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29 July 2002

How British law detains the innocent

In the greatest secrecy, Arabs are being held in London's most secure prison. Neither you nor they a

By Nick Cohen

In a featureless office block a few streets away from the London High Court, the competence and morality of the government, the law and much of the media are being exposed in one of the most unintentionally revealing judicial investigations I’ve seen. The Special Immigration Appeals Commission hearing into the legality of the introduction of internment after 11 September was not designed to be revelatory. On the contrary, by any democratic judicial criteria it is a disgrace: a species of secret justice, which is to say no justice at all.

The public is not allowed to know the names of nine of the 11 Arabs who have been interned since December. (I say only 11 have been banged up, although no one outside government can be sure.) It is not allowed to know why they were sent to Belmarsh, the most secure prison in London. The enforced ignorance means the public also can’t discover if MI5 has defied all precedent and protected its country by interning genuine terrorists for once. To make matters worse, the prisoners’ lawyers are not allowed to know the evidence against their clients. Every effort was made to stop the internees getting legal advice – help came only when a note was smuggled out of prison. The triumph was temporary. The internees’ lawyers will be expelled from the hearing, along with the public, when allegedly confidential information from the security and intelligence services is discussed. Most remarkable of all, colleagues of Lord (Peter) Goldsmith, the Attorney General – the man who is justifying the internment of Arabs – have appointed replacement lawyers to argue against the internment of Arabs in closed court. How fiercely Whitehall’s lawyers will maul a government that has vetted them, nominated them and paid them will be a state secret.

Gareth Peirce, an indefatigable human rights lawyer, makes no effort to conceal her contempt for an English Bar which lacked the principle to tell the government that its members would refuse to collaborate with this charade. I was buying her a coffee when Goldsmith’s placemen ambled by. “How can those clucks defend my clients?” she snapped. From her tone, this sounded like a cross between a klutz and a schmuck.

The tribunal, in short, bears a faint resemblance to the courts of the Soviet empire. The forms of bourgeois democracy are observed. Grave and learned judges look down from their podium. Prosecutors and defenders diligently examine their briefs and dive for their law reports to check precedents. It takes a while to realise that all that is missing is habeas corpus, open justice, the presumption of innocence, independent legal representation and fair trial before judge and jury.

And yet, the government cannot keep the home front of the covert “war” against terrorism entirely hidden. The stitch-up is fraying at the seams; and odd, awkward facts are peeking through. The first, and most alarming, is the anti-terrorists’ terror of accountability. Britain was the only country to abandon its obligations under the European Convention on Human Rights and imprison suspects without trial after 11 September.

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Explanations for new Labour’s funk range from the political imperative to “do something”, to Whitehall caving in to pressure from the Middle Eastern dictatorships to arrest Islamist exiles. The government does not pretend that the threat it perceives is more than a vague fear. On 15 October, David Blunkett told the Commons that there was “no immediate intelligence pointing to a specific threat to the United Kingdom”, and the line has not changed since. Al-Qaeda has never attacked Britain. After the destruction of its Afghan safe haven, it seems to be suffering from “acute second-album difficulty”, as Chris Morris and Armando Iannucci put it.

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None the less, men are being held indefinitely in the most oppressive corners of the prison system because Britain remains in a state of emergency. After the disastrous experiment with internment in Northern Ireland in the early 1970s, Britain had no state of emergency throughout two decades of intensive bombing campaigns. In other words, a potential threat from Muslim assassins is being treated more seriously than the actual murder of 3,000 UK citizens by Catholic and Protestant assassins.

The judiciary is being told it can’t stop the ludicrous overreaction. At first glance, the Attorney General doesn’t look as if he could frighten a child, let alone a judge. Like most new Labour lawyers, he is a fantastically wealthy commercial barrister. A career spent advising banks and corporations won’t have given him much of a grounding in the basics of English liberty. Nevertheless, he presents himself as a civilised man who is tearing up freedoms with regret because there is nothing else to be done. He speaks politely without being sycophantic or insinuating. He holds his palms up when he addresses the court, and this, along with a slightly hesitant manner, conveys openness.

His body language belies his sentiments. The judges, he said, must take the “expertise” of the Home Office and MI5 on trust. Freedom from indefinite and arbitrary detention was negated by the urgent need for security. You might reasonably believe that the only way to verify MI5’s expertise and to establish whether or not Britain is really facing a national emergency is to discover if the suspects are indeed terrorists. Yet we can say for certain, in two cases, that MI5’s “terrorists” are nothing of the sort.

Internment is reserved for foreigners Blunkett would expel if he could. They languish in jail because the Home Office says it believes they would be persecuted, maybe executed, if they were deported to their native lands. Among the many weird features of the emergency legislation is that the prisoners are free to leave if they are prepared to take the risk. If they really were international terrorists, they would then be able to organise campaigns against Britain from overseas. But that does not bother Whitehall. And the most logical explanation for its insouciance is that – just as in the Second World War, in Northern Ireland and in the Gulf war – MI5 is jailing the innocent.

The most blatant case is that of Djamel Ajouaou, a Moroccan who worked in London as a translator for Gareth Peirce and others. He knew Islamists and was trusted by them. MI5 noted the company he kept and locked him up. Ajouaou returned to Morocco. If there was justifiable suspicion against him, he would have been locked up on sight: the Moroccan monarchy gives no quarter to real Islamic militants. Yet Morocco welcomed him back. Hamidou Laanigri, head of the DST, the Moroccan secret service, said he could not understand why Britain wanted to arrest the harmless Ajouaou. A second detainee has volunteered to go to France, even though MI5 alleged that he was a member of an Algerian group which has bombed French targets.

Mr Justice Collins asked the Attorney General if the tribunal could take the blunders into account when assessing the validity of internment.

He most certainly could not, Goldsmith replied. Errors were unimportant. “The important thing is to look at the overall assessment made by the security service [MI5] and the secretary of state. It is not going to be helpful to take each piece of information and look at it in isolation.”

I’m sure it’s not helpful to back-covering bureaucrats, but it is extremely helpful to citizens who would like to know if there is a justification for their politicians adopting the methods of insurgent colonels in a fly-blown banana republic.

In place of an honest explanation for the state’s behaviour, we have the evidence presented in open court. The tribunal was given a stack of newspaper cuttings about six inches deep. None mentioned the interned men. The articles had nothing to do with the cases of the prisoners in Belmarsh or, indeed, the price of fish. Rather, they contained accounts of the al-Qaeda threat. Many quoted “security” and “intelligence” sources.

Martin Bright, the home affairs editor of the Observer, looked at them and, quite bravely, blew the whistle. In an affidavit to the court, he said the mysteriously authoritative sources were the press officers of MI5 and MI6 who spoke to him and other approved journalists on condition of anonymity. In other words, Goldsmith is using stories planted by MI5 as an independent verification of MI5’s assertions.

I know most of the journalists who deal with the spooks’ press officers, and am certain that they would have slammed their pens down if they had been told their work would be twisted to mislead a court and support internment. Yet no one in power in the media is complaining about the abuse of anonymity. With the exception of Bright, no reporter at the tribunal is getting copy published or broadcast, and several have given up trying.

Meanwhile nine men, possibly more, are being held without charge in conditions of great oppression. One, a Palestinian called Mahmoud Abu Rideh, has gone mad. From what I have been able to find out, most of the rest are Islamists – that is to say, they want Islamic governments. It is easy to understand why MI5 was interested in them. There is, however, a chasm between Islamists and Islamic terrorists, and understanding the difference is the first task of an intelligent intelligence service that wishes to concentrate on real threats.

There is an old-fashioned way of finding out if MI5 and the Home Office have grasped the distinction. The prisoners might be charged under Britain’s notoriously broad anti-terrorism laws and put on trial before judge and jury. But that the government won’t do – and almost certainly can’t do.