The controversial system of using government-appointed lawyers to represent foreign terror suspects was close to collapse last year after barristers refused to take part in secret hearings, according to court documents seen by The Independent.
Last month, the House of Lords ruled that the indefinite detention of the men without trial was unlawful, prompting a senior barrister to resign as a government-appointed "special advocate".
Now it emerges that two other "special advocates" representing Abu Qatada, accused of being "al-Qa'ida's spiritual representative in Europe", told a court that they would not act for Mr Qatada during the secret hearings.
Mr Qatada had made it clear that he thought that the proceedings were unfair because he was not allowed to know the case against him.
Mr Justice Collins, hearing Mr Qatada's appeal over the Home Secretary's decision to have him detained under emergency anti-terror laws, was so alarmed by the barristers' withdrawal that he asked the Solicitor General, Harriet Harman, to intervene to try to change the lawyers' minds.
The papers show that Ms Harman refused to act on the judge's request, saying it was not her role to intervene in such cases. The special advocates, Angus McCullough and Martin Chamberlain, later refused to disclose to the judge exactly why they had chosen not to challenge the secret evidence against Mr Qatada. They said this was because it was not in his best interests.
Mr Justice Collins tried to persuade the barristers to fall in line by telling them that they were "wrong not to take part in the proceedings". He said: "The appeal was still being pursued and the appellant [Qatada] did not know what was relied on against him in the closed material. We were unable to understand how in the circumstances it could not be in his interests for the special advocates, at their discretion, to elicit or identify matters favourable to the appellant and to make submissions to us to seek to persuade us that evidence was in fact unreliable or did not justify the assessment made."
He added: "Our further attempts to persuade the special advocates to change their minds were unsuccessful and since we could not compel them to act in any particular way, we had to proceed without them." During the closed part of the proceedings the judges took the unusual step of asking the Home Office barrister to identify secret service intelligence "that might be exculpatory".
Last night Mr Chamberlain confirmed that he and Mr McCullough had refused to take part in the closed hearings but declined to reveal the full reasons for their decision. Mr Chamberlain also declined to say whether he was preparing to resign his position.
Yesterday The Independent revealed how some of the open evidence against the detainees had been withdrawn or discredited. Ian Macdonald QC, the barrister who resigned his position as a special advocate over the "odious" law that permitted the indefinite detention of foreign terror suspects, said the evidence adduced by the Home Secretary at the secret hearings "need not be accurate". He said: "Information need not be accurate to give rise to reasonable suspicion and that is part of the problem with the legislation."
Shami Chakrabarti, director of the human rights group Liberty, said: "This shows why the Government is so reluctant to put these men on trial - the so-called "intelligence" is seriously flawed. Charles Clarke should act now to end this blatant abuse of human rights."
How goat-rustling claims led to pair's jailing
A Dorset farmer's suspicions about a group of Muslim men looking at his goats became part of former Home Secretary David Blunkett's case for using emergency powers to detain two asylum-seekers.
The farmer's fears that the men intended to steal the animals for ritual sacrifice were relayed to M15, where officers concluded that they were holding a clandestine meeting to elect a terrorist leader.
This became part of the case against two Algerians, known only as G and H, who were imprisoned without trial under emergency anti-terrorism powers rushed through Parliament after 11 September.
But now court papers seen by The Independent show that this intelligence had been rubbished by the tribunal that reviews the grounds for detaining foreign terror suspects.
The Special Immigration Appeal Commission accepted that the police report may have only shown that the men were enjoying a male-bonding holiday.
The judges concluded: "It is most unfortunate that a combination of a poor police report and a failure to look properly into the available information led to a mistaken attempt to paint a picture of a gathering to elect an emir or leader of a group."
Since his arrest three years ago, G, disabled with polio since childhood, has suffered severe mental illness. After hearing medical evidence, the judges agreed to allow him to live at his home address.
H, 32, came to this country in in 1993. He has been arrested and released without charge on four occasions.Reuse content