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Re-thinking detention without trial

Whatever the outcome in Abu Qatada’s case, there is an opportunity to learn from mistakes when dealing with terrorist suspects in the future. Whatever type or range of future terrorist threat the UK faces, there should be no need to resort to detentions without trial in the UK or to tacitly support torture abroad

Robert Lambert
10 March 2012

The high profile case of Abu Qatada should prompt the UK government to re-think the basis on which it detains UK citizens and UK residents without trial for long periods. Arguments on this topic are inevitably polarised and no Home Secretary, least of all Theresa May, can be expected to embrace the case for justice for terrorist suspects such as Abu Qatada against an avalanche of media fuelled public outrage. 

But it would be perfectly reasonable for May, and her successors in post, to invest time and resources in researching viable alternatives to detention without trial in the future – and in doing so learn some important lessons from history, both contemporary and from the last century. Instead of arguing in support of the human rights of terrorist suspects she would be able to argue in support of effective security and effective counter-terrorism, however counter-intuitive that might appear at first sight. 

To begin with, it would be far easier for May to argue in favour of putting all terrorist suspects on trial if she was fully briefed by her advisors on the practicability and advantages of such an option. 

This is to allow that any Home Secretary can only ever argue for a ‘soft’ solution in a security context if it is effective. It is also to allow exceptions to fair trials in exceptional circumstances. It still seems absolutely right that British supporters of Nazi Germany should have been detained without trial during the Second World War. The safety and security of the country clearly took precedence over the need for fair trials and due legal process. 

In contrast, detentions of Irish republicans and British Muslims without trial – in the 1970s and 2000s respectively – is much harder to justify on that strict basis. In the case of the internment of Irish republicans in Belfast it is now widely understood to have been counter-productive as a counter-terrorism measure. That is to say, increased recruitment to – and support for – the Provisional IRA was a net result. Although relatively small numbers of Muslims in the UK have suffered detention without trial in the 2000s it is fair to say that its counter-productivity in terms of boosting support for al-Qaeda is still not sufficiently understood. 

Equally important, an absence of transparent justice in an al-Qaeda context sometimes inhibits pro-active Muslim community-based support for counter-terrorism

All of which applies in the Abu Qatada case as it does in others. In addition, what specific lessons can be learned from the Abu Qatada case? It is reasonable to accept that much intelligence about his case may have been difficult to adduce in a British court. This is not uncommon. Good intelligence does not always translate into good evidence. However, if more time and resources had been invested in open source intelligence and in cultivating grass roots Muslim community intelligence during the 1990s and early 2000s it may well have yielded evidence of the kind that led to the successful prosecutions of Abu Hamza and Abdullah el Faisal. 

Abu Qatada first arrived in London when the Metropolitan Police was assisting the FBI in conducting enquiries that led to the successful conviction of the terrorists who nearly succeeded in toppling one of the twin towers of the World Trade Centre in 1993. That professional police investigation in New York and London should not be confused with a political policy that appears to have allowed Abu Qatada to enter the UK without sufficient scrutiny. Equally any laxness in border control in Abu Qatada’s case should not be conflated with the arrival in the UK of other Arab Muslims who went on to make positive contributions to public safety in Britain.  

After 9/11 all suspected al-Qaeda terrorists, Abu Qatada included, became subject to a political agenda that owed little to historical precedent. In truth, the Blair government was so beguiled by Washington’s new global war on terror and its ability to ride roughshod over conventional justice that it paid little heed to the success that invariably attaches to painstaking criminal investigation in a terrorist context. Post 9/11 it was all too easy and convenient to subscribe to the prevailing view that the west was now facing an exceptional and existential threat that required new rules – or an absence of rules – to tackle it. That was how the Abu Qatada case fitted into a new security paradigm. 

Notwithstanding his inability to speak English with the fluency of Abdullah el Faisal or with the idiosyncratic communication skill of Abu Hamza it seems plausible to suppose that translations of some of Abu Qatada’s Arabic talks in London in the 1990s and early 2000s may well have yielded similar prima facie evidence of criminal offences. As Shami Chakrabarti points out incitement and soliciting murder are ‘still very serious offences’. It is also worth recalling that many of his speeches were translated at the time by his supporters for the benefit of English speaking audiences.    

If police work in partnership with their local Muslim communities they are far more likely to find viable evidence on which to prosecute genuine hate preachers for serious criminal offences, even in cases where evidence for substantive terrorist offences remains elusive. May should also review the Abu Qatada case so as to recognise the extent to which many Muslim Londoners were the first to raise concerns about his behaviour in the 1990s.  For too long Home Secretaries have sustained the myth that Muslims have been in denial about violent extremism in their communities. 

In addition, instead of portraying Abu Qatada as someone who is hopelessly beyond reason and negotiation May might consider whether he has potential to join a long list of former or reformed ‘terrorists’ who have been ‘de-radicalised’ in and out of prison.  

With an ongoing threat of recruitment into al-Qaeda inspired terrorism in the UK it would be useful to have someone of Abu Qatada’s stature working against it. That is the kind of work that should sit at the heart of the government’s Prevent strategy. In assessing whether Abu Qatada has this potential, May should listen to the opinion of Mohamed Ali who knows him well. While Ali may overstate Abu Qatada’s historical separation from the broader al-Qaeda movement he is not alone in assessing that Abu Qatada’s support for political violence in the 1990s does not extend to al-Qaeda’s ‘global jihad’ in the present.

Clearly, Abu Qatada’s positive public intervention in support of the release of British peace activist Norman Kember when he was held hostage by insurgents in Iraq in 2005 would need to be carefully scrutinised to assess its full significance and import. The fact that it was made while he was in detention at Long Lartin Prison provides a basis for a thorough evaluation in terms of motive and context. Whether it provides evidence to support Ali’s thesis or a potential role for Abu Qatada in the ‘de-radicalisation’ arena is not immediately clear. But it does provide a basis on which to discount the most lurid depictions of Abu Qatada that dominate the media discourse and threaten to drown out productive discussions.   

Equally, if May takes the view that influential Muslims like Ali are wide of the mark in their assessment of Abu Qatada she should reflect on the extent to which an absence of transparent justice has contributed to such divergent perspectives.    

Instead, at the time of writing the UK government appears to have a sole focus on solving the Abu Qatada crisis by finding an acceptable legal basis on which to deport him to Jordan. That is the basis on which May will visit officials in Jordan this week. James Brokenshire, a junior Home Office minister who travelled to Jordan last month for talks over Qatada claims ‘there was a strong recognition from the Jordanian government as to the responsibility they have for one of their own citizens’. 

Despite such optimism May faces the fundamental problem that Jordan has never before heard from the UK government that it should abandon the practice of torture. Britain has exported many colonial policing and security practices to countries including Jordan over the years but never before has the UK government sought to export its own domestic practice of policing by consent and policing without torture and intimidation. Even now it is not clear if May is asking Jordan to change its undeclared policing and security policy or merely to make an exception in Abu Qatada’s case. 

May will also be aware of arguments that UK counter-terrorism has from time to time during the war on terror, been the beneficiary of accurate and timely intelligence obtained from torture carried out in countries such as Jordan, where it is conducted on a routine basis. However, history shows that such short term gains are invariably off-set by a long term deficit in terms of increased support for terrorism and the increased alienation of innocent communities that suffer the adverse effects of torture as well as legitimate terrorist suspects.       

Whatever the outcome in Abu Qatada’s case there is an opportunity to learn from mistakes when dealing with terrorist suspects in the future. Whatever type or range of future terrorist threat the UK faces there should be no need to resort to detentions without trial in the UK or to tacitly support torture abroad. In both scenarios the potential for enhanced counter-terrorism and public safety in the UK is a realistic outcome.

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