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Monday, June 02, 2008 

Fisking Brown on 42-day detention.

How would we be able to tell when it had been implemented?

The more things seem to change, the more they stay the same. If you're getting an overwhelming sense of deja-vu, imagining that we seem to have been here before, then you're not alone. For 42 days, read 90. For Tony Blair, read Gordon Brown. For Charles Clarke, read Jacqui Smith. The whole abortion of a debate over the urgent, pressing need for more time to hold the dastardly terrorist suspects, whether it be for another 42 minutes, 42 hours, 42 months or 42 years, or for 90 minutes passim ad nauseam has become so repetitive that you could get a robot to take up the slack and make the case for both sides.

If you don't therefore want to bored to tears, you might be inclined to skip this post. Just like when Tony Blair was in trouble he depended upon the Downing Street Echo and the Times to back him to hilt, so it seems to have come full circle with Gordo. With almost every newspaper apart from the Sun opposing any extension, and you tend to not be taken too seriously if you make your scholarly case for further detention powers in the same tabloid which has topless woman on its third page, Brown has instead taken to the sympathetic pages of the Thunderer in his restless case to convince the only two remaining people whom haven't already made their mind up about just how desperately needed those further 14 days are. The results are far from encouraging.

Next week, when Parliament votes on the proposal to detain terrorist suspects without charge for up to 42 days, hard choices have to be made.

Not really. There are two choices: to either reject yet another truly unnecessary, discriminatory, unhelpful, counter-productive and chilling reduction in civil liberties, or to support the government and a band of merry supporters which can be counted on one hand, which included the already mentioned Sun, "Sir" Ian Blair, Lord Carlile, who thinks that putting a figure on it is unhelpful but is supportive in principle, Melanie Phillips (a given) and David Aaronovitch. If I've missed someone, feel free to point them out.

Britain has lived with terrorist threats for decades. But I am under no illusion that today's threats are different in their scale and nature from anything we have faced before. Today in Britain there are at least 2,000 terrorist suspects, 200 networks or cells and 30 active plots. The aim of terrorists is to kill and maim the maximum number of victims, indiscriminately and without warning, including through suicide attacks.

We can agree on the point that the threat is different; whether it is in scale or nature is less obvious. It's too easy to forget that the IRA didn't always telephone through warnings, and unlike the jihadist takfirists, also used to specifically target politicians rather than civilians. They also had far more support and far more funding than our current "friends". Quoting the 2-year old murmurings of the former head of MI5 without any explanation as there wasn't then of whether these 2,000 "terrorist suspects" are all Islamists or otherwise, and without specifying if they're allied to al-Qaida type ideology or the more Muslim Brotherhood-influenced Hamas type simply isn't good enough. If there were 30 active plots, how come that more "plots" haven't either been disrupted or come to fruition since then? No one can dispute that the aim is to kill and maim as many as possible, but the last few attempts to do just that have failed miserably. Even one police officer called Nick Reilly's apparent recent attempt to construct a bomb in a restaurant as "amateur hour"; that could have been extended to last year's Glasgow airport attacks and even the "liquid bombs" plot. While we should be concerned and rightly, we should also be making clear that we're dealing for the most part with fantasists, not deadly trained and truly motivated fighters.

Look at the scale and complexity of today's terrorist plots and you will understand why the amount of time required before charges can be brought has increased. In 2001 police investigating the last big IRA case had to analyse just one computer and a few floppy disks. The suspects used their own names and never went beyond Ireland and the UK.

By 2004 the police investigating the al-Qaeda plotter Dhiren Barot had to seize 270 computers, 2,000 disks, and more than 8,000 other exhibits. There were seven co-conspirators, and the investigation stretched across three continents. In the 2006 alleged airline bomb plot, the complexity had grown again - 400 computers, 8,000 disks and more than 25,000 exhibits.

This is just yet another attempt to blind people with statistics and figures. We don't know what 270 computers means in reality: it could be handhelds, computers in internet cafes, etc, all of which are not going to take anywhere near the time to search as a personal encrypted computer which holds most if not all of the relevant information. The same goes for the number of disks mentioned: are they burned CDs and DVDs or are the police going through suspects' entire DVD and CD collections in search of even the slightest amount of possibly hidden evidence, which would explain the huge amounts of disks apparently gone through? The possibility that this is exactly what they are doing is raised because our old friend Dhiren Barot apparently had concealed some alleged "reconnaissance" material on a Die Hard video. Fast-forwarding through DVDs and videos doesn't take that long, which underlines just how subjective the raising of such apparently vast amounts of material which needs to be shifted through is.

In any case, these examples are not even necessarily relevant; both cases involve "plots" which were disrupted before they came to fruition and where the police are searching for anything that might support their case. The "nightmare scenario" which has been raised by ministers such as Tony McNulty which would justify 42 days is 3 or 4 attacks of 9/11 type intensity occurring at the same time. In such cases, where crimes have already been obviously committed, and when the perpetrators will be presumably dead, it already seems doubtful that 42 days would be necessary. The alleged facilitators of 7/7 have only recently been brought to trial, and it certainly didn't taken anything approaching 28 days to hold them prior to being charged.

The police find themselves investigating multiple identities and passports, numerous mobile phone and e-mail accounts, and contacts stretching across the world. Simply establishing the true identity of a suspect may itself take days. Often hundreds of hours of video footage have to be viewed, layers of computer encryptions deciphered and overseas authorities persuaded to co-operate.

Why is this being used as a justification, apparently the only remaining justification? If the reason why "suspects" need to be held for longer than 28 days is because of the resources the police have, then give them more resources, don't extend the time the "suspect" can be held. Similarly, bringing up the encryptions argument again is really getting tiresome: the police have the power to demand encryption keys, and if the suspect refuses, he can be charged on that alone. As Spy Blog points out, encryption can either be broken or it cannot. Having to "persuade" overseas authorities to co-operate is also a red herring; hardly any countries refuse to co-operate, it's just the time that it takes for them to do so, which again, is not a justification for extending the time limit.

And the police cannot just wait for suspects to be caught red-handed. They have to make a judgment about intervening early to avert tragedy; which means more time may be needed, between arrest and charges being laid, to unravel the conspiracy and assemble the evidence.

Which they've up till now managed perfectly well, perhaps too well, if worries about what the "liquid bombers" could have actually achieved are substantiated. Dhiren Barot and his cack-handed "dirty bomb", used so often to scaremonger, were similarly dealt with perfectly adequately. We're being asked to legislate for a hypothetical, something that may never happen but which may happen, asking us to support it on the basis of the "increasing complexity" which adds up to the police sifting through more data than perhaps they even need to. It's about as far from convincing as it's possible to get.

The challenge for every government is to respond to the changing demands of national security, while upholding something that is at the heart of the British constitutional settlement: the preservation of civil liberties. And if the national interest requires new measures to safeguard our security, it is, in my view, the British way to make those changes in a manner that maximises the protection of individuals against arbitrary treatment.

Now Brown's assaulting us with his favourite topic, Britishness. It's the British way to lock up suspects for a random number of days on the possibility they might be nasty; that's another way to say what Brown has just written.

So our first principle is that there should always be a maximum limit on pre-charge detention. It is fundamental to our civil liberties that no one should be held arbitrarily for an unspecified period. After detailed consultation with the police, and examination of recent trends in terrorist cases, we propose the upper limit of 42 days.

Really? Where where you then prime minister while Belmarsh was being used as the British equivalent of Guantanamo Bay, albeit only for "foreign terrorist suspects"? Were you making clear your opposition to this constitutional outrage, only ended when the House of Lords ruled that it was incompatible with an act which your self same government brought in? If you want us to know the specifics of exactly why the police think we need 42 days, why don't you publish these detailed consultations? In reality this "detailed consultation" seems to amount to asking either the head of the Met or the current head of anti-terrorist policing what amount of days they'd like: we've had 90, we've had 56, and now we've got 42. How do we know that in another 2 years' time the police aren't going to be asking for yet another 2 weeks longer than the current limit?

Our second principle is that detention beyond 28 days can be allowed only in truly exceptional circumstances. The decision is made by the Home Secretary but must be backed by the Director of Public Prosecutions as well as the police. And this would allow the higher limit only for a temporary period, and only where there is a specific terrorist incident or threat under investigation that warrants it.

Which is yet another "compromise" that isn't. It just so happens that this "safeguard" has been designed so that the current director of public prosecutions, who opposes any increase, has to embarrass himself by admitting that he got it wrong. How limiting the higher limit to a "temporary period" is also any kind of safeguard is bizarre: if the higher period is needed again, the police will just ask for it again, and parliament and judges are hardly likely to disagree with them, especially when the tabloid press will be howling if they do.

Our third principle is that the Home Secretary must then take this decision to Parliament for approval. If Parliament refused to sanction the decision, the existing 28-day limit would stand.

How likely exactly is it that parliament will disagree when it's already decided that 42 days might be appropriate? How and why should parliament be asked to decide whether it is necessary when they will neither legally nor politically be able to make such a decision without either prejudicing a potential case or without bringing the whole of the weight of the media down on their heads if someone then released goes on to commit any sort of offence? This isn't a safeguard or a compromise, it's an unholy mess that makes things worse, not better. Oh, and here's a good question: what happens exactly if parliament happens to be in recess when such an extension is needed?

Fourthly, the judiciary must oversee each individual case. As happens now for detention beyond 14 days, a senior judge will be required to approve the extension of detention in each individual case every seven days up to the new higher limit.

Again, how likely is it that any judge will dare to risk the chance of releasing such a suspect, especially when the police will be making clear in no uncertain terms how they must not be? It's not a safeguard now and it certainly won't be after 28 days.

Fifthly, to enhance accountability there must be independent reporting to Parliament and the public on all cases. That is why the independent reviewer will now report publicly not just in general on the operation of the legislation but on each individual case.

And since the "independent" reviewer already supports an extension, and thinks that control orders are necessary and proportionate, we can take a guess at what his reports will say. Yet again, how his reporting on each individual case will not prejudice a trial will be interesting to discover.

So I say to those with legitimate concerns about civil liberties: look at these practical safeguards against arbitrary treatment. With these protections in place, I believe Parliament should take the right decision for national security.

These safeguards are absolutely worthless. In fact, they're worse than worthless; they justify, condone and underpin that arbitrary treatment. There could not be a better specific example that the current anti-terror laws have already gone too far than that of Rizwaan Sabir: when you can be held for 6 days for downloading an al-Qaida manual from a US government website, the potential for arbitrary treatment, injustice and increased resentment against the authorities could not be greater. While those arrested at the same time were charged and convicted, two of those arrested during the investigation into the Birmingham beheading plot were held for a week without once being questioned about the allegations being made in the press, of which they only learned after their release. It doesn't matter if for every 1 that is released after an extended period in detention 10 are charged and subsequently convicted: it's that 1 and his story that enrage, that do the damage and which show why such an extension must be resisted.

I have received much advice in recent weeks. Some have argued that I should drop or significantly water down the 42-day limit. But having considered carefully all the evidence and arguments, I believe that, with all these protections against arbitrary treatment in place, allowing up to 42 days' pre-charge detention in these exceptional terrorist cases is the right way to protect national security.

Indeed he has received much advice, and typically of Gordon, he hasn't taken a single piece of it on-board. He's still convinced that this is the one remaining piece of legislation on which he can wrong foot the Tories, making them look weak, and by at least one of the quoted polls, around 57% of the public do support the government, although that's a figure way down on the support for Blair when 90 days was defeated, showing that the unpopularity of the government and the fall in fearmongering over the terrorist threat in general seems to have had an effect. The most laughable and contemptible opinion put across is that being "tough" has nothing to do with it: the loathsome McNulty appearing on Newsnight emphasising that, while in more or less the same sentence repeating Smith's argument from earlier tonight that this would be a decision showing the government "governing". If that isn't a shot across the bows of the Tories, ridiculing them for being playing with people's lives as they're in opposition rather than government, I don't know what is.

That is why I will stick to the principles I have set out and do the right thing: protecting the security of all and the liberties of each; and safeguarding the British people by a careful and proportionate strengthening of powers in response to the radically new terrorist threats we now face.

No Gordon, you're sticking the principle of being a politician rather than governing in the interests of the "British people". While terrorists threats will grow and wither respectively, our civil liberties will only ever be weakened. Once lost, they are near to impossible to win back. From a government that has only done one thing to civil liberties, and that's to slash them, despite the welcome introduction of the Human Rights Act, to claim to be protecting the security of all and the liberties of each is obscurantist in the extreme. It was to be hoped that Labour MPs would still vote 42 days down, something now looking less likely, not because MPs have been won over by the government's case, but because they don't want to make things even worse for the party and for Gordon. The cavalier attitude that shows towards civil liberties and the people's interests is politicians at their very worst. Those that do change their minds for just that reason more than deserve eviction from parliament itself, something the electorate seems inclined to do regardless.

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