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Ten Years On - Internment and the erosion of civil liberties

First published by Cageprisoners (nowCAGE) on 19 December 2011 to mark the 10th anniversary of the first internments under the Anti-Terrorism, Crime and Security Act.

It's the season of sad, surprising anniversaries. First there was the 10th anniversary of 9/11. Then the 10th anniversary of the US/British assault on Afghanistan. Soon it will be the 10th anniversary of Guantánamo Bay.

Right now it's the 10th anniversary of Britain's Anti-Terrorism, Crime and Security Act – the legislation that introduced internment to mainland Britain for the first time since World War 2.

The internment powers of the Act were dropped after the Law Lords ruled in December 2004 that they were incompatible with the European Convention on Human Rights. But the British Government continues, through a variety of other legal devices, to punish and detain without charge or trial people that it says are linked to "terrorism." The victims include some of the men interned 10 years ago and then "freed" by the Law Lords ruling.

The Anti-Terrorism, Crime and Security Act (ATCSA) was rushed through Parliament in the aftermath of 9/11 and came into force on 14 December 2011. It was a lucky-bag of measures that ranged from the apparently quirky and superfluous to the draconian and far-reaching.

Section 47 of the Act makes it an offence to knowingly cause a "nuclear weapon explosion." Part 2 of the Act gives the Treasury the power to freeze funds. Home Secretary David Blunkett told the House of Commons that this was "to deal specifically with terrorist finance." The Act doesn't in fact say that its asset-freezing powers can only be applied to terrorist finance. But a lot of people were nevertheless rather surprised when Gordon Brown responded to the Icelandic banking collapse of 2008 by using the Anti-Terrorism, Crime and Security Act to freeze the funds of Landsbanki.

Internment and Detention without charge

The most eye-catching innovation of the Act was internment. The Government refused to use the i-word, but internment is precisely what Part 4 of the Act created. The new measures departed so fundamentally from normal principles of justice that they could only be introduced after the Government had formally "derogated" from the European Convention on Human Rights, claiming that 9/11 had created a "national emergency."

Part 4 of ATCSA allowed the Home Secretary to certify foreign nationals as “suspected international terrorists” whose presence was a "risk to national security." It also gave him the power to imprison such people without charge or trial if unable to deport them, for example because they would face torture or death in their country of origin.

A “suspected international terrorist” could be anyone the Home Secretary suspected of being involved in "international terrorism", or of belonging to an "international terrorist group" or of having links to someone belonging to an "international terrorist group." An "international terrorist group" could be any group with international tendencies that the Home Secretary suspected of involvement in international terrorism. Terrorism could be anything covered by the wide new definition introduced in the Terrorism Act 2000.

There was just one restriction on the Home Secretary's power. Britain's derogation from the European Convention on Human Rights related specifically to the threat from al-Qaida. This meant that people could only be interned if they were certified as being directly or indirectly linked to al-Qaida. Fortunately for the Home Secretary, al-Qaida appears to be an amorphous and accommodating organisation.

Eight men certified in this way were snatched from their homes on 19 December 2001 and locked up in Belmarsh Prison. Gareth Pierce, lawyer for many of the men, said that most had no idea why they had been detained. All that they were told was that they were thought, for undisclosed reasons, to be linked to unspecified individuals or organisations that were in turn linked to al-Qaida.

The identities of most of the detainees were a secret. They were given an alphabet soup of designations – Detainee A for instance. The secrecy was created by court orders requested by the men's own legal teams. It was intended to protect the detainees' families and to protect the detainees themselves should they be either released to freedom in Britain or returned to their countries of origin. But it contributed to the mystery and fear that surrounded internment.By November 2003, 14 men were interned under ATCSA.

Secret Evidence

The detainees' only chance of redress was either a public outcry sufficient to change the Home Secretary's mind, or an appeal to the secretive Special Immigration Appeal Commission (SIAC), and thereafter to the Appeal Court and the Law Lords. The wide powers given to the Home Secretary, the limited grounds for appeal and the spook-friendly dynamics of SIAC's closed sessions should have virtually guaranteed that appeals would fail in any lesser forum than the Law Lords. But the Home Secretary stretched the limits to his power so recklessly that one of the December 2001 detainees – a man known only as "Detainee M" – was granted his freedom by SIAC in 2004.

A notable absentee from the December round-up was Sheikh Omar Othman, also known as Abu Qatada. He is a Palestinian scholar of Jordanian nationality and came to Britain as a refugee in 1993, having been tortured by the Jordanian authorities. In 1999 he was sentenced in absentia by a Jordanian military tribunal for his supposed role in the 1998 bombings there. In 2000 he was convicted in Jordan – again in absentia – of involvement in a further bomb plot. Evidence against him in both cases was said to have been obtained under torture. The trials proved nothing except the continued enmity of the Jordanian authorities towards Omar Othman.

Unlike the other men certified for detention in Britain, Omar Othman was already a public figure when the round-up of “suspected international terrorists” began. His sermons and teachings were widely circulated and often controversial. During the 1990s he attracted attention over his support for armed opposition groups in Muslim countries, and especially for groups participating in the bloody and complex civil war in Algeria.

He was arrested by the Metropolitan Police in February 2001, and then released without charge. In October 2001 the Al-Qaida Sanctions Committee of the UN Security Council blacklisted him as "being associated with “Usama bin Laden and individuals and entities associated with him." Additions to the Committee's blacklist are made by consensus amongst committee members, without any recourse to judicial process.

He featured prominently in MI5 briefings to journalists while the Anti-Terrorism, Crime and Security Bill was going through Parliament. A report that a "sealed indictment" from Spain described him as Al-Qaida's "spiritual envoy" – whatever that means - appeared in the Independent newspaper. An article in the Observer newspaper claimed that he was "the prime target" of the internment legislation.

On 19 December, just after the dawn raids on “suspected international terrorists”, the London Evening Standard asserted that Omar Othman (referred to as Abu Qatada) would "definitely" be in the first batch of arrests. They were wrong. He had disappeared from police view (though perhaps not from MI5 view) just before internment came into force, and wasn't tracked down and locked up in Belmarsh Prison until October 2002.

Seven years have passed since the Law Lords ruled against internment. Omar Othman is still in jail. He is in immigration detention at Long Lartin Prison, still under high-security conditions. The Home Office is seeking his deportation to Jordan, where he would be subject to an unfair trial and would be at risk of other inhumane treatment. Britain's Law Lords have already ruled that the unfair trial would not be unfair enough to block his deportation. The case is currently before the European Court of Human Rights.

In all the whirligig of assertions about Omar Othman's links to Al-Qaida, the one thing missing is firm evidence of crime. The Crown Prosecution Service was not asked to consider prosecuting Othman or any other detainee either in advance of the decision to detain them or during the years of their internment. The most straightforward explanation for this is that the Home Office doesn't like Omar Othman's teachings and political statements, that it wishes to suppress them, and that it either doesn't believe them to be criminal or doesn't care whether they are criminal or not.

Omar Othman has defended some strategies of struggle that I would not wish to defend. So have cabinet ministers and newspaper columnists.

Clare Short, Blair's International Development Minister, defended NATO's 1999 bombing of a Belgrade TV station on the grounds that the station broadcast propaganda. Newspaper columnist David Aaronvitch argued in February 2003 that Britain should attack Iraq just in case the arguments against the war should turn out to be wrong. Daily Mail sketchwriter Quentin Letts told the Big Issue magazine earlier this year that torture "in extreme cases, has to be allowed." All these people were defending or encouraging serious crimes under international law.

Demonising a community - racism and Islamophobia

They have all, quite rightly, escaped prosecution. That should be reserved for people like Tony Blair who exercised real power. But similar freedom of expression isn't available to Muslims.

Discrimination was in the DNA of internment, and remains in the DNA of the measures that replaced it. When the Terrorism Act 2000 was being debated by Parliament, no one knew who its principal victims would be. But when the Anti-Terrorism, Crime and Security Act was being debated, everyone knew that it was directed at Muslims.

Ian MacDonald QC recognised that when he resigned in 2004 from his work as a SIAC Special Advocate, saying:"… the detainees have not been targeted simply as a group of foreigners suspected of involvement in international terrorism. The overwhelming focus has been on the fact that they are Muslim."

The focus on Muslims continues. The only change is that the focus now falls on all Muslims in Britain, and not just upon Muslim refugees.

Anyone who opposes repressive governments and colonial influence in Muslim countries, and relies upon Islam to fashion something better, is marked as an enemy.

Muslims in Britain have been edged into another country. It looks like the Britain we all used to live in, but it isn't quite the same. It's a step closer to being a police state. In Muslim Britain, the police aren't just a service; they are a socio-political institution.

Muslims are expected to accommodate the police in ways that other people in Britain are not. Police show up – as policemen or through advertising or sponsorship – at a wide range of activities. Mosque committees are apt to have comfortable relationships with the local police. Similar relationships are not thought necessary in the institutions of ordinary Britain. Muslims worried about racism and the threat from far-right groups are encouraged to place their confidence in the police and to avoid working with anti-racist campaigners from other communities.

Muslims also have to live with the likelihood that their community is liberally sprinkled with undercover agents and informers.Anyone, Muslim or not, who wants to express support for resistance movements overseas, will have a hard time being heard. But a non-Muslim will suffer nothing worse than polite sidelining. A Muslim risks vilification or prosecution.

All this has been going on for a decade. Muslims in their teens and twenties have scarcely known anything else. The consequences are unguessable.

Any non-Muslim inclined to be critical of the Muslim community's handling of the situation deserves to be told "you try it, then."There have been some bright moments in all the dark. One such moment came a few weeks ago when the e-petition in support of Babar Ahmad's right to be tried in Britain rather than in the US closed with over 140,000 signatures. Another came shortly afterwards when campaigners – mainly Muslim – induced Parliament to debate the issue despite its earlier determination to do no such thing.

Deportation to Torture

Punishment without trial continues. The Home Secretary can no longer sign a certificate saying that someone should be locked up. That power was abolished in March 2005. But she can order the deportation of a refugee on national security grounds, provided that she can explain how that can be done without violating the international ban on deportation to torture. The explanation takes the form of a "memorandum of understanding" with the refugee's home country, promising that the country will, in these particular instances, respect the international laws against torture that it would normally flout. The Home Secretary can then have the refugee detained in a high–security prison pending deportation, exactly as if the refugee had been interned under the 2001 legislation. If the refugee chooses to appeal against deportation, his case will be heard by SIAC, the kangaroo court that oversaw ATCSA internment. And key evidence will be heard in secret, just as before.

Anyone who becomes the subject of an extradition request and chooses to oppose it can also find himself in jail for a long time. Ministers and judges have expressed regret at the slow progress of Babar Ahmad's case. But the effect is that any government wishing to get someone locked up without charge or trial for a few years needs only to see to it that an extradition request is filed.

The Home Secretary still has the power to impose punishments – but not imprisonment – on anyone "involved in terrorism-related activity." The punishments are imposed through a "terrorism prevention and investigation measures (TPIM) notice." TPIMs replace control orders, which in turn replaced detention under Part 4 of the Anti-Terrorism Crime and Security Act 2001. Unlike Part 4 detention they can be applied to British citizens as well as to foreigners. Judicial oversight of TPIMs is minimal. Appeals against TPIMs are heard under SIAC-like arrangements, with key evidence heard in secret.

It's 10 years since the Government began its assault on the Muslim community. The arbitrary powers introduced after 9/11 have been whittled down but they haven't disappeared. The routine, unspectacular lockdown of the Muslim community has tightened through successive rounds of "terrorism" legislation, through the Prevent programme and through habit. Isn't it time for a change?