Humanitarian Law v National security

The news has been on and off for a long time involving the Muslim Cleric Abu Qatada. Again yesterday as ‘another’ attempt to evict him has started. There is anger in both politics and the population on a person who is receiving a large amount of support, costs a bundle in legal fees and he is staying in a house paid by the UK government which is priced at half a million pounds. In this time and age of overbearing amounts of unemployed and poverty, those events are having a very negative effect on the population.
Yet, this cannot be about feelings and emotions. We cannot ignore them, but the balance requires us to take a look in the other extreme, namely the logical view.
I will ignore most rumours and classified information involving Qatada from before the arrest of October 2002, when he was taken to Belmarsh Prison. The reason that before that date most of it is all based on he said, she said and Lucy did (Lowdown Understanding of Circulator Younglings) as the Intelligence community is sometimes labelled by those who seem there is no need for the Intelligence community.
Yet, in this specific light is their view invalid?
Britain initially detained Abu Qatada in 2002 under anti-terror laws imposed in the wake of 9/11 but he was released under house arrest, sparking a ten-year battle to send him to Jordan. This would be the Anti-terrorism, Crime and Security Act 2001. On 16 December 2004 the Law Lords ruled that Section 23 was an issue, but under the terms of the Human Rights Act 1998 it remained in force. It has since been replaced by the Prevention of Terrorism Act 2005.
The BBC reported in their time line that in October 2002 Abu Qatada was Detained without charge. If we look at the ACSA 2001 act, then we should take a look at both sections 23 and 24.
S23 talks about detaining international terrorists, despite that his removal or departure from the UK is prevented. It is nice that S23(1)(b) mentions (or) a practical consideration. So the practical consideration allows for Abu Qatada to be detained.
S23(1) does refer to part (2), which requires provision paragraph 16 of schedule 2 of the Immigration Act of 1971 (c.77) as well as (and) paragraph 2 of Schedule 3 to that same act.
So we need to get to the immigration act. It is already interesting that they did not refer to the Immigration and Asylum Act 1999, which was released two years before that.
There it basically states that a person who may be required to submit to examination under paragraph 2 may be detained under the authority of an immigration officer pending a decision to give or refuse him leave to enter.
That paragraph reads literally:
(2) Where the Secretary of State may give directions for a person’s removal in accordance with sub-paragraph (1) above, he may instead give directions for his removal in accordance with arrangements to be made by the Secretary of State to any country or territory to which he could be removed under sub-paragraph (1).

Which then refers to proceedings, ejections and the Immigration Appeals act 1969.
I reckon the Clash had it down to a legal fine art when they wrote the lyrics ‘Should I stay or should I go!’
The more I read, the more I feel that the Anti-terrorism, Crime and Security Act 2001 was created a little too rash, but I am steering off course.
We get back to three parts.
1. HOW did he get here?
2. WHY was Abu Qatada arrested?
3. Why is this all taking so long?
Going back to 2002, he was held without being charged. This statement seems truthful as an immigration officer can do this; however, the things that follow are an issue. Why did this take until 2005? The Telegraph reported that he was freed in March 2005 on conditional bail. So can anyone explain to me how that takes 3 years? The Clash was spot on! Should he stay, or should he go! Was he a real threat?
1. He got here on a forged passport in 1993 and was given Asylum 9 months later.
The CPS (the UK version of the DPP) had the following information on their website:
Obtaining Leave by Deception – section 24A (1) Immigration Act 1971.
This offence came into force on 14 February 2000.
A person who is not a British Citizen commits this offence if by means which include deception by him:
a) he obtains or seeks to obtain leave to enter or remain in the United Kingdom; or
b) he secures or seeks to secure the avoidance, postponement or revocation of enforcement action against him.
In proving deception, direct evidence from the immigration official who was deceived should ordinarily be obtained. Further information regarding this element can be found in the legal guidance dealing with the dishonesty offences under Section 15 of the Theft Act 1968. See guidance on Theft.
In drafting a charge or indictment under this section, it will be necessary to elect whether the allegation is made under section 24A (1) (a) or (b) of the 1971 Act.
There may also be an offence under section 26 (1)(c) of the 1971 Act of making a false statement, return or representation to an immigration official in the commission of any offence under Section 24 of the 1971 Act. The Section 26 offences are explained below. The statutory defence under section 31 Immigration and Asylum Act 1999 applies to this offence.
This offence is an either-way offence and the maximum penalty on indictment is either a fine not exceeding the statutory maximum or imprisonment for a term not exceeding 2 years, or both.
The leading authority for sentencing is R v Nasir Ali [2002] 2 Cr. App. R. This case indicates that even where a guilty plea is entered, a sentence of 9 to 12 months imprisonment should be imposed. In terms of venue, these offences should ordinarily be dealt with in the Crown Court unless there is exceptional mitigation.
Important to know that His forged immigration feat in 1993, does not imply expulsion from the UK (no mention of that other than that he might face up to 2 years of Jail time. It seems he has done a lot more than that. Is this all about posturing?
I think it is a valid question. Yes, the man had ties, Yes, he had outspoken thoughts (thoughts I do NOT condone), but beyond that, has he actually committed a crime that warrants 10 years in Jail?
I am not speaking out for him, or condoning terrorism in ANY way. I am asking, what crimes did he commit? This is linked to part two of the three questions, and part three remains the same. Why is this taking so long? I cannot understand this part. Instead of closing it all down, Qatada is receiving thousands of pounds in Financial aid on many levels. It seems to me that on a political level many posturing acts are made and too many citizens are paying that bill.
In regards to the BBC quote by the PM Mr Cameron: “I am completely fed up with the fact this man is still at large in our country, he has no right to be there, we believe he’s a threat to our country“. As well as the claims as voiced on Sky News UK on March 9th “Theresa May has applied for permission to appeal against a decision to block the deportation of Jordanian terror suspect Abu Qatada
My questions become, what on earth are they doing?
There are two reasons.
First is that MOST of these messes come with the trade of forged and illegal VISA papers! WHY is the immigration act not amended to include voiding residency if residency was obtained in any illegal way? There could be an exception if it can be proven that the person is seeking asylum from persecution. In addition, there would still a period of time between Residency and Citizenship to make additional checks. All this time wasted, all that money wasted!
The second reason is that the PM states that he has no right to be here. How so? Let us not forget that his entry was approved 6 years before the Americans had their 9/11. It seems that this case taken immensely out of proportions.
Now the other side! Was it taken out of proportions?
There is a government’s duty to react in defence and protection of its citizens. Let us be fair. MI-5 is not there to have fun and just sit around. They have goal and purpose. There seems to be a massive amount of ambiguity going on as well, especially in this case. Several European Judges claimed that Qatada is more than just a money man for Al-Qaeda. Either there is proof, and he is extradited or there is not. There is no legal twilight (as the Independent stated) in my mind. If there is evidence, then MI-5 must give it and stop playing around with security considerations (if they are at all involved at present), If there is no evidence, then cut him loose.

There are three branches wasting massive amount of tax payers costs. All founded in Ego (or so it seems). Why?
If we move towards IHL we can see that the first rule in this is ‘Persons outside of combat and those not taking part in hostilities shall be protected and treated humanely‘.
That rule seems to be simple enough.
So if we can agree on the premise that Spies and terrorists are only protected by the laws of war if the power which holds them is in a state of armed conflict or war and until they are found to be an unlawful combatant, then the solution seems so simple (I am infamously known to oversimplify issues).
Al-Qaeda is a terrorist organisation. It acted against the US and UK, so there is no issue. If there is evidence that Qatada was part of Al-Qaeda, then he is guilty and can be processed. As he was arrested again in more than one issue and involving transgressing the strict bail rules, then the question becomes. Is Qatada presently in violation of the Terrorism Act 2006? If so, process him, if not, let him go. Let us not forget that he can only be held up to 15 years according to Section 13 of that act.
This should follow a huge paragraph on the rules and regulations of extradition, but I will spare myself THAT agony for now. (Reading 4 acts on one day is quite enough).
Personally, from the news and information I wonder if we are not going too far on a binge to ‘assist’ the US in their witch-hunt for their terrorists. I am not arguing AGAINST their hunt for Al-Qaeda, but a lot of this evidence is way too thin, as mentioned by the Appeals Judge Sir John Mitting.
It’s not that there is a magical road to wander. It is process, rules of evidence and such (pesky law rules, according to some).
I wonder how Sir Jonathan Evans sees this all? If there is an abundance of political posturing, then at some point (sooner rather than later), the house of Lords might ask him, and likely will definitely ask the PM and the Home Secretary a few questions on this specific matter as this case spirals further out of control (by kind cooperation of the UK Media).
Getting back to the title
Common Law has grown on Humanitarian grounds and the rights of the individual.
The Common law system is based on previous court decisions. They are considered “law” with the same force of law as statutes. This has been going on for a few centuries. Common law courts have had the authority to make law where no legislative statute exists, and statutes mean what courts interpret them to mean. In this environment the UK, as well as Australia and especially Canada grew a justice system that respected the rights of the individuals and especially as all are innocent until proven guilty. The UK has not been without its issues like the IRA and the Ulster Brigade. It is only because of those events during the 70’s and 80’s that MI-5 grew to the strength that it was able to keep the UK relatively safe against attacks by Al-Qaeda. What most did not realise that 9/11 showed that the issue with terrorists is not just finding them, but prosecuting them, because of a ‘failed’ law system became a lot harder. I use the word ‘failed’ as Common Law had never dealt with situations like that, and neither had the US. The question becomes on how to deal with terrorists in Law. Common Law is to treat all alike. This is where the shoe no longer fits. A few require a different prosecution. This is not common Law; however these few have the desire to end the lives of many. Can the Law be allowed to continue to endanger the lives of many hundreds of its citizens as one is protected against draconian law needs?
Whether Abu Qatada is guilty or innocent, the issues that showed up during his extradition do leave us with a clear path of evidence. Several acts need to be revamped.
The valid question why this was never correctly done will remain on many minds for a long time to come.



Filed under Law

2 responses to “Humanitarian Law v National security

  1. Pingback: How to see ‘facts’ | Lawrence van Rijn - Law Lord to be

  2. Pingback: Run Michael Run! | Lawrence van Rijn - Law Lord to be

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