The Qatada Question: Between a Rights and a Hardline Place

The single band of light slashed across the shelves catches the metallic detailing on the spines of the neatly lined books set upon them.  The shine creates what looks to be the only source of real illumination in an otherwise darkened room, perhaps an intentional set up to reflect the gravity of the interview.  Seated in front of the bookshelf, hands clasped and monotone in presentation, sits controversial preacher and accused Al-Qaeda spiritual leader Abu Qatada.  It’s a month since the 9/11 terror attacks in the U.S. and Qatada is facing down the cameras of long-running British newsmagazine Panorama to argue the strength of Osama bin Laden’s convictions and the validity of jihad to preserve Islam.  In the two decades since his arrival in the U.K., the British government has wrangled with what to do with him and how to expel him from the country.  Last week, the government lost its latest bid for deportation and talk swirled about what options remain, including a potential suspension of the U.K.’s adherence to the European Convention on Human Rights.

BBC News – Abu Qatada: Timeline

The course of Qatada’s clash with the British government is a master class in frustrating legal theater.  The case against him has boomeranged between courts, woefully pockmarked by insufficient evidence and an absence of charges.  The Palestinian-Jordanian cleric and his family entered Britain in 1993 on a forged passport, accusing Jordan of torture and religious persecution.  He was granted asylum, and they settled in Acton, West London.  Qatada’s influence grew rapidly amidst the influx of radical Islamists who found their way to Britain after fleeing despotic Arab states, many serving in groups looking to overthrow these regimes from abroad.  In an attempt to better understand this emerging landscape, Britain’s intelligence agency, MI-5, approached Qatada for information while it rallied to procure assets within the movement.

Qatada called for the installation of sharia law in Muslim lands and justified violence against detractors as lawful fallout in support of the cause.  Eighteen months after his arrival he issued a fatwa, or Islamic edict, condoning the killing of Algerian former Muslims and their families.  His pull amongst extreme Algerian and Egyptian followers was particularly strong, and such speechifying carried compelling weight, using his words as justification for violence inflicted on civilians.

In 1999, he was convicted by a Jordanian court in absentia of conspiracy to commit terrorism and given a life sentence for his alleged role in a series of bombings.  That same year he gave a speech in London calling for the killing of Jews and saluting violence against Americans.  The cleric’s views became increasingly severe and widespread, with one Spanish judge deeming him the “spiritual leader of the mujahedeen in Britain.” For its part, MI-5 retreated from its earlier approach to the preacher, formally characterizing Qatada as a threat to the state and western partners.  A year later another Jordanian trial extended Qatada’s sentence by a further fifteen years for his alleged role in a plan to target millennial tourists.

In early 2001, he is arrested by U.K. law enforcement and questioned about links to a German terror cell.  While searching his home, investigators find an envelope containing £805 with “for the Mujahedeen in Chechnya” absurdly scrolled across the front.  No charges were ever filed.

The perspective afforded by history now tells us that the events forever scarring that September were closing in fast.  In the shadow of the attacks, the imposition of new counterterrorism laws allowing for the detention of terror suspects without charge or trial took form just as quickly.

The ensuing investigation revealed advisory conversations between Qatada, 9/11 ringleader Mohamad Atta and would-be shoe bomber Richard Reid.  Copies of his sermons were found in an apartment used by some of the 9/11 suspects in Hamburg.  Two months after the attack, the U.K. government moved to use the new anti-terror laws to make an arrest.  Qatada disappeared.

He was found two months later in South London and sent to Belmarsh prison.  He spent five months at the maximum-security facility until being granted conditional bail, only to be re-arrested in August 2002 under the Anti-terrorism, Crime and Security Act of 2001 (ATCSA) – a section of which allows for the detention of immigrants suspected of terrorist activity.  With Qatada in custody, the government made its first in a litany of attempts to deport him back to Jordan.  In what would constitute Qatada’s first appeals loss, an immigration commission rejected his request for release.  He remained in Belmarsh until 2005 — held without formally filed charges and unable to hear the evidence against him.  The immigration provision of ATCSA was revised that year to allow house arrest in place of detention.  Qatada was released under a strict control order, and in 2007 a British court ruled he may be deported.

In 2008, the Court of Appeal ruled against the decision, saying such action would be in violation of the cleric’s human rights as the evidence used against him in his Jordanian trial was collected through the use of torture and would constitute a direct breach of Article Six of the European Convention on Human Rights, protecting fair trial.  Again, Qatada made conditional bail only to be re-arrested when the Immigration commission deemed him too great a flight risk.  The following year, the Law Lords, then the U.K.’s highest appeals body in parliament’s upper House of Lords before the establishment of the Supreme Court, voted in favor of the government’s motion for deportation so long as it could produce solid assurances from Jordan about the legality of his retrial.

The European Court on Human Rights awarded Qatada compensation for his time spent in prison without due process.  At the start of 2012, the body ruled that the U.K. and Jordanian governments had not yet met the standard of assurance over torture and fair trial, blocking his deportation. Prime Minister David Cameron and King Abdullah of Jordan agree on the “importance of finding an effective solution” — but not before, as you may guess, Qatada is released on bail.  In April, his penultimate arrest takes place with a fresh agreement hammered out by Home Secretary Theresa May and King Abdullah.

Qatada appeals to the ECHR, which refuses his efforts.  A thrilled May joyfully declares the nearness of his final removal from Britain.  The Immigration commission denies bail, citing the threat posed to the London Olympic Games that year if he were released, and he loses a further appeal before the High Court.  But in November of last year, the immigration commission rejects the idea that Qatada would receive fair retrial in Jordan, leaving May utterly incensed.  Once more Qatada is bailed and re-arrested by the U.K. Border Agency over conditions violations.  In March of this year, the Court of Appeal refused the Home Secretary’s bid to have the deportation stay lifted.

Bringing us finally to last week, when the Court of Appeal denied May its permission to bring the case to the Supreme Court despite her protestations that a new agreement with Jordan had been reached.

Are you thoroughly exhausted?  So is Britain.  The intention of this lumbering recounting of events is not to numb the mind with the alphabet soup of official acronyms or test the number of times “re-arrest” can be used before a discussion degenerates into madness.  It’s meant to capture the very real dilemma created by the intersection of law, politics and fear.  When the Court of Appeal shared its latest ruling, May took the “all options on the table” approach to suggestions for a next step, including a temporary withdrawal from the European Convention on Human Rights.  It’s a dangerous assertion, even if it comes swaddled in earlier set precedence and is actually hugely unlikely.  Part of the purpose of law, and more specific to this case human rights law, is to preserve the execution of justice even when the subject under examination is repugnant.  To say a solution to this problem may lie in removing law just long enough to achieve desired ends, undermines law entirely.

It could technically be done.  The U.K. already did so in the 1970s with internments in Northern Ireland. Furthermore, while Article Fifteen of the Convention denies the possibility of suspension where a subject faces a real potential for facing torture (or Article Three), Qatada is not thought to be in this position.  Those who made statements against him may have been exposed to this, but the Convention doesn’t express a denial of withdrawal on those grounds.

It’s also unlikely to happen as the U.K. looks to distance itself from War on Terror policies thought to raise questions about Britain’s human rights record.  The most damning of which was the use of U.K. airspace in the process of extraordinary rendition, the practice of sending terror suspects to states known to utilize torture, including Jordan, as an interrogation technique for intelligence-gathering without direct accountability for unlawful harm.  The image projected by a suspension of the Convention followed by a swift reinstatement would fall too closely in line with the controversial jostling of rights and liberties after 9/11.  This course of thinking might provide something in the way of understanding about why the government hasn’t just chosen the option of secret trial to draw a line under it.

So even if a suspension isn’t a real threat, and little is thought in the way of acceptable systemic change in Jordanian investigative procedures and judicial proceedings, where does it leave the question of what to do with Qatada?  This case is not simply a story of a failed legal system, or one that is so sensitive to the rights of the accused that it dismisses those of their victims.  Options do remain.  The most glaring of which is to finally charge him with something in open court.  That has yet to happen in all of this back and forth.  The robustness or true absence of undisclosed evidence isn’t known, but even if it truly cannot be proven that he had direct impact on terror plotting, his actions could well constitute Incitement under anti-terror laws.

Perhaps much remains unknown about the “whens and hows” of the intelligence service’s knowledge of Qatada’s early activities and its relationship with him.  Perhaps a domestic pursuit of charges will require an embarrassing purge of government disclosures.  But on some level it is just as shaming to bounce between “catch and release” as it would be to take the black eye.

To be frank, the Qatada case doesn’t enjoy the relative anonymity of the detainees at Guantanamo Bay, a facility still housing terror suspects without charge or trial.  His is a public face on a public stage.  If the government isn’t willing to free him once and for all given their convictions about the crimes of his past and the potential danger he poses to the future, and they aren’t in a position to prosecute him, they’ll need to come up with something better than to skirt around accepted legal conventions when that is exactly what Jordan is accused of doing.