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Year 2005 No. 20, February 8, 2005 ARCHIVE HOME JBBOOKS SUBSCRIBE

Government Plans Further Draconian Restrictions on the Right to Protest

Workers' Daily Internet Edition: Article Index :

Government Plans Further Draconian Restrictions on the Right to Protest

Guantanamo Detainee Plans to Sue British Government
How I Entered the Hellish World of Guantanamo Bay

Banning, house arrests – it all sounds eerily familiar:
Clarke's Plans Take Me Back to the Days of the South African Underground

New "anti-terrorist" proposals:
Further Steps Towards A Police State

National Lobby for Human Rights and Civil Liberties

For Your Information:
Statement by Home Secretary on "control orders" (26 January 2005)

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Government Plans Further Draconian Restrictions on the Right to Protest

A demonstration took place outside parliament yesterday, Monday, as the House of Commons debated the Serious Organised Crime Bill. This Bill had included a number of clauses related to the right to protest in Parliament Square. They had been specifically included to criminalise the protest of Brian Haw, who has staunchly been protesting against the war and aggression in Iraq for four years, despite all the dirty tricks of the MPs and Lords to find pretexts to remove him.

The demonstration was very lively with lots of speakers, samba, etc., and a good number of people participated from 2pm until way beyond 8pm, the time when the demonstration had been announced to conclude.

MPs Simon Hughes and Lembit Opik (both Lib Dems) and John McDonnell (Labour) came over from Parliament to support. They said that the clauses relevant to Brian and the right to protest in Parliament Square were only debated within the final hour (9-10pm). No more time was available for debate because the Government had imposed a "guillotine" (time limit) on the debate of six and a half hours – this itself caused lots of anger among MPs. In addition, the government introduced a further manoeuvre by putting in amendments which overrode the amendments proposed by Lib Dems and Labour MPs. These government amendments were even more draconian than the original legislation, and appear to affect any protest within the "surroundings" of parliament, demanding that notice be given to the police whether the demonstration is stationary or moving in a "designated area", and involving any number of people.

The next step is to be to lobby the Lords who will be debating this in the next few weeks.

The debate can be read in Hansard starting from the following page: http://www.publications.parliament.uk/pa/cm200405/cmhansrd/cm050207/debtext/50207-36.htm

The article below gives a summary of the debate.

Mon 7 Feb 2005

10:03pm (UK) MPs Protest at Westminster Demo Curbs

By Trevor Mason and Nick Mead, PA Political Staff

Ministers came under fire tonight over proposed restrictions on demonstrations outside Parliament.

Junior Home Office minister Caroline Flint said protesters should have to give six days’ notice of demonstrations to the Metropolitan Police.

The Metropolitan Police Commissioner was then entitled to place conditions on the protest if he considered it a threat to Parliament’s work.

But Labour and Liberal Democrat MPs said the tighter rules were aimed at ending the long-running anti-war campaign being waged by Brian Haw.

Mr Haw’s three and a half year round-the-clock peace protest and encampment opposite the Palace of Westminster has enraged some MPs, while drawing praise from others.

The restrictions proposed in the Serious Organised Crime and Police Bill follow months of noisy demonstrations outside Parliament and violent protests involving pro-hunt supporters.

As the debate got under way dozens of demonstrators protested noisily in support of Mr Haw in Parliament Square.

Ms Flint said existing legislation did not provide the police with the powers they needed to control protests around Parliament. She denied ministers were trying to prevent free speech.

Labour’s Jeremy Corbyn (Islington N) warned the minister to think carefully before "removing rights enshrined in history".

Liberal Democrat Lembit Opik (Montgomeryshire) asked how the Government could justify curtailing the freedom of free speech for everyone, simply because they felt "uncomfortable about one individual’s determination to exercise that right".

And SNP leader Alex Salmond asked how a possible fine of £5,000 for using an unauthorised loudspeaker could be proportionate.

Labour former minister Glenda Jackson said the legislation was aimed at "silencing one particular protester," adding: "Far from attempting to silence him, every MP should be extremely proud we live in a society where he can continue with his concerns."

But support for the restrictions came from senior Tory Sir Patrick Cormack (S Staffordshire) who said the lives of people working at Westminster had been made "intolerable by these people baying away".

Ms Flint said that when notice of a demonstration was correctly given, the Commissioner "must authorise the demonstration".

But he could place conditions on it to prevent hindrance to MPs, or the risk of serious public disorder.

"I think these conditions are very helpful," she told the House."

Article Index



Guantanamo Detainee Plans to Sue British Government

Martin Mubanga, freed after almost three years at Guantanamo Bay, is planning to sue the British government over his arrest, detention and transfer to Guantanamo.

British intelligence officials played a crucial part in the secret abduction of Martin Mubanga to Guantanamo Bay. Documents seen by The Observer disclose that even the Pentagon's own lawyers now accept that the intelligence that consigned him to Guantanamo may have been deeply flawed.

A Foreign Office spokesman said he could not comment on the activities of British intelligence or security agencies.

The 32-year-old was one of four Britons released from the US detention camp last month. He was immediately arrested on his return to Britain and questioned by police before he was released without charge.

Mubanga's solicitor, Louise Christian, said yesterday that she planned to take legal action against the government. Martin holds dual British and Zambian nationality. His arrest, detention and transfer had clearly breached British, Zambian and international law, Louise Christian said. "We are hoping to issue proceedings for the misfeasance of officials who colluded with the Americans in effectively kidnapping him and taking him to Guantanamo."

Article Index



How I Entered the Hellish World of Guantanamo Bay

David Rose writes of Martin Mubanga, February 6, 2005, Observer

[…]

For many months after Mubanga was seized in Zambia with the help of British intelligence and sent to Guantánamo, the American authorities maintained that he was a dangerous "enemy combatant", an undercover al-Qaeda operative who had travelled from Afghanistan on a false passport and appeared to be on a mission to reconnoitre Jewish organisations in New York. But documents obtained by The Observer now reveal that by the end of last October the Pentagon's own legal staff had grave doubts about his status, and had overturned a ruling that he was a terrorist by Guantánamo's Combatant Status Review Tribunal.

Like the other three men who were released last month, Moazzam Begg, Feroz Abbasi and Richard Belmar, Mubanga was held for one night at Paddington Green police station on his return to Britain and questioned. He was released unconditionally, the police having concluded within just a few hours that there was no evidence to sustain charges of terrorism.

His allegations about his treatment at Guantánamo echo similar claims by other freed detainees, and information from American official sources. In December, US civil rights groups obtained more than 4,000 pages of documents under the Freedom of Information Act about the abusive treatment of detainees. They included memos by FBI men who visited Guantánamo, the US internment camp set up on American territory on the island of Cuba in early 2002 which still houses over 500 "enemy combatants" despite attracting international criticism, and reported their concerns to their superiors.

On Friday, another memo by the US military's Southern Command was leaked to the Associated Press. It described videotapes of assaults on prisoners by Guantánamo's "Instant Reaction Force" or "IRF", a riot squad deployed against prisoners deemed to have broken the camp's rules. One video showed guards punching detainees and forcing a dozen to strip from the waist down. Another showed a guard kneeing a detainee in the head.

Mubanga said that in his final months at Guantánamo – just as the military lawyers were having doubts whether he really was a terrorist – the IRF was used against him three times.

Mubanga was born on 24 September, 1972, and emigrated to Britain with his mother, brother and two elder sisters three years later, when his father died. He was 15, a pupil at St George's school near his home in Kingsbury, north-west London, when his mother died from malaria. Soon afterwards he left school with just two GCSEs. After an abortive attempt at a college course in engineering, he began to get into trouble, and at 19 was convicted of trying to steal a car and sent to Feltham Young Offenders' Institution. It was there that he began to take an interest in Islam. In 1995 he spent six months in Bosnia, working with a charity with Muslim victims of the Serbs' ethnic cleansing.

Mubanga left Britain for Pakistan in October 2000, where he says he was planning to study Islam and Arabic. After a spell in Peshawar he entered Afghanistan and attended two madrasahs (Islamic schools) in Kabul and Kandahar.

Mubanga had a flight back to Britain booked for 26 September, 2001, from Karachi, and says he had planned to return to Pakistan by bus. But after the terrorist attacks of 11 September, the bus stopped running. Hiding in Kandahar while the American bombing campaign began, he says he discovered that his British passport and his will were missing. "I don't know if they were lost or stolen. I just realised one day they were gone."

With the war still in its early stages, before the fall of Kabul, he found a middleman willing to take him back to Pakistan. Mubanga had dual nationality and says he then phoned his family in England to ask them to post his Zambian passport to him in Pakistan. Before returning to Britain, he decided to visit relatives in Zambia. In February 2002 he flew to South Africa. After a week in Johannesburg, he took a bus to Lusaka, where he was reunited with his older sister, who was also visiting from the UK. (She has asked us not to publish her full name.)

It was then that Mubanga's sister was phoned from London by her boyfriend, and informed that the Sunday Times had published a story on 2 March claiming that a man called Martin Mubanga had been in custody for at least two months after being captured by coalition forces fighting the Taliban in Afghanistan. Here, Mubanga thought, was the answer to what had happened to his passport. He travelled north from Lusaka to visit an aunt near the town of Kitwe. There, a few days after the article was published, he was arrested by the Zambian security service.

Mubanga's solicitor, Louise Christian, suggested that by this time the authorities must have realised they did not have Martin Mubanga in Afghanistan, and would easily have discovered that the real one had recently flown from Karachi to Africa.

Yet after the first two nights, Mubanga said, he was not held at a conventional police station or prison, but in a series of guarded motel rooms in and around Lusaka. There he says he was interrogated for hours at a time each day, at first by the Zambians. He recalls they asked him whether he wished to be Zambian or British. "I chose British. I thought that might be safer. It seems that may have been a mistake."

Within a few days, new interrogators arrived: an American female defence official and a British man. He said he was from MI6 and called himself Martin. "Martin tried to bond with me by saying he supported Arsenal like me. It was pretty transparent. You didn't have to talk to him long to realise he hadn't spent very much time on the North Bank."

On the third or fourth day, "agent Martin" produced Mubanga's British passport, his will and two further documents, which, he claimed, had been found with the passport in a cave in Afghanistan. One was a list of Jewish organisations in New York, which, he suggested, Mubanga had been ordered to reconnoitre on behalf of al-Qaeda. The second was a handwritten military instruction manual, which he accused Mubanga of writing. Mubanga protested he had not seen them before, and that he had never been to any Afghan cave, pointing out that his own untidy hand was nothing like the manual's neat script. There was no proof that he had any connection to either document, but this remained the most serious accusation the Americans made against him.

At the same time, Mubanga said, both the American woman and "Martin" tried to recruit him as an agent, asking him to settle in South Africa or, if that was too far, in Leeds. "They wanted me to go where no one would know me, I suppose so I could be undercover. I refused."

After three weeks of these sessions, the American told him one morning: "I'm sorry to have to tell you this, as I think you're a decent guy, but in 10 or 15 minutes we're going to the airport and they're taking you to Guantánamo Bay." Mubanga knew what this meant. "Like everyone else I'd seen the pictures of the prisoners in their goggles and jumpsuits, kneeling in chains in the dust. They took me to a military airstrip, stripped me, did an anal search and then put me in a big nappy, which they seemed to think was funny. They put on the blindfold, the hood and the earmuffs and chained me to a bed in the plane. We stopped somewhere, but in all the flight took about 24 hours."

Mubanga arrived in Guantánamo at the beginning of May. For the first two months he was held with other English-speaking prisoners, including one of the three men from Tipton in the west Midlands released last March. "He was planning to write a letter to Tony Blair complaining about our plight, and I suggested he put in a bit saying that Blair had said he would never talk to terrorists yet had negotiated with the IRA. Of course they [the Americans] read it. It seemed to make them mad, because for the next 18 months I was kept in cell blocks where the only people around me apart from the guards spoke only Arabic. I always thought one of the main things they were trying to do was break you mentally, make you go crazy. So I thought, either I sink or I swim. I decided to swim and that meant learning Arabic."

In the months that followed, he became proficient in this language. Early last year, his spirits lifted dramatically when rumours swept the camp that six or seven British detainees – including Mubanga – were about to go home. He was transferred to a new block with the other British detainees, but when it came to getting on the plane Mubanga was left behind. Then the Americans moved him again – to a block where all the other prisoners spoke neither English nor Arabic, but only the Afghan language Pashtu. "I ended up feeling really abandoned, left behind. They were playing games with me." As he recalled this dark time, for a moment Mubanga's eyes brimmed with tears. "In my interrogations for a while after that they used to taunt me saying: ‘Those other boys have gone home. Do you think you know why you're staying here?’ They wanted to make me think I would be there forever."

It seems that one reason Mubanga was not sent home last year but interrogated with new vigour was that the Australian detainee, David Hicks, had made false allegations – since withdrawn – about him under the stress of his own interrogation.

Mubanga began to suffer still harsher conditions. In the terse, military abbreviations of Guantánamo, he was put repeatedly on "Cl" (comfort item) loss, so that books, his cup, board games and anything else which might help pass the time were removed. Later, he endured "BI (basic item) loss", when his thin mattress, trousers, shirts, towel, blankets, and flipflops were also taken away, leaving him naked except for boxer shorts in an empty metal box. "You had to be calm, bottle up any anger you might feel, show you were prepared to be docile. If you did that, slowly you'd get your items back: first your flipflops, the next day your mattress, the next day your trousers, after that your blanket and shirts."

Last autumn he was held in isolation in the punishment "Quebec block", where blankets would be removed between 6am and 11pm. There, communication with other prisoners was almost impossible. It was in this period that he fell victim to the IRF for small acts of defiance, such as refusing to come in from his 15 minutes of recreation. Each time the squad forced him to the floor, knelt on him, and trussed him tightly so he could not resist.

Yet even as they intensified the harshness of his conditions, the Americans were beginning to recognise officially that Martin Mubanga might not be a member of al-Qaeda at all. In October his Combatant Status Review Tribunal, a panel of military officers which examines the evidence against detainees without any legal training or advice, decided he was an unlawful combatant, and should therefore continue to be detained at Guantánamo indefinitely.

But at the end of October, James Crisfield Jnr, an American military lawyer, found this decision deeply flawed. His report, which has been obtained by The Observer, shows that Mubanga had asked for his sister, aunt and brother to testify in his defence. They could prove, he said, that he had not travelled to Zambia on false documents for a terrorist mission. The tribunal officers claimed that these defence witnesses were "not reasonably available" and that their testimony would be irrelevant. Crisfield disagreed, stating: "Under the circumstances, the detainee's reasons for travelling to various countries was relevant. If the detainee's motive for travelling was to do something other than join or support al-Qaeda, that evidence could have some tendency... to make it less likely that the detainee joined or supported al-Qaeda." In Crisfield's opinion, the tribunal hearing was "not sufficient", and he ordered that attempts be made to contact Mubanga's family.

There is no way to independently verify Mubanga's account of why he travelled to Afghanistan. But after almost three years of rigorous and sometimes brutal interrogation, no evidence has been adduced that he was guilty of any involvement in terrorism.

For the last month before his release, Mubanga was taken to the super maximum-security part of Guantánamo known as Camp Echo. "There, you were in an individual bungalow without even a gap in the door, so even if you shouted out you couldn't talk to anyone. There was a camera in the room and they'd write down what you did every 15 minutes. If you went to the toilet, they'd write it down.

"I think it was one last attempt to get me to go crazy. One guy went back to Camp Delta after six months in Camp Echo. He'd lost his mind completely." Mubanga remains deeply concerned about some of the prisoners he met in Guantánamo. One is a former al-Jazeera reporter arrested in Afghanistan whom he saw being assaulted brutally by the IRF, leaving him with black eyes which took weeks to go down. "There's also a lot of people there who think they'll be killed if they ever went back to their own countries. They're in limbo. As far as they're concerned, it's open season for the American government."

Yet Mubanga, though traumatised by his ordeal, believes he stayed sane partly because of his growing religious faith, and partly because of his rapping. He has a provisional title for the album he'd like to record: Detainee . He also has a stage name – 10,007, his Guantánamo prisoner number. The content of his work is strongly political. There were times, Mubanga said, "that I wanted to explode. And when I did, I tried to remember Allah, not to use aggression in that way. I never fought any of the guards, I never spat at them, or like some prisoners did, threw a packet of faeces. A lot of the time you go on to autopilot and you just have to tell yourself you're still here, it is happening, it is real. The golden rule a lot of us had is, if you don't feel tired, don't force yourself to sleep, stay active. That's why I made myself learn Arabic.

"For three years, I was locked in a room where I couldn't walk as far as this chair that I'm sitting in to that window, and now suddenly I'm back in London. It's hard to adjust: all my friends have got engaged, their lives have moved on. Yet though it's so different, I still know London from my time as a courier. Last week a friend gave me a lift and I was giving him directions and I pinched myself: one week earlier I had been in Guantánamo."

[…]

Article Index



Banning, house arrests – it all sounds eerily familiar:

Clarke's Plans Take Me Back to the Days of the South African Underground

By Gillian Slovo, February 2, 2005, Guardian

There was a moment in June last year when an already irate Foreign Office minister, Chris Mullin, seemed about to erupt. It was when a member of our delegation of relatives and supporters protesting at the Guantánamo incarcerations said that what was being done by the Americans in Cuba was reminiscent of the actions of apartheid South Africa. Snorting with derision, Mullin ridiculed the idea.

Now the government he serves is proposing a set of orders that will bring to Britain the beginnings of the kind of legal travesty that the Labour party once so energetically campaigned against.

Since I started working on the issue of Guantánamo, the South African precedent has kept repeating on me. Interviewing fathers whose sons had been swallowed up by the black hole, first of Bagram air base and then Guantánamo, I was reminded of the succession of people who used to come to our Johannesburg home, asking my parents to find relatives who had been picked up by the South African police and then had disappeared.

Hearing of the way British resident Bisher al-Rawi was transported, by the Americans, from the Gambia, via Bagram, to Guantánamo where, three years later, he is still held, or of the way British citizen Moazzam Begg was snatched from Pakistan and taken to Guantánamo, I thought of the kidnapping by the South African security forces of anti-apartheid activists from Swaziland.

And listening to the debate on whether or not torture was being used in the American camp, I wondered why the seemingly indefinite incarceration without access to lawyers or contact with their relatives wasn't recognised for what it was when the South African regime had done likewise – psychological torture.

Hearing Mullin's scorn at the South African comparison, it intrigued me that he could live comfortably with the knowledge of Belmarsh and its deliberately different handling of people based, not on colour of skin, but on the accident of their place of birth.

There are differences. Apartheid involved the systematic exclusion of the majority from their country, the transformation of the black population into foreigners. In contrast, the incarcerations at Belmarsh were only for people who are already foreigners.

But there are also other, equally worrying, differences. In South Africa, at apartheid's height, people could only be detained for 180 days before their detention orders had to be renewed. In Guantánamo, and in England until the law lords’ judgment, the incarcerated faced the prospect of life-long detention.

This comparison should not be made frivolously. Mullin is right: Britain is not apartheid South Africa. That country disenfranchised its majority, and did not hesitate to use the might of the state, and the firepower of its police and army, to ensure the continuation of minority rule. There is one other crucial difference: apartheid was so systematically and thoroughly embedded in South African law, that resistance by the judiciary was impossible.

It wasn't always like that. The Nationalist government's attempt in 1956 to convict hundreds of activists in the treason trial ended, four years on, with the acquittal of all of the accused. The government's response was to ratchet up its laws until there was no room for manoeuvre within the judiciary. Inquests, trials and summary detentions: all passed by on the nod.

Not so in Britain. The laws lords' judgment has meant that Charles Clarke has had to propose alterative arrangements for the Belmarsh detainees. But now, in a bizarre twist, that judgment has been met by the home secretary's threat to introduce another apartheid stand-by: bannings and house arrests.

South Africans once knew all about these measures. Before South Africa's first democratic election, you could be banned from pursuing a particular profession, from talking to another banned person, or from being in the same room with more than two people. And you could be under house arrest: banned from leaving your house during the day or, in the most punishing cases, at any time.

This is what the home secretary seems to have in mind for Britain. His argument is based on the premise that monitoring the Belmarsh detainees (many of whom have been taken beyond the brink of nervous breakdown by their detention) can never be 100% reliable. Prevented by the law lords from keeping them in jail, he now proposes to indefinitely restrict them to their homes.

Clarke's soundbites remind be of my childhood days in South Africa, which were punctuated by midnight police raids. One unforgettable memory is of being rudely woken in the early hours of January 1, so that a couple of policemen could search under my bed. They were looking for visitors who might have come to celebrate the new year with the house-arrested and banned adults.

Why did the police do it? A degree of intimidation must have been involved, the kind that had become routine. But they also did it because it was their job to make sure banning orders were not contravened. If these new measures are passed, that is what will have to happen here: those same policemen will have to make sure that those who are supposed to stay locked up in their homes never step out.

In South Africa, anti-apartheid activists accepted raids, imprisonments and bannings as a fact of life. The law was clear. If you belonged to a banned organisation such as the African National Congress, then you knew you were committing a crime. Here it is different. Here we play witness to a Guantánamo where a man like Begg is not, on the grounds of a possible breach of security, allowed access even to his own statement; or a Belmarsh where detainees are not allowed to hear of what it is they are accused. And yet now the government is planning to sentence them to their own privatised hell, a move they are understandably resisting.

We are told that the Belmarsh detainees cannot be charged because making phone-tap evidence available is to put us in danger. Yet, in the light of WMDs that turned out not to exist, and the arrest of Rawi before he left for the Gambia, on the heinous crime of possessing a battery charger, one could be forgiven for questioning not only the veracity but also the existence of this secret intelligence. Just because the government says that the intelligence community has told it something, are we supposed to take this on trust? And just because the government tells us it knows something that we can never know, should we allow it to give away our hard-won democratic freedoms?

If, in the name of defending democracy against terrorism, we permit these changes to our law, then it is the terrorists who can boast that they have won.

Article Index



New "anti-terrorist" proposals:

Further Steps Towards A Police State

CAMPACC (Campaign against Criminalising Communities) Statement, 7 February 2005

Political "control orders" are no more acceptable than internment

We fundamentally oppose Charles Clarke¹s proposals for civil "control orders" on `terrorist suspects¹. Such powers would not meet the Law Lords¹ objections to internment.  They would, moreover, extend the current culture of suspicion by stigmatising and punishing individuals on the  basis of what they might do, not what they have done.

We believe that all of these powers are completely unacceptable, unjustified, and amount to installing a police state.  The Home Secretary envisages that anyone, British or foreign, could be subjected to a control order, including electronic tagging, restrictions on association, or use of phones and internet, even house arrest. Any breach of an order could be punished by imprisonment.  

Such powers are in fact political control orders, which would restrict political activity, perhaps including opposition to the detention or mistreatment of friends and relatives. They could be used for politically motivated restrictions on individuals. Control orders represent the type of measure associated with dictatorship, not democracy. They echo the 90-day and 180-day detention powers of apartheid South Africa, which many Labour politicians opposed in their youth.

No derogation from the European Convention on Human Rights

Civil control orders would extend the already invidious principle of ASBOs, namely that someone can be declared guilty and go to jail simply for breach of an order, even though not convicted of any  substantive offence. ASBOs are highly controversial and have been widely opposed on the grounds that (like interment) they impose punishment on those not proven guilty.  The proposed anti-terrorist control orders go a stage worse than ASBOs, by permanently stigmatising those under Œcontrol¹ and those who live with them.  Some restrictions would amount to collective punishment of entire families by denying them access to communication (e.g. telephone, internet, visitors).  Moreover, control orders could specifically name families and friends of Œsuspects¹.

There are precedents that house arrest would require a further derogation from the European Convention on Human Rights. The majority view of the Law Lords was that even if a derogation was justified, the actual power of internment was disproportionate to the threat facing Britain.  House arrest is just as disproportionate; the recent SIAC hearings revealed that some detainees fear house arrest almost as much as internment in prison. Lord Bingham said that derogation from the ECHR was itself disproportionate to the level of threat faced by the UK.

Going further, Lord Hoffman stated that `there is no emergency which threatens the life of the nation¹.  He implicitly gave support to what CAMPACC has long argued; that the government bases its actions on a "fake emergency". Throughout the IRA bombing era, which lasted almost 30 years, no such drastic powers as Charles Clarke now proposes were deemed necessary in mainland Britain. Moreover, internment in Northern Ireland was discredited as ineffective as well as unjust.  The Home Secretary has a dilemma only in attempting to maintain the pretence of a "public emergency" which warrants extraordinary measures.

Innocent till proven guilty; no punishment without jury trial and conviction

Under the Home Secretary¹s proposals, people could be subject to a civil control order without any criminal charge. They would not necessarily be told of the evidence against them. Like the internment power which the Law Lords have rejected, such orders impose punishment without conviction through a proper jury trial. This would violate a fundamental principle of justice;  the right to be presumed innocent until proven guilty. Such powers would impose a criminal-type sentence without trial, in the name of preventing hypothetical crimes.  

Control orders, under Charles Clarke¹s original proposals, could be imposed by the Home Secretary without recourse to a judge, thus imposing punishment on the  mere word of a  politician. The power to restrict freedom of communication and association would bypass the independent judiciary; the government seems determined to emasculate the judges¹ role so as never to face the Law Lords again or to face any court challenge. Some modifications to the proposals, suggested by other political parties, would have the orders imposed by a judge. Even if the judiciary was involved in control orders, judges would still impose preventive detention. Moreover, judicial involvement would discredit the professional role of judges and the legal system.

House arrest, and in some cases restrictions on communication, association and movement, could deny detainees other basic human rights covered by the ECHR, such as the right to family life and the right to earn a living. The Home Secretary has not made it clear how detainees subject to control orders,  who may have wives and children,  would gain their daily bread  if they could not leave their homes or use telephones.  

The  secrecy of potential evidence has been used by the government as a justification for not giving detainees a fair trial in court.  We cannot accept the argument that surveillance evidence should be kept secret to protect intelligence agents and their operations.  Ordinary police officers and members of the public are expected to give evidence in court against the most dangerous criminals. We see no reason why the intelligence services should receive special treatment and why evidence currently withheld from terrorism suspects should not be revealed to them and to a court.

No deportations, extraditions, or outsourcing of mistreatment

The Home Secretary has said that terrorist suspects could be subject to control orders pending deportation. CAMPACC does not accept that deportation to the mercy of regimes recently guilty of human rights abuse can be made to comply with the ECHR. The British government must not `wash its hands¹ of the matter by supposing or pretending that `memorandums of understanding¹ with governments such as Egypt or Algeria would be respected.  

The risk of torture or execution is higher for people who have been `certified¹ as `international terrorists¹ by the UK government, providing their country of origin with a perfect excuse. Outsourcing mistreatment to another country is not an appropriate solution. If the government genuinely believes that the `suspects¹ are dangerous, it will hardly deport them unless arrest at their destination is likely.

Detainees should not be handed over to foreign powers  which will use inadequate standards of justicial procedure, and these include the USA. We have already seen several British citizens suffer torture in Guantánamo, only to be returned to the UK and freed without charges. Two British residents now in Guantánamo were taken by US agents from West Africa with the apparent connivance of the British authorities. Another UK citizen, Babar Ahmed, is awaiting extradition proceedings and is at risk of mistreatment if they succeed. We must remember that the USA has denied proper legal process to several hundred prisoners in Guantánamo and frequently imposes the death penalty.

Both internment and control orders threaten democracy

The next few weeks will see a proposal that Parliament should temporarily renew the internment powers of the Anti-Terrorism, Crime and Security Act (ATCSA) 2001, or a debate on new anti-Œterrorist¹ legislation. The fundamental principle of "innocent till proven guilty" must be upheld. To do otherwise is to invite a degree of political control over the government¹s opponents which would delight any dictatorship.  MPs, the mass media and the public should recognise that the proposed Œanti-terrorist¹ measures  threaten democracy. To accept them will be to allow the government to wreck lives and reputations, as well as to help establish a police state.

Article Index



National Lobby for Human Rights and Civil Liberties

Friday 11th March 2005 - Saturday 12th March 2005

Noon until noon, Local MPs


The Campaign Against Criminalising Communities (CAMPACC) is organising a national constituency lobby for human rights and civil liberties against the extreme powers exercised by the Home Secretary under so-called "anti-terror" laws.

Who is sponsoring the lobby

Organisations: Muslim Parliament, Voices in the Wilderness, Haldane Society of Socialist Lawyers, CND, Liberty, Stop Political Terror, 1990 Trust; Respect - The Unity Coalition; Stop the War Coalition; Red Pepper; The Green Party.

Individuals: Kevin McNamara MP, John McDonnell MP, Tony Benn, Bruce Kent, Gareth Peirce, Louise Christian, Lord Rea, Victoria Brittain, Liz Fekete, Jean Lambert MEP.

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For Your Information:

Statement by Home Secretary on "control orders" (26 January 2005)

Measures to Combat Terrorism
12.31 pm

The Secretary of State for the Home Department (Mr. Charles Clarke): With permission, Mr. Speaker, I should like to make a statement about the future of the powers in part 4 of the Anti-terrorism, Crime and Security Act 2001. These matters have of course received the closest attention in this House and in the other place, through the work of the Intelligence and Security Committee, the Home Affairs Committee, and the Joint Committee on Human Rights—to all of which I pay respect. I appreciate, too, the valuable work carried out by a Committee of Privy Councillors under the chairmanship of Lord Newton of Braintree, and of course we have had the regular advice of Lord Carlile of Berriew on the operation of both the Anti-terrorism, Crime and Security Act and the Terrorism Act 2000. This work shows the comprehensive scrutiny that both Houses give to these difficult issues. And of course, what I am saying today follows on from the consultation paper that my predecessor published in February last year, which has informed the conclusions that I am presenting today.

As the House well knows, the part 4 powers are immigration powers. They enable me to certify and detain pending deportation suspected international terrorists whom, because of our international commitments, we cannot remove. Despite concerns when we legislated for part 4, the powers have been used very sparingly, with only 17 people certified since the powers were introduced. Those currently certified and detained were certified as being suspected international terrorists on the basis of a careful Security Service assessment of the significant threat that they pose—and that judgment has been upheld regularly by the Special Immigration Appeals Commission.

On 16 December last year the House of Lords Judicial Committee handed down its judgment on the compatibility of the part 4 powers with the European convention on human rights. The members of the Committee quashed the Human Rights 1998 (Designated Derogation) Order 2001 and declared section 23 of the Anti-terrorism, Crime and Security Act incompatible with articles 5, on the right to liberty, and 14, on freedom from discrimination, of the ECHR. They did so for two main reasons—first, because they considered that the part 4 powers were discriminatory in that they only applied to foreign nationals, and secondly, because they were not proportionate as a response to the threat that we faced from terrorism.

It is true that the part 4 powers apply only to foreign nationals. The reason for that is that when we looked at the very real threat that we faced from international terrorism in the immediate aftermath of the terrible events of 9/11, we were able to identify a small number of foreign nationals resident here who posed a particular danger to us. Prosecution for their activities was not possible for evidential reasons—although two of those certified and detained under the part 4 powers have since been convicted of criminal offences—and there was no realistic prospect of deporting them.

The part 4 powers were the means of containing those foreign nationals' activities where prosecution was not possible. I can tell the House that the Government

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believe that the powers have played an essential part in addressing the current public emergency, because they have been successful in containing the threat posed by those certified and detained under them.

Moreover, the powers have had another effect. It is clear from the intelligence reports that I have seen that the existence and use of the powers have helped to make the UK a far more hostile environment for international terrorists to operate in, with the result that some have been deterred from coming here, and others have left entirely, to avoid being certified and detained. I am, of course, pleased about that, and reaffirm that the UK must never be regarded as a soft touch or a safe haven for terrorists.

The Government believed that the part 4 powers were justified, because the threat appeared to come predominantly, albeit not exclusively, from foreign nationals, because foreign nationals do not have the same right to be here as British nationals, and because against the background of UN Security Council resolution 1373's strong condemnation of terrorism, it was necessary to take positive action against peripatetic terrorists who happened to be living here.

That said, however, I accept the Law Lords' declaration of incompatibility with the ECHR of section 23 of the Anti-terrorism Crime and Security Act. I accept, too, the Lords' judgment that new legislative measures must apply equally to nationals as well as to non-nationals. But we still need to decide how to deal with the threat presented by terrorists without the assistance of the part 4 powers.

My starting point is the threat that we face. That is, of course, a heavy responsibility for all concerned, and one that has the highest priority of all. That is why I have to take account of events happening around the world, and in particular here at home. I have had frequent discussions with the director general of the Security Service and the Metropolitan Police Commissioner since my appointment. I am left in absolutely no doubt that nothing has happened recently that diminishes the threat, or calls into question the state of public emergency threatening the life of the nation.

The 2001 Act was enacted because there was an unprecedented terrorist threat to the UK, which was assessed to emanate from al-Qaeda and those individuals and groups within the loosely co-ordinated series of overlapping terrorist networks linked to it. Our understanding of the threat has advanced since then, both from an increasing intelligence base and through the investigation of both successful and thwarted attacks. It is clear that some British nationals are now playing a more significant role in these threats. At the same time, networks consisting of foreign nationals with international links remain.

In the past year, we have seen the multiple attacks in Spain in March 2004, attacks at al-Khobar in Saudi Arabia in May, the attack on the Australian embassy in Jakarta, Indonesia, in September, an attack on an Israeli-owned hotel in Egypt in October, and the attack on the US consulate in Jeddah in Saudi Arabia in December 2004.

In these circumstances, I repeat that my judgment is that there remains a public emergency threatening the life of the nation. The absence of the part 4 powers would present us with real difficulties, so I now set out the ways in which we can meet this threat.

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The Government believe that the answer lies in a twin-track approach: specifically, deportation with assurances for foreign nationals whom we can and should deport, and a new mechanism—control orders—for containing and disrupting those whom we cannot prosecute or deport.

I shall deal first with deportation with assurances. As the House knows, we have been trying for some time to address the problems posed by individuals whose deportation could fall foul of our international obligations by seeking memorandums of understanding with their countries of origin. We are currently focusing our attention on certain key middle-eastern and north African countries. I am determined to progress this with energy. My noble Friend Baroness Symons of Vernham Dean visited the region last week. She had positive discussions with a number of countries, on which we are now seeking to build.

I want to make it clear that prosecution is, and will remain, our preferred way forward when dealing with all terrorists. All agencies operate on that basis, and will continue to do so, but all of us need to recognise that it is not always possible to bring charges, given the need to protect highly sensitive sources and techniques.

There is a widespread misconception that if we could only adduce intercept as evidence, we would be able to prosecute those detained. However, the review of intercept as evidence found no evidence to support this, and I have consequently made a written statement today, explaining that the Government do not intend to change the existing arrangements. Intercept provides only part of the intelligence against individuals, and sometimes a small part; it does not stand alone. Some of the material that we have in these cases is inadmissible, and other material, while technically admissible, could not be adduced without compromising national security, damaging relationships with foreign powers or intelligence agencies, or putting the lives of sources at risk. So there are cases in which we remain unable to prosecute. However, that does not mean that we should do nothing to forestall suspected terrorists or to prevent them from planning, assisting or otherwise supporting those willing to carry out attacks.

The Government have therefore decided to replace the part 4 powers with a new system of control orders. We intend that such orders be capable of general application to any suspected terrorist irrespective of nationality or, for most controls, of the nature of the terrorist activity—whether international or domestic—and that they should enable us to impose conditions constraining the ability of those subject to the orders to engage in terrorist-related activities. Control orders would be used only in serious cases. The controls imposed would be proportionate to the threat that each individual posed. Such orders would be preventive and designed to disrupt those seeking to carry out attacks—whether here or elsewhere—or who are planning or otherwise supporting such activities. They would be designed to address directly two of the Law Lords' concerns: discrimination and proportionality.

I turn to the key features of the scheme. The Secretary of State would consider whether, on the basis of an intelligence assessment provided by the Security Service, there are reasonable grounds for suspecting that an

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individual is, or has been, concerned with terrorism. If the answer to that question is yes, and if the Secretary of State considers such action necessary for the purposes of protecting the public from terrorist-related activities, he or she would impose controls on that individual. There would be a range of controls restricting movement and association or other communication with named individuals; the imposition of curfews and/or tagging; and restrictions on access to telecommunications, the internet and other technology. At the top end, control orders would include a requirement to remain at their premises. The controls to be imposed under the new scheme will not include detention in prison, although I intend that breach of a control order should be a criminal offence, triable in the usual way through the criminal courts and punishable by imprisonment.

There will be independent judicial scrutiny involving the hearing of evidence, in open and closed session, against the imposition of the order or any subsequent variation of its provisions. There will be a mechanism for reviewing and modifying conditions as circumstances warrant, subject again to independent judicial scrutiny. Other safeguards will include the Secretary of State reporting regularly to Parliament on the number of orders made. There will be independent annual review of the powers—as now with the part 4 powers—and annual renewal of them. I am considering separately what role the Intelligence and Security Committee of this House might play in that regard.

The Government of course intend to ensure that any future powers that we take in legislation are wholly compatible with the provisions of the European convention on human rights, and if necessary we will employ a new derogation to that effect. I have sought advice from the director general of the Security Service and the Metropolitan Police Commissioner about the powers that we need to deal effectively with the public emergency threatening the life of the nation, and to deal with British and foreign nationals whom we have grounds to believe are engaged in terrorism. On the basis of that advice, my judgment is that the range of powers that I have outlined, including a criminal sanction for breach, will be essential if we are to contain the threat that those who may be made subject to control orders pose to public safety.

I told the House on 16 December that I intended to renew the part 4 powers as necessary. However, my desire is to introduce a Bill to give effect to control orders as soon as is practicable. I can see advantages in enacting the Bill, if it is possible to do so, to a time scale that makes renewal unnecessary. Should that not be possible—I acknowledge that there are serious time pressures—I will seek to renew the part 4 powers for the limited time necessary to put the new arrangements in place. I will need to lay the renewal order in draft, and I will do so tomorrow.

For this reason, I will not be revoking the certificates on the current detainees between now and when the new legislation is in place, unless, of course, the threat that they pose changes and they no longer meet the criteria for certification. Those currently certified and detained were certified as being suspected international terrorists on the basis of a careful Security Service assessment of the significant threat that they pose. That judgment has

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been upheld by the Special Immigration Appeals Commission. We believe that those detained under the part 4 powers continue to pose a threat to national security, and that we should seek to ensure that we take all necessary steps to address that threat.

These are all very difficult issues, with no easy answers. A careful balance has to be struck between the rights of individuals and the protection of society against threats from organisations that seek to destroy central attributes of our society, such as freedom of belief, speech and association, freedom of expression and even our central democracy. All parts of our society—Parliament, the legal system and the media—need an open debate about this so that we understand the complexities of the security situation that we face. I will shortly be bringing forward detailed proposals for the best way to conduct that debate.

My principal responsibility as Home Secretary is to preserve our democracy against those who seek to destroy it through terrorist attacks. The threat is real, and I believe that the steps I am announcing today will enable us more effectively to meet that threat. I am, of course, well aware that the proposals I am making today represent a very substantial increase in the executive powers of the state in relation to British citizens who we fear are preparing terrorist activities and against whom we cannot proceed in open court. That will be contentious, but I believe that the need for us to protect ourselves against the threat justifies the changes I propose. I commend the statement to the House.

Statement by the Home Secretary on the "interception of communications" (26 January 2005)

HOME DEPARTMENT
Interception of Communications

The Secretary of State for the Home Department (Mr. Charles Clarke): I am announcing today the Government's conclusions on the review on the evidential use of intercept material in criminal proceedings. This accompanies the announcement I intend making on counter-terrorism legislation following the House of Lord's ruling on the use of Anti-terrorism, Crime and Security Act 2001, Part 4 powers.

My right hon. Friend the Prime Minister commissioned the review in July 2003. Its remit was to examine the benefits and risks of using intercept as evidence to secure more convictions of organised criminals and terrorists. In doing so, the review was tasked with considering how a legal model, providing for the use of interception for evidential purposes, could be deployed in a way which is compatible with the ECHR, addresses the practical concerns of the intercepting agencies and takes account of developments in communications technology.

The review, which was the most thorough and far-reaching of five reviews on the subject in the last 10 years, reported last summer. It concluded that evidential use of intercept would be likely to help secure a modest increase in convictions of some serious criminals but not terrorists. The preferred legal model for evidential use of intercept would comprise three types of interception warrant—intelligence only, non-evidential and evidential, the latter requiring authorisation by a judge. Intelligence only and non-evidential warrants would continue to be authorised by the Secretary of State and would provide criteria-based protections against disclosure in court of the most sensitive interception capabilities and techniques. Set against the benefits that this approach might deliver, the review identified a number of serious risks that evidential use of intercept would entail for the intercepting agencies and their present capabilities in fighting serious crime and terrorism.

The review did not make agreed recommendations for or against lifting the prohibition on evidential use of intercept but invited Ministers to consider, in the light of the evidence presented on the balance of benefits and risks, whether or not to do so. Further work on what might be done to mitigate the risks identified in the review report was completed shortly before Christmas. This showed that there was no immediate prospect of

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removing the main risks, partly because of the difficulty of assessing the impact of major changes expected in communications technologies over the next few years.

The Government have from the outset made it clear that we would change the law on evidential use of intercept only if we could be satisfied that the benefits of doing so clearly outweigh the risks. We have therefore concluded that it would not be right to legislate now to remove the existing prohibition. We will continue to keep these issues under review.

The review report is a classified document which cannot be published in the ordinary way. It will however be made available to the Intelligence and Security Committee to which I will give further evidence if requested to do so. A summary of the report's main findings is set out below:

- there is no easy or risk free way of keeping what our "intelligence only" approach—with its uniquely close working relationships between law enforcement and intelligence agencies—delivers now and adding to this the benefits that evidential use of intercept could deliver. Evidential regimes in other countries provide useful pointers on the latter but are of little help on the first point;

- the ideal of allowing intercepting agencies unfettered freedom to choose when to go evidential is not an option as it would be open to "cherry picking" and therefore fails to meet the requirements of ensuring fairness in criminal proceedings;

- evidential use of intercept would be likely to help convict some serious criminals;

- intercept evidence would be unlikely to assist in prosecuting terrorist targets and would not have made a critical difference in supporting criminal prosecution of those detained under ATCSA (Part 4) powers;

- a legal model providing for three types of interception warrant—intelligence only, non-evidential, and evidential—appears to offer the best basis for evidential use of intercept. Substantial further work would be needed on the details of the legal model before it could be introduced. Major changes expected in communications technologies over the next few years mean that the model potentially has only a very short shelf-life.

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