In Europe’s terror fight, the rights issue
By Katrin Bennhold, International Herald Tribune, April 14, 2006
LONDON As his wristwatch edges toward 3:26 p.m., the young Algerian moves his wooden chair closer to the back door. At 3:30 sharp, his leg needs to be inside his North London house.
The 32-year-old, whose name cannot be divulged by court order, wears an electronic tag around his left ankle and is allowed to leave his home just four hours a day.
He was arrested in London four years ago on suspicion of links to the Armed Islamic Group, an Algerian terrorist organization, and spent more than three years in high security prisons before being put under partial house arrest in October. Now the British government wants to send him back to Algeria.
But in the last four years, he says, he was not interrogated once, an assertion backed by his lawyer. No formal charge has been brought, and neither he nor his lawyer has been informed of any evidence against him – evidence which the British government says must remain confidential for security reasons.
« Since the day they arrested me, I have never been asked any questions or told what the case is, » said the man, who wears a traditional Muslim beard and speaks lightly accented English. « How can you defend yourself in a situation like that? »
Four and a half years after the Sept. 11 attacks, the spread of Islamic terrorism has nurtured talk of a culture clash between the Muslim world and the West. But there is also a cultural battle playing out within Western democracies as the legal tools for dealing with terror suspects multiply: the battle between security and basic freedoms.
Causing some outrage in Europe, the United States has pushed the boundaries with the Patriot Act that expanded governmental powers after 9/11. The American image as a beacon of liberty has been hurt further by the abuses at Abu Ghraib and the treatment of detainees at Guantánamo.
But many European governments have extended their own surveillance and prosecution powers. On Thursday, the latest counterterrorism legislation came into force in Britain. Now a number of officials, lawyers, and human rights experts say that Europe, too, is experiencing a slow erosion of civil liberties as governments increasingly put the prevention of possible terrorist actions ahead of concerns to protect the rights of people suspected, but not convicted, of a crime.
Although changes are not as marked as in the United States, there has been slippage in Europe on commitments under international treaties like the European Convention on Human Rights and the UN Convention Against Torture, the experts say.
« We are fiddling with rights that only a few years ago seemed untouchable, » said Álvaro Gil-Robles, human rights commissioner at the Council of Europe, the Continent’s chief rights watchdog.
The two most contentious areas concern treatment of terror suspects, he said. Several European countries are extending the period during which suspects may be held without charge or restricted in their freedom. And some nations appear to be moving toward accepting cooperation with governments known to torture prisoners.
Investigators say that international terrorism mandates new approaches, and that criminal law is ill equipped to handle the threat.
« We always think about the rights of the terrorists, » said August Hanning, Germany’s deputy interior minister and a former intelligence chief. « But if there is an attack that you could have prevented, you also have to be able to look into the eyes of the relatives. »
Italy and the Netherlands, for example, have relaxed the conditions under which intelligence services can eavesdrop. French legislation recently gave investigators broader access to telephone and Internet data. German legislation being drawn up seeks to allow intelligence services easier access to bank and car registration data.
The new British legislation outlaws the « glorification » of terrorism, an offense that critics warn is so vague that it could be applied arbitrarily.
But the debate about detention rules and the ban on torture has caused the biggest controversy.
« Something pretty fundamental is going on, » said Gareth Peirce, a lawyer at Birnberg and Peirce in London who represents the Algerian under surveillance in north London and nine other Middle Eastern and North African men arrested within months of Sept. 11 without a formal charge. « A number of countries have been trying to avoid their treaty obligations in relation to arbitrary detention and torture, » she said.
One broad trend has been the extension of police custody and restriction of legal representation.
In December, France increased its period of detention without charge for terror suspects to six days from four; during the first three days, the uncharged suspects may be denied access to a lawyer. Italy last year extended custody to 24 hours from 12 and authorized the police to interrogate detainees in the absence of their lawyers. In 2003 Spain extended the period in which suspected terrorists can be held effectively incommunicado to a maximum 13 days, according to Human Rights Watch.
Britain has gone farthest. The latest law doubles the period during which a terror suspect can be held in custody without charge to 28 days. It was just 48 hours in 2001, and Prime Minister Tony Blair fought for an extension to three months.
The new law followed one filed soon after 9/11 that allowed foreign terror suspects to be held indefinitely without charge. The House of Lords declared the measure unlawful in late 2004, after Peirce appealed on behalf of 10 clients who were being held at Belmarsh prison in London.
The practical result was that the government had to find a new way to treat the 10 inmates. First it introduced a form of partial house arrest known as a « control order » that severely restricted the freedom and movement of the suspects. Since last summer Britain has also been seeking ways to legally deport eight of the men including the Algerian to countries that are known to practice torture.
As he awaits deportation, the Algerian can leave his house only between 11:30 a.m. and 3:30 p.m., and cannot venture more than a mile away.
In the Netherlands, a bill likely to pass in coming weeks would introduce something like the British control orders for terror suspects whom the authorities have been « unable to convict. » For a maximum of two years, suspects can see their freedom of movement restricted, be obliged to report to police regularly and prohibited from contacting certain individuals.
In some countries, the tools used against Islamic terrorist suspects pre- date Sept. 11 but their use has increased. In France, where a combination of Basque, Corsican and Islamic terrorism prompted the government to lay the groundwork for its anti-terrorist legal arsenal as early as 1986, suspects can be held for four years before facing trial on vague charges. As of November 2005, some 80 suspects were being held under this provision, more than in any other European country, according to Alain Marsaud, who was France’s chief counterterrorism coordinator in the 1980s and is now a lawmaker.
« We’re not going to wait until the bomb goes off, » said Marsaud, who wrote a recent parliamentary report on counterterrorism efforts. « That’s why we give more power to the judicial system: to arrest people before they act. »
The number of Muslim men arrested for « association with wrongdoers involved in a terrorist enterprise » has soared since Sept. 11: According to the French Interior Ministry, it increased from 58 people in 2002, to 77 in 2003, 101 in 2004 and 170 last year.
Lawyers say the British, Dutch and French practices are milder forms of the detention of « enemy combatants » in the United States. « There is a clear parallel with what is going on in the United States, » said Jacques Debray, a Lyon- based lawyer specializing in immigration and penal law, who has represented several terror suspects. « They detain people on administrative grounds, while we create a legal framework first. But the logic is the same: preventive detention. »
Aside from the debate over whether European governments have aided the CIA in sending terror suspects to countries where they may be tortured, deportation cases like the Belmarsh ones have sparked a broader discussion about the prohibition of torture.
The UN Convention Against Torture and the European Convention on Human Rights, ratified by all European Union member countries and the United States, both ban torture and other cruel or degrading treatment. They forbid the deportation of people to countries where they risk torture and the admission in court of evidence possibly obtained under torture.
But several European countries have sought diplomatic assurances from countries with dubious human rights records pledging that deportees will not be ill-treated.
Sweden allowed two Egyptian terror suspects to be repatriated on a CIA plane in Dec. 2001 after Cairo gave such assurances. The UN Committee Against Torture subsequently said that Sweden had violated its obligations under the UN Convention.
Germany, the Netherlands and Austria have also sought to return suspects using such pledges from Turkey and Egypt.
In Britain, the government has received diplomatic assurances from Libya, Jordan, and Lebanon, and is working on similar accords with Egypt and Algeria. Human rights activists say that such assurances are not reliable.
« Why should a country that fails to respect major international conventions against torture respect a mere bilateral agreement? » asked Kenneth Roth, executive director of Human Rights Watch in New York. « It’s a legal fig leaf. »
The British government is also trying make deportations possible without such assurances. An Algerian terror suspect, Mohammed Ramzy, has appealed to the European Court of Human Rights to prevent his deportation by the Netherlands to his native Algeria on the grounds that he might face torture, and London is asking the court to rule that the risk of torture faced by the suspect has to be weighed against the security risk faced by the host country.
A spokeswoman for the British Home Office called the European Convention on Human Rights a « cornerstone » of the EU, but added: « There is a valid question about how rights and freedoms are balanced and interpreted in a phase of the current heightened security threat that Europe faces. »
As in the United States, a tug-of-war between governments and their judicial branches is also playing out in Europe. The House of Lords in Britain scrapped the provision legalizing indefinite detention, and rejected the three months of custody that the Blair government sought. The European Court of Human Rights will rule on the deportation case of Ramzy v. Netherlands.
According to Antoine Bernard, executive director of the International Federation of Human Rights League in Paris, that tension is a sign that the right balance between security and freedom has not yet been found. « The search for the right balance between anti-terrorist concerns and human rights concerns is in full swing, » he said.
