While there has been a good deal of focus on individuals subject to control orders, their human rights and general living conditions, very little focus has been put on the issue of national security deportations and those subject to it. The new Conservative government has over the past few weeks oft repeated its determination to continue the previous government’s foreign policy of seeking to sign Memoranda of Understanding (MoU) – little more than diplomatic assurances – with regimes known to carry out torture, and then to  return “terrorism suspects” to their country of origin. It has been argued many a time that such assurances are not worth the paper they are written on and if safety from torture could be ensured, assurances would not need to be sought in the first place.

Thus, unusually, on 16 June, the first day of ahearing to decide fate of several individuals under threat of deportation under the mask of MoU the case, national security deportations with assurances and the process at SIAC were the main story for the whole first half hour on Newsnight on BBC2. With a panel including former Home Office minister Tony McNulty, the former head of SIAC and the imam of Leyton Mosque in east London, the discussion was preceded by a film about life under immigration bail conditions for VV, the Jordanian appellant in the above case, who real name is Hussain Alsamamara, and his family. The moving film featured Mr. Alsamamara and his young daughter as he talked about life under strict bail conditions and the effects it has had on him and his young family. Mr. Alsamamara is a Jordanian asylum seeker who escaped persecution and torture in his own country only to find himself stuck in a web of secret evidence and perpetual detention without trial or charge for over 5 years. He was later interviewed live on the telephone during the programme by presenter Gavin Esler. A short excerpt of the film can be seen at: http://news.bbc.co.uk/1/hi/programmes/newsnight/8743947.stm

Taking part in the film was a breach of Mr. Alsamamara’s bail conditions and as a result of appearing in a film broadcast publicly and speaking to the BBC, he was summoned to appear at SIAC on the morning of Friday 18 June for a bail hearing. It was feared that his bail may be revoked as a result, however after being reprimanded by the judge, none of the current terms of his bail were varied and he was allowed to return home to his family. In spite of the government’s insistence on keeping this form of house arrest and detention without trial in Britain today as secret as SIAC procedures, over a million people either tuned in to watch the programme or watched it on BBC iPlayer.

It is hoped that the film will later be made into a longer documentary by the makers, Fatrat Films. For more details on the upcoming documentary, please visit: http://www.noplacelikehomedocumentary.com/

The Newsnight story was also covered by The Guardian newspaper: http://www.guardian.co.uk/law/2010/jun/16/terror-suspect-control-order-appeal

On 16 June, a Supreme Court panel of seven judges ruled unanimously that a control order that required the controlee to live 150 miles away from his family in London was a breach of his human rights. The controlee, AP, was moved away from London to prevent him associating with particular members of the Muslim community there and was moved to a location in the Midlands where he was isolated and had to remain indoors for 16 hours each day. For various reasons, it was difficult for his family to visit him there. The judges in their ruling held that the family circumstances of a controlee have to be taken into consideration before an order is imposed and the Home Secretary was wrong to argue that the personal circumstances of a controlee need not be taken into consideration. A week later on 23 June, the Supreme Court handed down a second judgment in this case to maintain AP’s anonymity due to the risks that could arise from his identity being disclosed.

AP is a 32-year old Ethiopian national who came to the UK in 1992 with his family. They have always lived in London since. In 1999, they were granted indefinite leave to remain. After travelling to Ethiopia and Somalia in 2005, he was detained by the Ethiopian authorities at the end of 2006 and upon his return to the UK on 28 December 2006, he was refused entry and was detained pending deportation until July 2007 when he was released under immigration bail conditions. The deportation application was withdrawn in early 2008 when he was instead placed under a control order. The terms of the order were varied in April that year and he was obliged to move to the Midlands where he faced social isolation. He was allowed to appeal in August 2008, however on 2 July 2009, the Home Secretary revoked the control order and instead decided to seek his deportation on national security grounds. He is currently subject, at the same address in the Midlands, to Special Immigration Appeals Commission bail conditions. Thus, while this particular appeal was of no benefit for AP himself, “the points it raises are said to be of some general importance with regard to control orders” (paragraph 8), hence the Supreme Court allowed the appeal.

The judgment can be read at: http://www.bailii.org/uk/cases/UKSC/2010/24.html

More on this judgment: http://news.bbc.co.uk/1/hi/uk/10327696.stm

The government originally sought to introduce the use of secret inquests through the Counter-Terrorism Bill 2008 and then reintroduced it in the Coroners and Justice Bill 2009 but it was again rejected. Instead the inquiry is being set up under the Inquiries Act 2005, under which minister have considerable powers to decide on what can and cannot be made public. The inquiry is to be chaired by Sir Christopher Holland, a retired judge. It is likely that as the inquiry will involve “sensitive material” concerning police procedure and conduct, a good deal of the information will be withheld from Mr. Rodney’s family and the public.

For more on this news: http://www.guardian.co.uk/uk/2010/jun/10/inquiry-police-killing-azelle-rodney

A website has also been set up for the purpose of the inquiry: http://azellerodneyinquiry.independent.gov.uk/index.htm

On 18 May, judgment was handed down at the Special Immigration Appeals Commission (SIAC) in the national security deportation case of five of the ten Pakistani students arrested in “Operation Pathway” anti-terror raids last year. Two of the men, Abid Naseer and Ahmed Faraz Khan, are present in the country and attended the hearing in March 2010. Three others, Shoaib Khan, Abdul Wahab Khan and Tariq Ur Rehman brought out of country appeals to have their national security threat assessment removed so that they could return to this country and complete their studies. Contact was made during the hearing with these three men in Pakistan and their families by phone link for the purpose of providing testimonies and evidence. The remaing five men from the original ten who were arrested returned to Pakistan in the course of the past year and chose not to challenge the security risk assessment made against them. The three-week hearing was held partly in open session, in camera whereby the Abid Nasser and Ahmed Faraz and their counsel could attend the hearing but not the general public. The last week of the hearing was held in secret.

At a first bail hearing in this case in May 2009, counsel for the security services stated that Mr. Naseer was the ringleader of a potential bomb plot and an Al Qaeda operative, providing a basis to deny bail to Mr. Naseer and his fellow students. The other students were deemed to be associates of his and involved in the “plot”. Disclosures indicating the basis of this assessment, consisting largely of e-mails and some items found in Mr. Naseer’s possession, was made in August and November 2009 and formed the large part of the open evidence, along with further disclosures this year that was presented at the hearing in March 2010. A security services witness cross-examined by the appellants’ counsel failed to provide any elucidation on the open evidence during the hearing and repeatedly stated that he could only comment in closed session.

In remarks concerning last March’s hearing, Justice Mitting held the assessment made by the security service that the men pose a risk to national security and should be removed on this basis was valid. However, in the case of Naseer and Faraz Khan, they could not be removed from the country as further to Article 3 of the European Convention on Human Rights (prohibition on torture), they would face the risk of ill-treatment on return. The appeal of two of the other men, Abdul Wahab Khan and Tariq Ur Rehman, to be able to return to the UK, was rejected and Shoaib Khan won his appeal on the basis that it was held that he was “not a knowing party to the plans”. With respect to national security, before setting out the judgment, the court stated that “we have taken into account a substantial volume of closed material. Our decisions have been based substantially or, in some instances determinatively, upon that material” (paragraph 8).

Although Abid Naseer and Faraz Khan “won” their appeal against deportation, they are in no better a situation as the assessment on which that deportation was sought still stands and its basis remains unknown to them and their lawyers. As well as seeking to “win” their case against deportation, they were also seeking to be disassociated with the “terrorism” label applied to them. Abid Naseer and Ahmed Faraz Khan now join the dozen or so individuals caught in the twilight zone of the UK’s national security deportation regime, in some cases for almost a decade now: individuals who cannot be deported to their country of origin due to the risk of torture or ill-treatment on return but simultaneously cannot know the basis on which the security risk assessment leading to the deportation order was made.

No charges and no prosecutions of any kind have been brought in Operation Pathway. Like others caught in this twilight zone, there is no viable means of challenging the assessment through the courts as the basis on which it is made is unknown and due to the highly sensitive “national security”-linked nature of the evidence, a prosecution cannot be brought either. As solicitor Gareth Peirce, whose firm Birnberg Peirce represents Naseer and Khan stated at a meeting organised by the Justice for the North West Ten (J4NW10) campaign group last year, it “takes stamina [for SIAC appellants] to fight the State. They’ve taken on the State”.

A statement issued by solicitors for Abid Naseer and Ahmed Faraz Khan following the judgment states:

“The decision of SIAC today in respect of the two students we represent is in fact, for them, the worst of all worlds. On the basis of secret evidence which it refuses to disclose to the students, the court tells the world in its judgment that they are closely connected to an Al Qaeda plot to cause explosions in the UK. The court acknowledges they have not been told why it comes to this conclusion, yet these young men have been branded publicly and thereby exposed to personal danger for the rest of their lives. SIAC moreover refused them permission to appeal against its decision on the basis that they had ‘won’. At the same time SIAC has decided that neither can be deported to Pakistan without the probability that he will be tortured. The risk of such a fate has of course been heightened but in all likelihood created by the Secretary of State’s claim and SIAC decision.” (Source: http://www.independent.co.uk/news/uk/crime/alqaida-operative-wins-fight-against-deportation-1975872.html)

The J4NW10 campaign group has produced a newsletter on the students case.

Letters and messages of support can be sent to Abid Naseer and Ahmed Faraz Khan c/o Birnberg Peirce & Partners, 14 Inverness Street London NW1 7HJ

“Open” judgment in the case can be read at: http://www.siac.tribunals.gov.uk/outcomes2007onwards.htm

” ….. misrepresenting the arrangements in place (e.g. claiming that independent bodies will monitor the individual, without having consulted with those bodies); lack of effective means for the sending government to protect a person once a transfer occurs; the absence of good faith willingness and/or ability to ensure respect for the rights of a returnee on the part of the receiving state—already acknowledged asa country where torture, ill-treatment, and other human rights violations are practised, often with impunity; the absence of incentive on the part of both governments to acknowledge a breach of the assurances and to investigate such breaches; and the vague scope of the promises, including how long they are supposed to apply to a specific person.”

Dangerous Deals

The report called for a review of all counter-terrorism laws passed since September 2001.

Commenting on the expanding use of secret evidence the report comments “It can now be used in a wide range of cases including deportation hearings, control order proceedings, parole board cases, asset-freezing applications, employment tribunals, and even claims for damages. We note that in Binyam Mohamed’s and others’ claim for compensation the High Court has held that special advocates and secret evidence may be used for the first time in a civil action for damages” (55).

The report calls for a review of the use of secret evidence and special advocates and the Special Immigration and Appeals Commission:

“The Government’s response to the A and AF judgments suggest that it considers itself free to press on with the use of secret evidence and special advocates in the other contexts in which they are used, without pausing to take stock of the wider implications of these significant rulings. Although the Government says that it is considering whether changes to the Parole Board’s procedures are needed, we have not seen any evidence to suggest that the Government has in fact considered the implications of the judgment of the European Court of Human Rights in A v UK for all the other contexts in which special advocates and secret evidence are used. We recommend that the Government urgently conduct a comprehensive review of the use of secret evidence and special advocates, in all contexts in which they are used, in light of the judgments of the European Court of Human Rights and the House of Lords, to ascertain how often they are used and whether their use is compatible with the minimum requirements of the right to a fair hearing as interpreted in those judgments, and to report to Parliament on the outcome of that review”(62).

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.

Sarbjit Johal from the J4NW10 campaign has also put together extensive notes from the opening day of the hearing. Please e-mail sarbjitj@hotmail.com if you would like a copy.

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

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The JCHR report is highly critical of the control order regime, concludes that “the current control order regime is no longer sustainable” and calls for it to be scrapped altogether. The cost of control orders and their impact on the individuals, families and communities affected were singled out as particular concerns. The report criticised the government for failing to give MPs sufficient information about control orders to be able to scrutinise them effectively. Also criticised is the use of special advocates and their ability to communicate or represent a controlled person once an advocate has received closed material.

There are currently 12 control orders in place, with 9 applying to British nationals. In support of renewal, the Minister for Policing, Crime and Counter-Terrorism, Mr. Hanson cited potential national security and safety concerns and threats.

Members of the Coalition Against Secret Evidence marked the day of the debate with a morning protest outside the House of Commons and also added their support to an open letter to all MP’s.

The full House of Commons debate can be read on Hansard at: http://www.publications.parliament.uk/pa/cm200910/cmhansrd/cm100301/debtext/100301-0013.htm#10030158000001 (from column 271 onwards).

To view a breakdown of voting among MP’s visit http://www.publications.parliament.uk/pa/cm200910/cmhansrd/cm100301/debtext/100301-0018.htm

On 1 February 2010 a draft order for the renewal of control order powers under the Prevention of Terrorism Act 2005 was laid before parliament. Also presented to parliament was a review of the control order regime that was ordered last September by the Home Secretary and undertaken by government’s independent reviewer of terrorism legislation, Lord Carlile. That review concluded control orders were necessary for the safety of the country and “that abandoning the control orders system entirely would have a damaging effect on national security”. However, Lord Carlile is reported as having said the control order regime should only be used on a small number of cases where the information is robust, the risk serious and when a conventional criminal prosecution is not possible.
http://www.guardian.co.uk/uk/2010/feb/01/carlile-backs-control-orders-terror

On 3 February, the parliamentary Joint Committee on Human Rights (JCHR) held a public evidence session on “Counter-Terrorism Policy and Human Rights: Control Orders” at which oral evidence was given by solicitors Gareth Peirce and Sean McLoughlin and special advocates Helen Mountfield, Angus McCollough and Thomas de la Mare. The session was held to inform committee members before the forthcoming parliamentary debateon renewing the control order provisons.

Commenting on the use of secret evidence in these cases, Mr. McLoughlin stated, “The evidence we get justifying the control order is limited, and for us to take instructions from a client to address the assertions is very difficult, and for that client to be able to respond in any meaningful way. In essence his evidence is given in a vacuum because he does not know quite a lot of the case that is being alleged against him. Equally the client will be suspicious of how any information he gives may be used, and clearly if you are trying to challenge an allegation against you the allegation needs to be made to you”. The discussion covered the effects of control orders on the individuals affected and their family, the development of control orders over the past five years and other pertinent points. An uncorrected transcript of the evidence can be read at: http://www.publications.parliament.uk/pa/jt200910/jtselect/jtrights/uc356-i/uc35602.htm

Liberty has a started a campaign against the renewal of the control order legislation. The campaign includes a public petition and asks that you lobby your MP on this issue.