According to the British government, a Kurdish Iraqi imam living in the north of England was such a threat to national security that, for the last three years and four months, he was subjected to a control order, a form of house arrest involving, but not limited to curfews, tagging, Home Office vetting of all visitors, a ban on the use of computers and mobile phones, and random security checks at all times of the day or night.
The government has maintained, since May 2006, that it was relying on secret evidence to justify its conclusion that this man -- identified only as AE -- posed a significant terrorist threat, and that the control order was necessary because it could not compromise its intelligence sources and methods by putting him on trial, which, it maintained, might lead to sensitive information being revealed in court. However, last week, in the wake of a ruling by the Law Lords in June, which gave the government only two options -- to provide more information to the control order detainees, to allow them to challenge the basis of their control orders, or to release them outright -- home secretary Alan Johnson announced, in a letter to AE’s solicitors, that he had chosen the latter option, and that AE was now a free man.
This outcome had been expected since June, because AE’s case was due in court next week, and the government already knew that a judge would quash his control order, unless officials agreed to provide him with sufficient evidence to challenge his control order, because this is exactly what happened in July, in the cases of two British nationals, and was repeated three weeks ago, in the case of a joint British-Libyan national identified only as AF.
To understand how we came to such a bizarre and ridiculous situation in which, one minute, a man is regarded as one of the most dangerous terror suspects in the UK and held on a control order, and the next minute is a free man, because the government is unwilling to have its evidence tested objectively, we need to return to March 2005, when the control order regime was first implemented, and to understand that, from the beginning, it was an ad hoc system cooked up in haste to replace the government’s previous method of holding terror suspects without charge or trial -- imprisoning them in Belmarsh high-security prison -- which the Law Lords had ruled illegal in December 2004, three years after it was first introduced.
Critics of the system stated from the beginning that depriving men of their liberty on the basis of secret evidence and refusing to put them on trial because of an anachronistic desire to protect intelligence sources and methods was both unjust and unnecessary, because of the appalling secrecy -- special advocates were appointed to deal with the secret evidence in closed sessions, but were prohibited from telling their clients anything about what took place in those sessions -- and because organizations like JUSTICE, the all-party law reform and human rights organization, had been demonstrating for years (PDF) that most countries in the world had found ways of presenting sensitive information in court (intercept evidence, for example) without compromising intelligence sources and methods, and that the UK should be no exception.
However, it was not until June that the government was finally obliged to take notice of the mounting opposition to the system, when the Law Lords ruled unanimously that imposing control orders breaches Article 6 of the European Convention on Human Rights, which guarantees the right to a fair trial, because a suspect held under a control order is not given “sufficient information about the allegations against him to enable him to give effective instructions to the special advocate assigned to him.”
In the wake of the Lords’ ruling, the government tried to maintain its composure. Alan Johnson stated that the judgment was “extremely disappointing,” and added, “All control orders will remain in force for the time being and we will continue to seek to uphold them in the courts. In the meantime, we will consider this judgment, and our options, carefully.”
However, it was clear that the regime’s days were numbered, and this was confirmed when, in two cases in July, Mr. Justice Mitting ruled that the government was obliged to drop a control order against a British national and a father of five, identified only as BM, who, in May, was forced to move from his home in east London to a one-bedroom flat in Leicester on the basis of claims by the Home Office that he was “a prominent member of a network of Islamist extremists,” and followed up by ruling that the government's secrecy regarding the evidence against another British national, identified only as AN, had “gone so far as to deny AN knowledge of the essence of the case against him,” and it was reinforced when AF’s control order was quashed by a judge three weeks ago, and the home secretary again gave up the fight, choosing to grant AF his liberty rather than reveal any of the secret evidence against him.
Long-standing critics of the regime were not the only observers to wonder how dangerous these men could really be if, after years of being treated as though they were particularly explosive packages, who would detonate if left unobserved for more than a minute, the government chose to grant them total freedom rather than test the allegations against them in open court.
It follows, of course, that questions must inevitably be raised regarding the quality of the government’s supposed evidence, and the reliability of the intelligence services, and the only conclusion I can reasonably draw is that the government was content to deprive people of their liberty on little more than a whim, or a hunch based on ill-defined associations and untested raw intelligence reports, and certainly not on the basis of anything that could objectively be examined and considered as evidence.
While I wait to see whether the remaining 14 control orders will, as anticipated, also be quashed (and note that another appears to have been quietly dropped by the government over the last few months, with no fanfare and no announcements whatsoever), and while I also wait to see how the government will respond to forthcoming challenges in the cases of other men held on deportation bail, rather than on control orders, I leave the final word on AE’s case, for now, to Mohammed Ayub, his solicitor, who told the Guardian:
For three-and-a-half years he and his family have had to live a life which has been controlled in every respect by the Home Office: where he lives, when he may go out, where he may go, who he may meet, what employment he may undertake. During the whole of this period, he has never been told on what basis he is suspected of being a terrorist and he has never had a fair hearing before a court at which he could challenge the allegation made against him.
Ayub explained, as the Guardian described it, that AE, his wife and three children “might not get over the psychological harm of the past three years,” and added, “AE will consider carefully his legal options in respect of seeking damages from the home secretary for the wrong that has been done him and his family.” He also stated that control orders were “fundamentally oppressive and unfair”, and “flawed in their conception, execution and review.”
This prompted a rote response from a Home Office spokeswoman, who, as the Guardian put it, said that “revoking the order did not change the assessment that control orders remained the best available disruptive tool for managing the risk posed by suspected terrorists they could not prosecute or deport,” but it is unlikely that this “assessment” will prevail, as Alan Johnson has asked Lord Carlile, the government’s “independent reviewer” of terrorism laws, to report back on whether control orders should continue, and even Carlile, a supporter of the regime in principle, has stated in his annual reports (PDF) that no control order should be extended beyond two years “save in genuinely exceptional circumstances.”
In a recent statement, backed up by peers and MPs on the Parliamentary Human Rights Committee, Carlile refuted claims by the Home Office that “A definite end-date would mean individuals on control orders could simply disengage from involvement in terrorism-related activity on the basis that they knew they could re-engage at the end of that time period,” reiterating his assertion that control orders lasting more than two years can only be justified “in a few exceptional cases,” and telling the Committee, “After that time, at least the immediate utility of even a dedicated terrorist will seriously have been disrupted.”
With these opinions so publicly available, it appears that Lord Carlile is unlikely to present the government with a new escape route, and that the UK may, finally, have to rejoin the majority of the civilized world in accepting that, even in the struggle against terrorism, it is unacceptable to imprison men -- or otherwise deprive them of their liberty -- on the basis of secret evidence.
Note: For a BBC interview with AE, recorded in June, see here.
