoned if convicted — and while we wait to see what will happen next, I’d like to conclude my round-up of some of the more interesting analyses of Abu Qatada’s case, and what it means, to Peter Oborne, who wrote an excellent article for the Daily Telegraph (also in February), calling for the law to be respected, and heaping scorn on those who — whether Labour, Liberal Democrat or Conservative — have called for exceptions to be made in the case of alleged foreign terrorists, as though the law had not endured terrorist threats before, and as though other icons of this type of response — the Bush administration’s triumvirate of Guantánamo, extraordinary rendition, and secret torture prisons — did not demonstrate the folly of such an approach.

The rule of law in Britain is diminished by the furore over efforts to deport Abu Qatada to Jordan
By Peter Oborne, The Daily Telegraph, February 8, 2012

It has been very clear for a long time that something has gone wrong with British justice. A succession of Home Secretaries have targeted, at different times, each of the central principles that underlie the national system of law: trial by jury, habeas corpus, free speech, as well as the abiding tenet that there should be a strict separation of powers between the judiciary and the executive.

This magnificent legal inheritance has been a guarantee of freedom and fairness in this country since the Middle Ages. But — as Tuesday’s wretched debate in Parliament about Abu Qatada demonstrates so nicely — this tradition is no longer of interest to the political class.

Abu Qatada certainly seems to be a thoroughly undesirable and nasty piece of work. Tapes of his sermons were discovered in a flat used by one of the Twin Towers bombers. He is accused of being the spiritual leader of al-Qaeda in Europe, and is sought in his native Jordan for an attempt to murder tourists. Not merely that — he is on record as justifying suicide-bombing and, it is said, preaching anti-Semitism.

On top of everything else, there is the fundamental, stinking hypocrisy of a man who appears to have a contempt for human rights making use of the best British lawyers to guarantee his own freedom to live with his large family on British benefits.

Most of the above is an offence under the British legal system, which regards incitement to murder and hate crimes as very serious offences. Indeed, if even a fraction of what is claimed is true, it would surely have been an easy matter to press charges against Qatada and have him sent to jail for a long period.

But this has not been the approach taken by the British Government. We have preferred not to press charges, instead holding him under the various forms of house arrest made possible by recent anti-terrorism legislation. More recently, we have attempted to deport Qatada to Jordan, but this strategy has rightly fallen foul of the European Court of Human Rights in Strasbourg — which refuses to countenance the idea that any individual should be deported to a country that practices torture.

Mysteriously, however, this decision has been condemned as an outrageous assault on British sovereignty, while the Strasbourg Court is under attack as an alien construction, hostile to British history, law, freedom and our national identity.

It is time that the case was heard for the defence. Certainly, it should be conceded that those who claim protection from the European Court are often suspicious or unattractive men and women, and many of them foreigners. Abu Qatada is a near perfect example of this kind of phenomenon. But the brutal truth is that obnoxious and unpopular figures are exactly those who most desperately need the protection of the law.

Consider this: there is nothing on this earth more British than the instinct to stand up for the underdog or the pariah, however unpopular or unattractive he or she might be. And there is no institution — not even the MCC or the Lawn Tennis Association — more British than the European Court of Human Rights.

It was inspired by Sir Winston Churchill, eager in the aftermath of the Second World War and the Holocaust to export the British system of fairness and decency. Churchill ensured that its founding document was drafted by a British politician, David Maxwell Fyfe, later to become a Conservative Lord Chancellor. Every single one of the great ideas that were to be embodied in the European Convention — freedom from torture, restraint on the power of the state, freedom under law — was an ancient British principle transferred on to the European stage.

It should be a matter of enormous national pride that an institution so profoundly British in its inspiration has refused to send an Arab fundamentalist (however despicable his crimes are alleged to be) to Jordan, where he might be tortured, or at best face the prospect of being sent to jail on the back of evidence acquired from a torture victim. Yet this decision has been greeted with horror by all three of our main political parties.

Tuesday’s Commons debate, in particular, was a day of shame for Parliament, once famed as the cockpit of freedom and justice. MPs combined to demand that Britain flout the European Court. Only one solitary backbencher, Labour’s David Winnick, asked the obvious question: if Abu Qatada is such a bad egg, why not press charges and secure a sentence in court?

It is more than 60 years since Churchill made his famous “Iron Curtain” speech in Fulton, Missouri, in which he defended the Western tradition of the rule of law. This is what he said: “We must never cease to proclaim in fearless tones the great principles of freedom and the rights of man which… through Magna Carta, the Bill of Rights, habeas corpus, trial by jury and the English common law, find their most famous expression in the American Declaration of Independence.” Churchill was clear, too — as he wrote to a constituent in 1938 — that “the use of instruments of torture can never be regarded by any decent person as synonymous with justice”.

In the immediate post-war era, with the memory of Nazi barbarism so clear, there would have been nothing even remotely controversial about such statements. They would have been accepted without demur by every right-thinking and decent person. Today, however, Churchill might be denounced as some eccentric, mad-eyed human rights fanatic if he repeated them. For over the past 15 years, the political elites of Britain and America have increasingly confined the right to a free trial to a minority of privileged citizens in their own countries.

Foreigners (and even some of their own citizens) have been subject to an improvised method of executive justice. Their rights have been denied and suppressed. Indeed, if only the MPs who sounded the alarm about Abu Qatada so stridently all this week had shown an ounce of the same outrage about Guantánamo or the victims of extraordinary rendition, they would deserve a certain amount of respect.

It was Tony Blair who first made the disreputable argument that “the rules of the game have changed” and that the threat from al-Qaeda was so severe and unprecedented that terrorist suspects should be deprived of the protections granted to ordinary citizens. But Mr Blair was wrong for two reasons. First, by abandoning the rule of law, we have turned our back on the exact values that have brought honour, worth and distinction to Western civilisation. Second, we are according men such as Abu Qatada a significance and mystique they do not remotely possess.

If he is guilty of the charges laid at his door, he is not, at bottom, guilty of terrorism. He is a common criminal, and should be treated as such. If this alleged hate preacher is such a menace, he should be brought to trial, asked to confront the evidence, and sent to jail. Anything less is a betrayal of everything that Britain stands for.