Lawfare is not making us safer

Melanie Phillips:

It turns out that the U.S., whose Supreme Court last month ruled that non-American prisoners held at Guantanamo Bay may challenge their detention, isn't the only country where judges are hampering the war on terror. Many people here are rubbing their eyes at the fact that Britain is letting out of jail some of al Qaeda's most dangerous members. In June, a British court released the notorious Islamist preacher Abu Qatada, who had spent the previous three years in jail pending deportation to Jordan to stand trial on terrorism charges.

Now there are media reports that the U.K. government is considering releasing an even more dangerous terrorist this week, rather than deporting him to his native Algeria. The man known only as "U" (to protect his identity) was a close contact of Abu Qatada and allegedly was involved in planning terror operations in Los Angeles and Strasbourg, France.

Neither Abu Qatada nor "U" has been prosecuted in Britain, because U.K. authorities possess no evidence to charge these men with plotting terrorist acts. Abu Qatada could have faced charges for lesser offenses under Britain's terrorism law. But since these would have imposed only short prison sentences, the government considered it preferable to deport him to stand trial for more serious crimes in his home country.

Yet in both cases, the English courts have ruled that deporting these men would breach their human rights. Given that they were only being held pending deportation, their subsequent release became inevitable. These cases are but the latest examples of the way in which the English judiciary appears to be bending over backward to thwart the fight against terrorism.

"U" is considered so dangerous that his lawyers and the security service are still arguing over the unprecedented restrictions proposed for his bail, including permanent house arrest. Abu Qatada is free on the conditions that he remains at home for 22 hours every day, doesn't use a cell phone, and doesn't visit a mosque.

He now lives in a house in a London suburb, to the undoubted discomfiture of his neighbors. Dozens of police officers are required to ensure that he doesn't violate his bail conditions, at an estimated annual cost of £500,000 ($996,274). Then there are his wife and five children who have to be supported on welfare benefits, as they have been during the years of his incarceration, at a further cost of some £45,000 per year – not to mention an extra £8,000 annually in disability benefits for Abu Qatada on account of his "bad back."

Britain's welfare "rights" culture only accentuates the surrealism of this situation. How is it that people as dangerous as these two men are to be maintained at vast expense by the British taxpayer rather than being deported? Puzzlement surely turns into astonishment when one learns the grounds on which the Appeal Court decided not to throw Abu Qatada out of the country.

The judges were worried that, at his pending trial in Jordan, the court there might use evidence from another witness that had been obtained by torturing him. This concern persisted despite the Jordanians' assurances that they would not do so, since this was against their own law.

Prohibiting torture is one thing. But extending such concerns to a witness in a case in which Britain was not even involved, thus preventing it from throwing out someone who endangered its own interests, is beyond perverse.

No sooner had Abu Qatada been released than yet another set of English judges in a terrorist case arrived at an even more bizarre conclusion. Led by England's top judge, the Lord Chief Justice Lord Phillips, the Appeal Court quashed the conviction of the "lyrical terrorist" Samina Malik.

Ms. Malik had been found guilty of collecting "information of a kind likely to be useful to a person committing or preparing an act of terrorism" after a jury heard that she possessed jihadi literature including "The Terrorists' Handbook" and "The Mujahideen Poisons Handbook," as well as operators' manuals for such firearms as an antitank weapon. She is known as the "lyrical terrorist" because she also wrote jihadi poetry.

The judges reversed her conviction, though, because they decided that information "useful" to a terrorist had to offer practical assistance. While the terrorist manuals in her possession plainly did just that, the judges decided that other jihadi literature did not, and so it was not unlawful to possess such literature. They then concluded that the jury may have been "confused" and wrongly convicted her for possessing the jihadi literature – as opposed to convicting her for possessing the terrorism manuals that did constitute an offense.

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Legal preemption has had a similar lack of success in the US. The lawfare approach just does not work well in the criminal courts. In the civil courts it can have an effect when cases are brought against the enablers such as the financiers. In those cases where you can compel evidence and testimony the accused loses his advantage of silence.

What is needed is a system where overt acts in support or in furtherance of terrorism on behalf of an enemy making war against us is enough to declare that person an enemy combatant and allow him or her to be detained until the end of the war. It needs to be taken out of the judicial process where judges are too unconcerned about the dangers posed by those wanting to engage in mass murder of non combatants. Clearly the ruling in the UK and the recent court decisions in the US involving the Gitmo detainees demonstrate how ill suited judges are for this role.

Terrorist rights should be limited to be treating humanely while in confinement. What is clear is that the lawfare approach favored by Obama is making us less safe.