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Comms, internet ban orders surface in new UK terror law

Added extras of Clarke's Belmarsh backlash

Variants of David Blunkett's 'ASBOs for terror' are set to be unveiled today by his successor as Home Secretary, Charles Clarke, under the banner of "control orders". Musing out loud to Jonathan Dimbleby last year Blunkett envisaged a kind of order that would have a wider application to people suspected of being fellow travellers of terror, perhaps engaged (allegedly...) in "acts preparatory to terrorism", including giving financial support, "doing runners, mule jobs", and "perhaps being able to use computer networks" in a way which could pose a threat. Clarke, on the other hand, is now categorising very similar sounding measures as extremely narrow, applying only to a very small group of people.

Clarke's immediate problem is finding something to do with the Belmarsh detainees, whose incarceration was ruled unlawful three months ago. With the emergency legislation under which they're held due to expire on 14 March, he either needs to let them walk or produce some more laws that will allow him to keep them locked up, in some shape or form. Hence the appearance of this offcut from Blunkett's toy chest. In unsuccessful attempts to placate the opposition, Clarke has said that the home detention without trial provision (which is one of the things exercising the opposition most) will be applied only to a very restricted number of people, but in addition the proposed Prevention of Terrorism Bill is expected to include bans on communication, use of the Internet and provision for tagging. These, pitched as the less drastic aspects of the legislation, will logically have rather wider application. We have yet to hear Clarke say anything to the contrary, and we suspect Blunkett's 'proof lite' internet bans are about to arrive.

Blunkett most certainly thought of them as having widespread use, dealing with a number of irritants: people who are suspected of being involved in moving money for terrorists, but against whom there is no concrete proof; people who might, or might not, be supporting terror via internet communications; or even ranting fundamentalist clerics the Home Secretary thinks ought to be locked up, but can't quite put his finger on why. The ASBO (Anti-Social Behaviour Order) provided a tempting model here because it allows individuals to be barred from engaging in specific activities without them having to be convicted in a court of having engaged in them, and then if they do engage in them they've committed an offence, so they can then be convicted and banged up.

Clarke's innovation (we don't recall Blunkett mentioning this bit) is to arrange for himself to be the one to decide who gets the control order. This decision will then be subject to a review by a judge within seven days, although from what he has said prior to the publication of the Bill it may be the case that only the detention orders will be subject to the review.

Announcing, to wide parliamentary outrage, the Bill's breakneck schedule yesterday (published today, clear of the Commons next Monday, finished in the Lords by 9 March), Leader of the House Peter Hain twice referred to suicide bombers, apparently as the key differentiation between the threat we allegedly face now and the threat that was once posed by the IRA. The more we hear from the fearless hero of the Springboks tour on matters of security, the more of a wuss he looks to us, frankly. But alongside the Bill Clarke is today due to produce documents "which indicate very clearly the nature of the terrorist threat which we have to address". He came up with this quip just as his Today programme interview ran out of time, so we won't know what he meant, or if it's the whole Government that's spooked by suicide bombers, until he actually produces it.

Rewind, though, to the 'problem' Clarke has, and then compare and contrast with the measures proposed to deal with it. The current detainees are foreign citizens who cannot be returned to their home countries because if they were they would likely face torture or execution. The Home Office clearly does not have evidence against them that it could produce in court, but has sufficient, secret, evidence to have convinced it they pose a threat, so the current, illegal, legislation was devised to detain them. The names of most of them have not been published, but several of them appear to have been involved in earlier campaigns against North African (notably Algeria) and Middle Eastern governments. Those involved (on both sides) in these tended not be to angels, but the Home Office's view of them as a threat must hinge on a belief that they have moved on to terror activities against the UK and others, and that they have the means to prosecute such activities.

The numbers covered vary slightly, but at the moment there appear to be ten or thereabouts individuals subject to the current legislation. The home detention provision would apply to these, as would limits on visitors, use of communications devices and so on. They would, effectively, be imprisoned without trial in their own homes. If one, for the moment, accepts that it is necessary to do this to these ten, then there is clearly no need for a graduated scale of control orders that can be applied to other (by definition, wider) cases. Granted, there may be an argument as to the need for such provisions, but if there is, there is still no immediate need for them to be brought in with minimal debate prior to 14 March. It isonly the Belmarsh category that needs to be addressed by then. Whatever is done can no longer apply solely to foreign nationals, as the current legislation was ruled to "unjustifiably discriminate against foreign nationals". But there's probably a shortage of UK nationals the Home Office is unable to send home because they may face torture or execution (so far...).

But to what extent do we need to address the problem of the ten, in what way? We at The Register are puzzled by the professed inability of the might of the British security forces to keep an adequate eye on ten people it reckons are potentially highly dubious and dangerous characters without their being locked down somewhere with all of their communications severed. If they're really incorrigibly dangerous, then mightn't you learn something useful by watching them, tailing them, bugging them, doing the same thing to everybody they communicate with? We could understand if it were a 10,000 strong secret army of fanatical suicide bombers all aimed at Peter Hain, but ten? Come on...

The surveillance activities of the security forces, incidentally, have some relevance to the opposition to the Bill. Politicians (including Tory leader Michael Howard) have argued that if surveillance evidence were admissible in court, then it might be possible to prosecute the detainees. Civil liberties groups also now tend to favour the use of surveillance evidence, on the fairly reasonable grounds that if it's out in the open it becomes possible to challenge it. Clarke, however, has insisted that in the cases of the detainees the available surveillance evidence would not be sufficient to convict them, and has declined to change the law on its admissibility.

The security forces oppose use of surveillance evidence in court because it might compromise their operations and sources, but we have a more plausible suggestion. Evidence produced in court is rightly subject to strict rules, and the people who have to produce it, the police, know what these are and take pains to conform to them (no, they really do). The spooks, on the other hand, don't have to produce it in court so don't have to keep it clean, tidy or sufficiently plausible to persuade a judge. So, we suspect, they don't - but their evidence would probably be a lot better and more valuable if they had to. A case in point is G, an Algerian detainee who was released into a kind of beta of the control order regime last year, on grounds of mental illness. He was strongly suspected of having breached the order by meeting unauthorised individuals, but a tribunal this year tossed out surveillance evidence to this effect as inconclusive. So there you go - the spooks can't watch one mentally disturbed case when he's confined to his own home with no communications without screwing up. Maybe they really can't handle ten. ®

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