The fifty-one year old Omar Othman, Abu Qatada al-Filistini, a Palestinian refugee with Jordanian nationality has spent the last six years in various maximum security prisons for Category A offenders. Since his original detention in October 2002, every attempt to deport him to Jordan has been frustrated. The law lords ruled three years ago that he could be sent back but the Strasbourg decision overturned that ruling.
The Home Office clashed openly with judges on Monday when it criticised a decision to free on bail, Abu Qatada, who is accused of posing a grave threat to British national security. The decision by Mr Justice Mitting will see Abu Qatada, once described as Osama bin Laden’s righthand man in Europe, walk out of Long Lartin maximum security prison in Worcestershire after more than six and a half years in detention without trial – the longest period in modern times [see footnote].
The Special Immigration Appeals Commission (SIAC) has imposed some of the most draconian bail conditions seen since 9/11, including a twenty-two hour curfew, but this did little to assuage the anger of the Home Office ministers or politicians from all parties at the decision.
The clash takes the battle between politicians and the judiciary into new territory as Abu Qatada is a major international terror suspect. He was first detained without trial in Britain under the quashed Belmarsh regime nearly a decade ago, in October 2002.
The decision taken by the high court judge at SIAC follows the ruling by the European court of human rights that he could not be deported toJordan because he would face a “flagrant denial of justice” – a retrial based on evidence obtained through torture. Abu Qatada had been detained under immigration laws for the past six and half years pending his deportation to Jordan.
A Home Office spokesperson said he should remain in detention:
“This is the argument we made in court and we disagree with its decision. This is a dangerous man who we believe poses a real threat to our security and who has not changed in his views or attitude to the UK.”
The Home Office said it will consider an appeal against the European court’s ruling. It will also continue a fresh attempt to secure diplomatic assurances from Jordan that Abu Qatada will not face a trial based on torture-tainted evidence. The British ambassador held two meetings last week with the Jordanian authorities to try to open talks on the issue. But the decision angered both Labour and Conservative backbenchers.
The former Labour home secretary David Blunkett said the decision had left the government facing a very real difficulty:
“It is an unholy mess. We are left in the absurd position of not being able to remove a man even though everyone accepts he won’t be tortured, not being able to keep him in prison because his human rights trump the protection of the British people, and a government that has watered down control orders so that they are more lax than was previously the case.”
The Conservative backbencher Dominic Raab echoed Blunkett’s anger:
“This result is a direct result of the perverse ruling by the Strasbourg court. It makes a mockery of human rights law that a terrorist suspect deemed ‘dangerous’ by our courts can’t be returned home, not for fear that he might be tortured, but because European judges don’t trust the Jordanian justice system.”
The bail conditions set down by Mr Justice Mitting are draconian, comprising a twenty-two hour curfew rather than the “overnight residence requirement” specified in the coalition’s replacement for control orders. They include an electronic tag, MI5 vetting of all his visitors except for immediate family, and monitoring of his communications. The delay in his release is to allow the security services to check the proposed bail address and organise their surveillance operation.
In his ruling, the judge said that although the six and half years Abu Qatada had been detained under immigration powers was “unusually long”, he agreed with the home secretary that it was also lawfully justified. However, he added: “The time will arrive quite soon when continuing detention or deprivation of liberty could not be justified.” The Siac judge warned the home secretary, Theresa May, that Abu Qatada’s “highly prescriptive” bail terms would be relaxed after three months if there is no “demonstrable progress” made with the Jordanians.
The bail conditions mirror those set in 2008 when he was released for six months before being returned to prison on unspecified national security grounds. The judge said the risks to national security and of absconding in the case had not significantly changed since then.
During the one-day bail hearing, Edward Fitzgerald QC, representing Abu Qatada, argued that his detention had gone on too long to be reasonable and there was no prospect of the detention ending in any reasonable period. Even if new diplomatic assurances were secured it would only trigger a new round of litigation in the English courts.”There comes a time when it’s just too long, however grave the risks,” said Fitzgerald.
The shadow home secretary, Yvette Cooper, said May had to explain urgently what action she was taking on the national security implications of the ruling. “Abu Qatada should face terror charges in Jordan, and the home secretary needs to urgently accelerate discussions with the Jordanian government to make that possible,” she said. The home secretary also had to spell out the counter-terror safeguards that will be taken to lower the national security risk.
The security services have never disclosed the actual cost of mounting round-the-clock surveillance operations on terror suspects such as Abu Qatada but it does have serious implications for their resources.
“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 the UK, he is as entitled to his liberty as the rest of the British Subjects are. 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 list of British suspects (mostly all Asian or Muslim men) 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 with a crime in prison for years on end, like Babar Ahmed and Talha Ahsan. 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 the United Kingdom 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.
Prime Minister David Cameron spoke with King Abdullah of Jordan Thursday 9 February, about Britain’s efforts to deport Islamist radical Abu Qatada to stand trial in the country.
Downing Street said the phone conversation took place during Mr Cameron’s visit to Sweden, but there was no immediate detail available on how the discussion went.
The Prime Minister said yesterday it was “completely unacceptable” that the UK is unable to return Qatada to Jordan because of a ruling by the European Court of Human Rights (ECHR) that he must not be sent back if it might lead to him being tried with evidence obtained under torture.
An immigration judge ruled earlier this week that Qatada – once described as “Osama bin Laden’s right-hand man in Europe” – should be released on bail after more than six years in custody fighting deportation.
Home Office Minister James Brokenshire is to fly to Jordanian capital Amman next week to try to secure assurances to satisfy the ECHR that the Middle Eastern state will not use evidence gathered by the use of torture in any trial of Qatada.
Mr Cameron yesterday told MPs while promising to work with the Jordanians to clear any remaining hurdles to his removal that:
[Qatada] should have been deported years ago it is not acceptable that you end up with a situation where you have someone in your country that threatens to do you harm, that you cannot try, you cannot detain and you cannot deport, the Government will do everything it can working with our Jordanian friends and allies to make sure that he can be deported.”
• This footnote was appended on 8 February 2012. To clarify: Qatada is believed to have spent longer in custody under immigration rules “than any other detainee in modern immigration history”, according to legal arguments lodged with the Special Immigration Appeals Commission by his legal team. This was preceded by two years and four months in detention without trial under anti-terror laws in Belmarsh prison. In total he has spent eight years and nine months detained without trial, but there was a break of six months when he was on bail.