British court bars holding foreigners uncharged

Measures a greater threat than terrorism, judge says

December 17, 2004|By NEW YORK TIMES NEWS SERVICE

LONDON - Britain's highest court ruled yesterday that the British government cannot indefinitely detain foreigners suspected of terrorism without charging or trying them. It called the process a violation of European human rights laws.

A specially convened panel of judges in the Law Lords ruled 8-1 in favor of nine foreign, Muslim men who have been in detention, most of them in Belmarsh Prison in London, for as long as three years.

The prison has been called "Britain's Guantanamo" by human rights groups.

In its powerfully worded decision, the court said the government's "draconian" measures unjustly discriminate against foreigners because they do not apply to British citizens and are a lopsided response to the threat of a militant attack.

The judges deemed it a clear violation of the European Convention on Human Rights, a decision that complicates the British government's strategy on combating terrorism.

The ruling by the Law Lords, a panel of senior judges who sit in the House of Lords and act as the country's highest court, parallels a June decision by the U.S. Supreme Court that said "a state of war is not a blank check for the president."

Important case

Using the sharpest language of the nine judges, Lord Leonard Hoffman said the case was one of the most important decided by the court in recent years:

"It calls into question the very existence of an ancient liberty of which this country has until now been very proud: freedom from arbitrary arrest and detention."

He said the government's actions posed a greater threat to the nation than terrorism. "The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these," Hoffman wrote.

"That is the true measure of what terrorism may achieve. It is for Parliament to decide whether to give the terrorists such a victory."

The groundbreaking decision removes one of the government's crucial anti-terrorism tools and muddles its ability to deal with suspected foreign terrorists. It also forces Prime Minister Tony Blair, his Cabinet and the Parliament to either modify the law or release the men and do away with the law altogether.

The law must be renewed next year and is scheduled to expire in 2006. Until the government makes that decision, the detainees will remain in prison.

The ruling comes at a particularly inopportune time for Blair, who accepted the resignation of David Blunkett, his longtime ally and home secretary, Wednesday. Blunkett was a chief architect of the anti-terrorism strategy and had been a forceful proponent of using tough tactics against suspects.

His replacement, Charles Clarke, faced a difficult challenge on his first day of work.

"It is ultimately for Parliament to decide whether and how we should amend the law," Clarke said yesterday, adding that, for now, he would not release the detainees who "I have reason to believe are a significant threat to our security."

Demands release

Gareth Peirce, one of the lawyers representing the detainees, said the government must now move quickly to release the men. "There is no escape route for the government, no escape route whatsoever," she said.

Arguing that special circumstances required special laws, the government put forward the Anti-Terrorism, Crime and Security Act in 2001 immediately after the Sept. 11, 2001, attacks. To enact the measure, the British government had to opt out of parts of the European Convention on Human Rights.

The law allows the Home Office to indefinitely detain, without charges, those foreigners it suspects of militant-related activities who cannot be deported home for legal reasons. The detainees are free to leave Britain voluntarily at any time.

The detainees are not told why they are in prison and have no access to the evidence the government holds against them, primarily because the government believes it to be too sensitive to reveal.

They also cannot hire lawyers. Instead, the government appoints lawyers with security clearance for them and permits the lawyers to see the evidence and argue on the detainees' behalf. The lawyers, though, are barred from discussing any of the information with their clients.

Seventeen men are believed to have been detained in Britain under the law and nine are still in detention. One of them is Abu Qatada, a Syrian cleric considered by Britain to be the spiritual leader of Mohammed Atta, the chief hijacker in the Sept. 11 attacks.

"The measures unjustifiably discriminate against foreign nationals on the grounds of their nationality or immigration status and are not strictly required since they provide for the detention of some but not all of those who present the same risk," said Lord Thomas Bingham in the court's majority opinion.

Human rights groups said the law made a mockery of democracy. It infuriated the Muslim community, since it appeared to be aimed only at Muslims.

"What defines a democratic country is the rule of law, and a cornerstone of the rule of law is a right to trial by jury and the right to defend yourself with legal representation," said Barry Hugill, a spokesman for Liberty, a group that worked for the men's release. "This is exactly what was denied these men.

"Putting people in indefinite detention is what they did in Eastern Europe and in Saddam's Iraq. I am told that is what we are fighting against."

Hugill said human rights groups do not dispute the government's right to charge the detainees and put them on trial.

"That is fine by us," he said. "But if they don't have the evidence, they should be released."

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