Justice and the Islamist Terrorist: The Burlesque in Britain

Commitment to the principle of human rights is now in collision with the ability of Western democratic countries to deal with and protect themselves from Islamic terrorists.

On March 27, 2013, by decision of a senior judicial panel, the British government lost another attempt to deport the Islamist preacher Omar Othman, usually referred to as Abu Qatada, to Jordan, where he would be retried on criminal charges.  Understandingly, staunch advocates of human rights have applauded the decision of the judges.  Yet the sequence of events leading to this outcome is disappointing not only for British officials, who have wanted to remove him from the country.  It is even more disturbing that it prevents or delays what must be regarded as just and appropriate treatment for an individual whose preaching of radical hate and violent actions  make him a danger to national security and to civil society.

On November 12, 2012, the British special immigration appeals commission (Siac) in London decided that Qatada should not be deported because "there was a real risk he would be subject to a flagrant denial of justice" if retried in a state security court in Jordan for offences in 1998.  He had in April 1999 been convicted in abstentia of bombing offenses and sentenced to life imprisonment based on evidence obtained by torture of two co-defendants named Abu Hawsher and Al-Hamasher.  In those trials, Qatada was convicted of plots to bomb the American School and the Jerusalem hotel in Amman and to target American and Israeli tourists in Jordan.  He was also held to have provided finance and advice for plots that were never carried out.

The Siac judge, Mr. Justice Mitting, decided that it was likely that this evidence would be admitted in a retrial unless the Jordanians would prove otherwise.  This might be done by Jordan amending its criminal code, or by stating that the evidence was not obtained by torture, or that they would not introduce it.

In an earlier case in April 2008, the British Court of Appeal had ruled that deporting Qatada would breach his human rights.  This was overturned by the British High Court, five Law Lords, on February 18, 2009, who unanimously ruled that the British government could deport Qatada to Jordan to face terror charges.  Yet one day later, the European Court of Human Rights (ECHR) in Strasbourg awarded him 2,800 euros for detention without trial in the U.K.  Justice Mitting's decision was based on a ruling by ECHR in January 2012.  This held that Qatada would face a "flagrant denial of justice" in Jordan.  He could not be deported if "there remains a risk that evidence obtained by torture will be used against him."

The legal argument rests on two articles in the European Convention on Human Rights passed in 1970.  Article 3 states that "[n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment."  Article 6 says regarding individuals facing criminal charges, "everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."

Appeals from Siac can be brought only on a question of law relevant to the issue, in this case whether deportation of Qatada would lead to his torture in Jordan.  The case was appealed to a high court of three prestigious appeal court judges chaired by Lord Dyson, the master of the rolls, who unanimously dismissed the appeal.  A Spanish judge had once described Qatada as "Osama bin Laden's right hand man in Europe."  Though British authorities, both members of the present government and the Labour party opposition, recognize this as fair, the decision of the appeal court was based on a technical issue.  The appeal court could not rehear the evidence: it could only decide if Siac had got the law right, and in fact upheld Siac.

The appeals court remarked that "torture is universally abhorred as an evil."  It commented that states cannot expel persons if there is a real risk they will be faced with a trial in which evidence may have been obtained by torture.  Lord Dyson remarked that "the fact that Mr. Othman is considered to be a dangerous terrorist is not relevant to the issues that are raised on this appeal."

However much one supports the concept of the rule of law, it appears ludicrous that concern for human rights in general and the British Human Rights Act of 1998 in particular has now become the basis for protecting foreign terrorists from facing justice in the countries in which they have committed offenses.  How should democratic societies deal with "dangerous terrorists," especially those like Qatada who make use and are well-represented legally at a considerable cost of millions spent in the systems which they threaten?

Qatada, born in 1960 in Bethlehem, then under Jordanian rule, was admitted in Britain in 1993 on a forged passport of the United Arab Emirates, claimed asylum as one who had been tortured in Jordan, and was allowed to stay as a refugee.  Since then, he has spent some time in prison for violations of immigration rules and has suffered there from exposure to television, radio, newspapers, books, and computers; use of an exercise yard; and a small gym.

During his stay in central London, he has been a fiery Islamic preacher, issuing in 1995 a fatwa (religious edict) justifying the killing of converts from Islam and their families in Algeria, praising suicide bombings, advocating in 1999 the killing of Jews and praising attacks on Americans, and declaring that Islamic law should be imposed on Muslim lands.  He was suspected of having connections with a German terror cell.  In a raid on his house in London in 2001, police found £170,000 in cash, including money to go to the Islamic rebels in Chechnya.  He is known to have had some influence on Richard Reid, the would-be shoe bomber, and on Zacarias Moussaoui, the alleged mastermind of 9/11, as well as on several others among those involved in 9/11.  In spite of all this, Qatada, though arrested a number of times, has never been charged with an offense in the British courts.  Instead, he has obtained a considerable amount in benefits for himself and his family.

Surely, it is long overdue for all in democratic societies to concede that to grant benefits, legal and otherwise, to known terrorists guilty of crimes is to depart from the broad rule of wisdom learned from human experience.