We have to deport terrorist suspects – whatever their fate
Sunday November 5, 2006
On the morning of 1 October, 2002, Wolfgang Daschner, deputy chief of police in Frankfurt-am-Main, gazed at Magnus Gaefgen, a law student and the prime suspect for the kidnapping of the 11-year-old son of a Rhineland banker. The policeman was certain he knew where the boy was, but Gaefgen refused to talk and had every reason to maintain his right to silence.
Suppose that Jakob von Metzler was slowly starving in a cellar. It was in Gaefgen’s interests to let him die and dispose of his body when he was sure the police were not watching him. Alive, the boy would be a prosecution witness. Dead, he would be the source of forensic evidence. If Gaefgen stayed quiet, he might get away with murder and the police knew it.
Daschner considered his options and wrote a memo. Gaefgen should be tortured, he said. ‘After being warned, he should be questioned again, under medical supervision, with the infliction of pain [no injuries].’ The kidnappers of children aren’t brave men and the mere threat of a beating caused Gaefgen to confess that he had murdered Jakob and hidden his body in plastic bags under a jetty.
Because Germany has experienced the horrors of both fascism and communism, torture is a taboo, banned not only by laws, but by the constitution. The Daschner affair broke it. This wasn’t torture in the style of the SS or KGB, but the closest anyone could remember to a Hollywood plot. A boy is missing and the clock is ticking; who’s to say it’s wrong to pin a suspect to the wall and pummel him until he talks? The authorities tried and convicted Daschner, but the judge gave him a token punishment. An alarmed Amnesty International noticed that it wasn’t just guys in beer halls who thought that Daschner had done the right thing. Respectable politicians of the right and left said that the case proved that there could be exceptions to the total ban on torture.
I think we are going to hear the same thing here, even though for very different reasons, torture is as much a taboo for the English as the Germans. Unlike the rest of Europe, the Common Law has never accepted forced confessions. When medieval Europe discovered that Roman law allowed the torture of suspects, everyone from the Scots to the Spanish embraced the rack. Only the English held firm. The exception was the monarch’s prerogative court of Star Chamber. But its tortures were so loathed, they were a cause of the English Civil War and to this day – 365 years after its abolition in 1641 – many people would know what you meant if you denounced an abuse of power as ‘Star Chamber justice’.
This is why Lord Bingham, the senior law lord, said last year that he was ‘startled, even a little dismayed’ that ministers thought they could use evidence in British courts which may have been obtained by torture in the Middle East. Despite his open incredulity, torture will be all over the news in the coming weeks and, as in the Daschner affair, I suspect it is going to be hard to say automatically that what the authorities want to do is wrong.
For the first time in British history, there are asylum seekers who could attack the country which gave them sanctuary. I don’t think people realise how unparalleled this change is. We like to say that Britain has always welcomed dangerous foreigners and cite the case of Karl Marx. But Marx never threatened Britain. He confined his political activities to working patiently with English trade unionists. When European ambassadors demanded that Britain put an end to Marx’s ‘menaces to life and property’, Lord Granville, the Home Secretary of the day, consulted Queen Victoria and dismissed them with the magnificent disdain of a high Victorian Liberal. ‘Extreme socialist opinions are not believed to have gained any hold upon the working men of this country,’ he said and sent the ambassadors packing.
His Lordship was right. The moderation of British trade unionists drove Marx wild, but he never tried to persuade them to think again and start a revolution.
Everyone now condemns past governments for allowing London to become ‘Londonistan’, a centre for Islamist exiles, but they were doing no more than working on Lord Granville’s assumption that refugees didn’t attack their new homes. No one believes that now and John Reid is certain to propose in the Queen’s Speech sending them back to their own countries if their governments promise not to torture them.
Indeed, the courts are due to rule on the plea of Abu Qatada, known as ‘al-Qaeda’s spiritual ambassador in Europe’, that he shouldn’t be returned to Jordan. The case against allowing deportation is set out in a typically incisive report from Human Rights Watch, released last week. How, it asks, can assurances from Egypt, Libya, Jordan, Algeria and the rest be trusted?
To which the reply is, what would you do instead? A foreigner who MI5 says is a threat to national security has no right to refugee status. Yet he can’t be locked up because the law lords have ruled that internment is illegal. Evidence from his native country that he is a member of a banned organisation can’t be used against him because it may have been obtained by torture, and he can’t be deported because he may be tortured back home. The result is an absurd situation where a harmless Egyptian who comes to Britain to work as an illegal minicab driver can be expelled, but an alleged member of the Egyptian Islamic Jihad cannot.
Something has to give and Lord Carlile, the independent reviewer of terrorism legislation, dropped broad hints to me that it would be the automatic ban on deporting suspects. Carlile is a Lib Dem peer and QC. He is anything but a New Labour stooge. Yet he doesn’t think the courts will object if Reid can get strong promises that suspects won’t be tortured on return. Nor does he believe the European Convention on Human Rights will stand in the government’s way.
France is covered by it, but expels alleged jihadis to Algeria. The French, being French, don’t have taboos. They just do what’s in their national interest.