The Renewal of Control Orders before the UK Parliament

At the end of February the UK Parliament’s Joint Committee on Human Rights reconsidered the use of Control Orders under the Prevention of Terrorism Act 2005, which the Home Secretary (Alan Johnson, pictured left) has asked Parliament to renew for another year from 11 March (the fifth such renewal). Control Orders impose “tailored” restrictions upon individuals on whom they are imposed, which typically involve relocation of the individual, restricted contact with friends and family and a denial of access to the internet and other unmonitored forms of communication.

The Home Secretary informed Parliament in formulaic language based upon the wording of the PTA 2005, that, ‘the powers are needed to ensure that a control order can continue to be made against any individual where the Secretary of State has reasonable grounds for suspecting that individual is or has been involved in terrorism-related activity’. The chief argument marshalled in favour of the orders was that, ‘it is necessary to impose obligations on that individual for purposes connected with protecting members of the public from a risk of terrorism’.

EHRC letter – Body scanners in UK airports

The Equality and Human Rights Commission in the UK has warned the UK Government that the use of body scanners at UK airports may not be lawful. The Commission, in a letter to the Secretary of State for Transport, Lord Adonis, outlined its concerns that the use of the scanners may be discriminatory, and may contravene the right to privacy. Moreover, the absence of a strict policy on how passengers are selected for scanning and the lack of a monitoring system is cause for concern.

A further problematic aspect of the scanners which was not addressed in the letter is the vetting process for those persons observing the images. In addition, stringent safeguards are necessary as to the destruction of the images after screening. Given that the Minister for Justice, Dermot Ahern, has expressed his support for such a counter-terrorism tactic, it is crucial that these issues are addressed before any equivalent policies are introduced in Irish airports.

Khadr in the Canadian Supreme Court

Readers who are following the progress of Guantánamo-related cases through domestic courts around the country will be no doubt familiar with the case of Omar Khadr (left). Arrested and detained in Guantánamo Bay while he was a minor, Khadr is a Canadian citizen who had secured a lower court ruling directing the Canadian government to make representations for his release. The Government challenged that decision in the Supreme Court, largely on the basis that the exercise of diplomatic functions is an Executive function from which the courts ought to exclude themselves or, at least, in which they ought to minimise their role quite significantly.

In the Canadian Supreme Court’s decision in Prime Minister of Canada v Omar Khadr [2010] CSS 3 there is a clear recognition of the participatory role of the Canadian government in the unlawful detention with statements provided by Canadian officials being one of the bases for his continued detention. However, while Khadr was entitled to a remedy the Supreme Court did not grant the remedy sought, i.e. an order that Canada request his repatriation. The Court did not accept that the government was immune from constitutional scrutiny when it comes to deciding on perogative powers. Rather, the court asserted its jurisdiction to decide (1) whether a claimed perogative power exists, (2) if so whether the Charter of Rights or constitutional norms have been breached in the exercise of that power, and (3) to make specific orders. However, the Court could not make an order directing the government to request repatriation as to do so is to infringe too greatly on the executive power relating to foreign affairs. The Court held that the appropriate remedy in such a case is to declare a breach of rights and then leave it to the government to decide how to react to that breach.

The judgment seems to be a mixture of judicial muscularity (the claim that the conduct of foreign affairs is not an area within which the government can act without scrutiny) and deference (the claim that the government can not be directed to act in a certain way without the foreign affairs arena). While this might, at first, seem to indicate a contradictory viewpoint on the part of the Supreme Court, in my view it is in fact a good example of the kind of ‘nudging’ judgment we have seen in both the US and the UK superior courts in the ‘War on Terrorism’ (I have written about this here in the MLR and, forthcoming, also in the OJLS with an early, unproofed version here). What will happen if the Government does nothing or is not forced into doing something by parliament and ‘the people’? That is perhaps the lingering question from Khadr. The hope is that it will not fall to the Court to decide it and, instead, the government will take steps to try to have Khadr repatriated.

Proscription Powers and the Banning of Islam4UK

Last week the United Kingdom’s Home Secretary, Alan Johnson, announced that he was taking steps to ban the group Islam4UK in the wake of the conviction of several of its members for public order offences relating to their protests at a parade of soldiers from the Royal Anglian Regiment returning from service in Iraq in 2009.

Islam4UK, fronted by Anjem Choudary (left), is the offspring of Omar Bakri Mohammed’s al-Muhajiroun, which infamously referred to the 9/11 hijackers as “the magnificent nineteen”. The group denounces “Western Values”, supports the implementation of Sharia law, and has argued that British Muslims owe no allegiance to the United Kingdom. Although in this latest incarnation the group claims not to publically promote violence in the support of these causes, members have been convicted in relation to terrorism and public order offences. It has been adept at attracting media coverage, particularly amongst the British tabloid press, to its extremist views.

Lithuanian Enquiry into CIA Secret Prisons

A parliamentary enquiry in Lithuania has concluded that the CIA ran two secret prisons in that jurisdiction to which various suspected terrorists were ‘extraordinarily rendered’ in the aftermath of the 11 September 2001 attacks. According to the Irish Times news report the enquiry has found that the detention centres were opened and operated in conjunction with the Lithuanian intelligence agencies and that there was no domestic political approval of them. This adds Lithuania to Poland and Romania as European jurisdictions in which such prisons operated.

This is worrying in a number of respects. First of all there is, of course, the concern that a European jurisdiction allowed for the operation of these ‘ghost prisons’. These prisons were clearly intended to circumvent US and international law. Furthermore, they were designed and operated in a manner that attempted to ensure that the domestic law of the relevant state could not be availed of by detainees in any attempt to secure their liberty. The idea of designing a detention centre that would operate outside of the law is almost certainly to ensure that intelligence officers can use whatever mechanisms they deem appropriate or necessary in order to acquire ‘intelligence’ about the detainees’ alleged activities without the spectre of legal accountability for such actions. It seems unlikely that thoughts at that time were directed towards acquiring evidence that could be used in a court of law—there would, after all, be clear questions of admissibility if sustainable claims could be made that information was acquired in an unconstitutional manner. Rather, the information to be gathered was clearly ‘intelligence’—i.e. designed to be used in counter-terrorism design and operations as opposed to in any prosecutorial process.

Independent Monitoring Commission Report: Devolution of Policing will undermine Dissident Republican Terrorism

The members of the Independent Monitoring Commission (IMC) may have thought that they were caught in limbo. Obliged under the Northern Ireland (Monitoring Commission etc.) Act 2003 following an International Agreement between the British and Irish Governments, the Commission has in recent years been able to declare that many of the groups once central to the “troubles” are now committed to exclusively peaceful means. A successive series of their Reports dealt with ever decreasing levels of political violence. The Commission’s mandate, to “monitor any continuing activity by paramilitary groups” (Article 4) and to “recommend any remedial action considered necessary” (Article 7) in response to this activity, appeared close to obsolescence.

If the Commissoners had once come round to this way of thinking, this week’s Twenty-Second Report adopted a markedly different tenor. The IMC asserts (at [2.7]) that the main dissident republican groups (the Real IRA and the Continuity IRA) have expanded their membership base (although largely through recruiting ‘inexperienced young males’). Moreover, the IMC evaluates how the attack against the Massereene Army Base in Antrim on 7 March 2009 (killing Sappers Mark Quincy and Patrick Azimkar) and the murder of PC Stephen Carroll in Craigavon on 9 March presaged a summer of increasingly ambitious attacks, often only thwarted by effective policing on both sides of the border (see [2.6]).

In other respects the Report was more hopeful. Having asserted that the Provisional IRA is committed to an exclusively peaceful path in its Nineteenth Report (at [2.7]), the IMC emphasised that (at [4.4]), particularly after the attacks in March, senior figures in Sinn Féin and the Provisional IRA, ‘have continued to give leadership to the republican community to refrain from violent and other crime, to adhere to the exclusively political path, and to reject the dissident republicans who want to destroy the peace process, pointing out the futility of their actions and the lack of a political strategy on their part’. Moreover, the leadership of loyalist groups were singled out (see [4.5]) for their, ‘efforts to prevent a violent reaction on the part of members to the dissident republican murders’. This position was bolstered, on 4 September 2009, by the Independent International Commission on Decommissioning’s verification of the UVF and Red Hand Commando’s weapons. The IMC also cautiously welcomed (at [2.21]) the INLA’s renouncement of violence on 11 October 2009.

For the moment the dissident republican groups remain fragmented and fractious, unable, in the words of the IMC, to undertake ‘effective strategic collaboration’. Nevertheless, focusing police resources on the dissident republican threat to the peace process will not, in the long term, deflect attention from the power vacuum which is developing at the centre of the peace process as a result of stalled efforts to devolve policing and justice powers to the Northern Ireland Assembly (a point addressed in some of my earlier posts). As part of its wide mandate to recommend remedial action to counter terrorist threats, the IMC emphasised the paramount importance of devolving these powers (at [5.1]):

‘There are security and intelligence contributions to be made to addressing the developing problems. However, the early devolution of policing and justice powers to the Northern Ireland Assembly and Executive could provide a potent intervention. This would not be because the dissidents would be impressed by it. It would be because policing and justice would no longer be a point of contention across the political divide; rather, it would be a platform for co-operation against those trying to undermine the peace process.’

Polls continue to suggest that the vast majority of Northern Irish voters support parties which remain committed to democratic politics. The longer this enforced hiatus persists, however, the easier dissidents will find it to persuade some people, even if they are ‘inexperienced young males’, that the peace process is not serving their interests.

A Mixed Week on Accountability for Renditions

This week saw two contrasting results emerging from courts in the United States and Italy regarding extraordinary rendition. In the United States, the case of Maher Arar (right) was once more rejected by the US Court of Appeals for the Second Circuit. In Italy, however, 23 CIA agents were convicted in absentia in relation to their involvement in the ‘snatching’ of Egyptian Osama Moustafa Hassan Nasr from the streets of Milan in 2003. The contrast in the courts’ approaches in these cases could hardly be more pronounced.

In Arar (opinion available here), the Court refused to allow Canadian national Maher Arar to sue the United States for sending him to Syria where he was tortured because Congress had never expressly authorised such suits. Arar therefore failed to create what is known as a Bivens action, i.e. an action for breach of constitutional rights, in relation to extraordinary rendition. This was because, the Court held, the creation of a Bivens action in this respect would have implications of foreign policy and security activity. Congress could, of course, create such an action by statute but the Court would not do so itself. There is little doubt that this will be appealed.

In Italy, in contrast, Judge Oscar Magi of the Fourth Chamber of the Court of Milan appeared to have little hesitation in convicting the 23 Americans for their involvement in rendition although there were a number of others who were not convicted as a result of diplomatic immunity and the withholding of evidence on national security grounds. This case is sure to be appealed, and no sentences are executed in Italy until all appeals are completed, but in any case the agents are not in custody. The US State Department has expressed its disappointment at the verdict.

New light shed on the Gibraltar Shootings?

Published last week, Cambridge Historian Professor Christopher Andrew’s new book, The Defence of the Realm: The Authorized History of MI5, builds upon a volume of research upon the security services stretching back to his 1985 study, Secret Service: The Making of the British Intelligence Community, and beyond. What makes his latest work even more significant is its unique status as the only ever authorised history of the organisation.

Amid the mass of information covering 100 years of MI5’s history that is contained in the 851 pages which make up the body of this book, the media have picked up on Andrew’s extended analysis (including surveillance pictures, left) of the security service’s perspective upon the notorious killing by the SAS of three Provisional IRA members involved in preparations to plant a bomb near the Governor’s Residence in Gibraltar on 6th March 1988 (739-746).

After a confused response in the immediate aftermath of the shootings, the then Foreign Secretary Sir Geoffrey Howe provided the official version of events to Parliament the following afternoon:

‘About 3.30 pm, all three left the scene and started to walk back towards the border. On their way towards the border, they were challenged by the security forces. When challenged, they made movements which led the military personnel operating in support of the Gibraltar police to conclude that their own lives and the lives of others were under threat. In the light of this response, they were shot. Those killed were subsequently found not to have been carrying arms. The parked Renault car was subsequently dealt with by a military bomb disposal team. It has now been established that it did not contain an explosive device.’ (HC Deb 07 March 1988 vol. 129 col. 21)

Former Guantánamo Bay Detainees Granted Leave to Remain

The Irish Times reports today that two Uzbek nationals who had been detained in Guantánamo Bay for seven years but who were found not to be a threat to national or international security have now arrived in Ireland. The former detainees could not be returned to their own countries of origin as there was a real risk that they would be subjected to persecution there. The former detainees have been granted leave to remain by the Minister for Justice, Dermot Ahern (right).

As a legal status, leave to remain is normally granted where someone has been unsuccessful in an asylum application but there are humanitarian reasons for not returning the person to their country of origin. This is provided for under s. 17 of the Refugee Act 1996. However, leave to remain can be granted in broader circumstances than this as it is a discretionary status. Recently a large number of people have been granted leave to remain on the basis of their being the parents of Irish born children, for example.