Coalition Against Secret Evidence

“I’m Afraid I Can’t Tell You That…”

By Aisha Maniar

A three-week appeal hearing started at the Special Immigration Appeals Commission (SIAC) on Monday 8 March in a case involving five men seeking to clear themselves of the “terrorist” label and Home Office attempts to remove them from the UK on the grounds that they “pose a threat to national security”. On the first day of the actual hearing, Tuesday 9, counsel for the alleged “ringleader” of an unsubstantiated terrorist plot cross-examined a security service agent, known only as witness ZR.

In April 2009, twelve men, one Briton and eleven Pakistani nationals, were arrested in anti-terror raids under “Operation Pathway” in the northwest of England. Accused of planning a “very big plot”, no material evidence was found to back up the claims and the men were later released without charges under the Terrorism Act 2000.  Shortly after, however, ten of them, all foreign nationals, were rearrested pending deportation on national security grounds.  Held as Category A (high-risk) prisoners, the men decided to appeal their deportation and clear themselves of being smeared with the “terrorist” tag.  Due to enormous pressure from various sides, several of the men decided to drop their appeals and returned to Pakistan.  By the time the appeal started this week, only two of the men remained in the country. Abid Naseer, 23, considered the “ringleader” of the plot, still held as a Category A prisoner without charge or trial, and Ahmed Khan, also 23, recently bailed under strict immigration bail conditions, both attended the hearing and will do so throughout the open parts of it.  Three other men have decided to bring out of country claims to appeal the security service’s assessment of them.

Following the arrests last April, no charges were ever brought and hence no trial was held at which the men, all students whose costly education in a foreign country was brought to an abrupt end, could openly state their own case. Appeals against deportations on national security grounds are heard at SIAC where proceedings are held both in open and closed (secret) sessions. It is important to note that, to date, no charges or convictions have been made in relation to these allegations and the basis for the allegations made has not been fully revealed to the men involved.

At an initial hearing in May 2009, lawyers for the government accused the men of having links to Al Qaeda. Although much of the alleged evidence against the men remains secret, some disclosure was made in August 2009 and then later in November 2009 and March 2010. The core government argument against these individuals remains the same, that Abid Naseer and his associates were planning an attack in the UK which was directed and orchestrated by Al Qaeda. Coded e-mails formed a substantial part of the planning process and the attack was to be carried out in April 2009. In disclosures made in November 2009, it was stated that although the men were not ready to carry out an attack when arrested, there was still the possibility that they could have, with the most probable dates being between 15 and 20 April. E-mail correspondence between Mr. Naseer and a man known as Shoaib, who was possibly in Pakistan, constitute a large part of the evidence that has been disclosed.  ZR stated that the e-mail evidence is “designed to look like correspondence about girls between two people but that is not what it means. They are coded messages for an attack planned by Al Qaeda”.

Counsel for Mr. Naseer argued that the e-mails, which contained discussion about girls, cars and marriage, were the only basis for the assessment.  ZR claimed that they were an important part of the overall understanding of Mr. Naseer’s activity. Initially in their correspondence, the two men had not used their own names but had used girls’ names instead. In his statement, Mr. Naseer stated that there were cultural reasons for this and for him to be able to gain access to particular websites.  Once they were familiar with each other and had identified each other, they started using their own names openly. The security services’ assessment, however, is that girls’ names were used to disguise the nature of the e-mails, which was allegedly to communicate with Al Qaeda abroad and to report on progress and plan terrorist attacks. Other use of the e-mail addresses for social purposes and the fact that real women were referred to was simply a cover. The names of women referred to in the discussion between the two men have also been assessed to be codes. Although there are various theories as to what the “code” may refer to, the prevalent one is that they refer to ingredients that could be used to make explosives.  No explosives or ingredients were found in the possession of any of the appellants or information of any plans to procure them.

In its public disclosure, the security services referred, without providing any basis for its assessment, to the similarities between this alleged plot and past planned and/or executed terrorist plots. Represented by leading barristers with extensive experience of defending terrorism plots over the past few years, Joel Bennathan QC for Abid Naseer and Baroness Helena Kennedy QC for Ahmed Khan, the counsel for the appellants sought to ascertain exactly what these “similarities” may be, particularly given that the reason for this assessment of the men and the greater part of the evidence against them remains secret. Going through the allegations made, such as of the “mindset evidence” of Mr. Naseer possessing a USB drive containing nashids (Islamic songs) in Arabic and Urdu, with the Arabic ones – a language he barely knows – supposedly jihadist in nature, it was asserted that actual possession of such materials is not an essential ingredient for involvement in terrorist activity and cannot alone be taken as evidence of radicalisation.  ZR refused to comment on these points. Mr. Bennathan pointed out that from the assessment made there were no apparent similarities to any other plots, to which ZR stated the linguistic fact that “similar” and “identical” do not mean the same thing.

Other points of similarity to other plots, particularly the 7/7 bombings and the airline bomb plot, such as the procurement of materials, training abroad and modes of communication with others involved were also points ZR felt “uncomfortable” commenting on as he did not know what information was and was not in the public domain. While ZR could confirm points mentioned in the evidence already provided and before the appellants in any case, he could not provide any reasons for how the conclusions in the security assessment that these men should be removed from the country on “national security” grounds were reached. Instead the security services’ witness was more of a broken record answering each question along the lines of “I’m not comfortable…” or “I cannot answer that in open. I can say more in closed session”. Having effectively answered no questions or having moved the argument on at all, Mr. Bennathan asked ZR if he actually knew what it meant for him to give evidence in an open court of law and if he knew the difference between closed and open evidence. It was also suggested that perhaps he should go and read up on the topics and return once he knew what he could and could not say, however it was decided that process could take a long time. When held in closed session, only individuals who have been vetted  by the security services may attend, which excludes the appellants and their lawyers.  Instead, in these sessions, they are represented by “special advocates” who are not allowed to communicate with them or their lawyers once they receive the secret evidence and can only defend them based on the materials they have without being able to refer back to them. As shown through the largely pointless and tiresome proceedings on the first day, the use of secret evidence makes it almost impossible for the barristers to do their job of defending clients and for any progress to be effectively made. The effect is largely a charade of justice. On day 2, Baroness Helena Kennedy put her questions in cross-examination to ZR on behalf of her client, Mr. Khan.

The hearing is scheduled to last three weeks until 26 March. Please check the SIAC website www.siac.tribunals.gov.uk website if you are planning to attend. A handful of supporters and journalists turned up for the first day of the hearing. The two in-country appellants will be attending the hearing at all open sessions. Please do attend if you can to show them your support and to witness this theatre of justice in person. In week three of the case (w/c 22 March), the hearing will be held in private – the appellants and their counsel can attend – and the media and public are not invited to attend. The judgment made as a result will be open but the materials and rationale will remain private. The case has also sparked a good deal of interest in Pakistan. Various government ministers in the country have stated that these men have nothing to do with any terrorist organisations or activity there.

To coincide with the hearing the London branch of the Justice 4 the NW10 (J4NW10) campaign will be holding a public meeting about this case on Saturday 13 March at 2pm at Conway Hall (Artist’s Room), 25 Red Lion Square , Holborn, WC1R (nearest tube: Holborn).

·        What has been the experience of each of these students?

·        Where do we stand now – with the case and the campaign?

·        What are the wider implications?

Speakers include: Tariq Mehmood, Parents of the students (Speaking from Pakistan), Person under control order (Speaking by phone link).

For further details call: 07846873341