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Is a pair of boots
all that stands between 11 untried detainees and their liberty?
After the law lords'
ruling that the government is in breach of human rights legislation
by holding terror suspects without trial, Martin Bright reveals that
a pair of boots is the type of evidence still keeping them in
Belmarsh
It all hung on the
boots, or more precisely when a boot is simply a boot and when it
might be construed as a terrorist weapon.
This weekend, with the government still reeling from a judgment by
judges in the House of Lords that a key plank of its terrorist
legislation is unlawful, The Observer can reveal full details of the
allegations, which critics say 'are flimsy' at best, against the 11
Arabs who have been held for three years in Britain's highest
security prisons, Belmarsh in south-east London and Woodhill near
Milton Keynes in Buckinghamshire.
At the heart of it all is a pair of boots sent to help Islamic
Chechen rebels 'survive marching over rough ground in harsh
weather'. The boots, supplied by an Algerian terrorist suspect known
only as Mr A, have become a symbol of the injustice that the
detainees' supporters say the men have suffered.
Home Office and court documents seen by this newspaper show that,
apart from the evidence of the boots - allegedly supplied to Chechen
rebels with sleeping bags and telecommunications equipment - most of
the allegations are based on hearsay and guilt by association.
The Observer has also discovered that detainees have been pressured
into co-operating with the British intelligence services in return
for favourable treatment at bail hearings.
One Algerian man, who gave an interview to this newspaper earlier
this year in which he suggested that his prison conditions were so
bad that he might even consider returning to his home country
despite the danger, has been told that the British government is
prepared 'to ease' his return.
Lawyers for the men have been shocked at this approach, as the Home
Office has recognised that it cannot deport the men because of the
threat of the death penalty or torture they face.
Last week the government's anti-terrorism laws lay in tatters as a
group of nine law lords voted eight-to-one that the legislation
passed in the aftermath of the 2001 terrorist attacks on the United
States was incompatible with the European Convention on Human
Rights.
In a devastating critique of Tony Blair's 'war on terror', Lord
Hoffman said: 'The real threat to the life of the nation, in the
sense of a people living in accordance with its traditional laws and
political values, comes not from terrorism but from laws such as
these.
'That is the true measure of what terrorism may achieve. It is for
Parliament to decide whether to give the terrorists such a victory.'
Lord Nicholls chimed in with his judgment: 'Indefinite imprisonment
without charge or trial is anathema in any country which observes
the rule of law. It deprives the detained person of the protection a
criminal trial is intended to afford.'
But the lords were asked to rule on principle, not on the facts of
the case. They did not see the secret intelligence material that
allegedly shows just how dangerous these individuals are to public
safety.
The new Home Secretary, Charles Clarke, has said that he has no
intention of repealing the section of the Anti-Terrorism Crime and
Security Act that allows detention without trial. He has emphasised
that it is not the law lords, but Parliament which must decide
whether these measures stand or fall.
One of the safeguards built into the legislation means that it must
be renewed by Parliament in March, but Clarke has made it clear that
he intends to defy the law lords and urge Parliament to back him,
although he has said he will consider ways to make the legislation
compatible.
Home Office sources told The Observer this weekend that Clarke might
be forced to consider other ways of controlling the movements of the
suspects. Already one terminally ill former detainee is being held
under house arrest, and this may be an option for the other men
still considered a danger by the intelligence services.
It is thought that modern tagging technology should be sophisticated
enough to control the movements of the men. Such a move would almost
certainly be less expensive than maintaining them in a high-security
regime, but ministers would also hope that it would diffuse the
furore over Britain's draconian anti-terror laws.
Clarke faces an almost impossible choice. It is politically
inconceivable that he could give the men their unconditional freedom
when MI5 has expressed serious concern about them and his
predecessor has signed certificates marking them out as
international terrorists.
But refusal to recognise the lords' ruling could also have serious
consequences - ultimately, the refusal to recognise that the
European Convention on Human Rights applied to the detainees could
force us to withdraw from the convention itself.
Solicitor Gareth Peirce, who represents several of the detainees
believes that government refusal to comply could even force
ministers to pull out of the Council of Europe altogether.
She outlined to The Observer plans to challenge the Home Secretary
in the starkest possible terms: 'If by early January the government
hasn't moved to say what it's going to do to comply, and quickly,
the detainees have the option of going straight to the European
Court of Human Rights. They could easily demonstrate that there was
no domestic remedy and it is inconceivable that they would lose.
'Not one of the other countries has decided that there is a national
emergency. If they still don't comply, then they would have to
withdraw from the Council of Europe.'
Meanwhile, the rights and wrongs of sending a pair of boots to
Chechnya still stand between Mr A and freedom.
It all goes back to one of the most extraordinary court exchanges in
recent legal history.
On one side stood Ben Emmerson QC, one of the country's most
brilliant human rights lawyers, acting for the Muslim detainees held
indefinitely under the government's anti-terror laws. On the other
was a senior intelligence officer from MI5 who can only be known as
'Witness B' to protect his identity.
The surreal confrontation, which took place last May during an
appeal hearing, involved a pair of boots. It was alleged that these,
along with a sleeping bag and telecommunications equipment were
supplied by Mr A, a British-based Algerian terrorist suspect, to a
group of Chechen rebels fighting in the the lengthy civil war
against the Moscow government.
But this was not just any group of Chechen rebels, the MI5 man
explained. There were three categories of rebel in the breakaway
republic: indigenous nationalists fighting for Chechen independence,
mercenaries (including some Islamic extremists) drawn to the
conflict from outside, and hardened Arab mujahideen fighters
committed to the overthrow of the West.
The important concept to grasp, according to the intelligence
officer, was that it was acceptable for British-based Muslims to
give material support, including boots, to the first two groups, but
not those Arabs fighting for global jihad.
Emmerson returned repeatedly to the example of the boots to
illustrate the tragic absurdity of the situation that saw foreign
suspects deprived of their liberty on the word of the intelligence
services. 'You do say that a man who sends boots that end up in the
hands of Arab mujahideen is a supporter of terrorism, whereas if
that man intends to and does send the boots to other Islamic
extremists that you have categorised in group two, he is not a
supporter of terrorism within the meaning of this legislation. That
is the distinction you are drawing, is it not?'
The MI5 officer confirmed this: 'What's important is his support for
the third group. And if somebody is providing support for the third
group then they are the kind of people who we would be interested in
investigating.'
Of course, it is not just a matter of supplying boots. The men held
without trial are also accused of funding terrorism through credit
card fraud, membership of terrorist groups and association with
other known terrorists.
One of the men, Abu Qatada, a Palestinian Jordanian cleric, is a
self-professed expert on the theology of armed struggle in Islam. He
has been named as an international terrorist by several European
governments, although he claims he is a man of religion and that he
has never been convicted by a European court.
The evidence of Mr A himself was dismissed by the Special
Immigration Appeals commission (SIAC) which finally judged his
appeal last October.
The war in Chechnya is a complex and horrifying conflict with
atrocities perpetrated on both sides.
It is understandable that most people in Britain have a hazy
understanding of this brutal internecine conflict. But for many
Muslims it represents an attack on the Islamic faith every bit as
powerful as the war in Bosnia or the invasion of Iraq.
It is, perhaps, only in an English courtroom that an international
tragedy such as this could be reduced to high farce. But Mr Justice
Ouseley, a respected member of the High Court bench succeeded in
doing just this, when struggling to force an MI5 officer to clarify
Ben Emmerson QC's line of questioning about the three categories of
Chechen rebel.
'Can I ask, so I am clear, I think what Mr Emmerson is putting to
you is, for example, supplying boots to Chechnya may help those in
any group to survive marching over rough ground in harsh weather. Do
you see, for example, supplying boots as giving rise to a
distinction as between whether the boots go to group one or two, so
they can march over rough ground in cold weather, as opposed to
group three, so as they can march over rough ground in cold
weather?'
In other words: when is a boot merely a boot and when does it become
a terrorist weapon?
MI5 and David Blunkett were clear. Boots become dangerous when they
are supplied to Islamic extremists who may use them to protect their
feet from cold on rough ground while they plot the overthrow of
western civilisation.
Clarke must come to the same conclusion on the nature of the
intelligence against the terror detainees or release them in the new
year. Not since the time of Wellington has footwear played a more
important part in the security of the nation.
Source: The Observer
19 December 2004
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