Politicians alone must not decide who is a terrorist

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This newspaper is not in the habit of congratulating Conservative Party leaders for their robustness and skill in defending civil liberties. Yet today we commend Michael Howard and the shadow Home Secretary, David Davis, for joining the Liberal Democrats in their opposition to the Government's odious proposed anti-terrorism laws. As Mr Davis said on BBC radio yesterday, we should understand the scale of change these plans represent. Charles Clarke, the Home Secretary, is planning to take away the presumption of innocence for every British citizen, he said, for the first time outside times of full-scale war. He is right, although the essential dictum, innocent until proven guilty, had already been abandoned in the Anti-Terrorism Act 2001, requiring Britain to repudiate part of the European Convention on Human Rights. But that law, brought in while Ground Zero in New York was still smouldering, applied only to foreign nationals. As the Law Lords ruled in December, however, the Act made no sense. If the th

This newspaper is not in the habit of congratulating Conservative Party leaders for their robustness and skill in defending civil liberties. Yet today we commend Michael Howard and the shadow Home Secretary, David Davis, for joining the Liberal Democrats in their opposition to the Government's odious proposed anti-terrorism laws. As Mr Davis said on BBC radio yesterday, we should understand the scale of change these plans represent. Charles Clarke, the Home Secretary, is planning to take away the presumption of innocence for every British citizen, he said, for the first time outside times of full-scale war. He is right, although the essential dictum, innocent until proven guilty, had already been abandoned in the Anti-Terrorism Act 2001, requiring Britain to repudiate part of the European Convention on Human Rights. But that law, brought in while Ground Zero in New York was still smouldering, applied only to foreign nationals. As the Law Lords ruled in December, however, the Act made no sense. If the threat of a new kind of terrorism was so terrible, why should those suspected of planning it be detained indefinitely yet be allowed to leave the country at any time? And why should only foreigners be capable of undertaking it?

The Home Secretary's response was to extend the power of indefinite detention to British citizens, and to try to soften it by inventing a form of house arrest called control orders. But to be confined to one's home is still detention. The proposed law is more consistent than what went before, but only by taking the most obnoxious feature of the 2001 Act and extending it to everyone. Mr Howard and Mr Davis, contrary to expectations, now insist on preserving the essential principles not just of British but of universal justice. If the authorities have evidence that anyone is engaged in terrorism, it should be tested by an independent judicial process.

The Independent on Sunday, the Liberal Democrats and now the Conservative Party are prepared to accept some exceptions to normal rules. In some terrorism cases, for example, evidence gained from covert surveillance might be permitted. The Government's refusal to allow the use of wiretap evidence is bizarre. If the security services fear that this might expose their methods, judges could rule on the way such evidence is used in court.

The Prime Minister's defence of the proposed powers on television last Wednesday was chilling. Essentially, his case was that if the security services tell him or other ministers that they think someone is "up to something", indefinite detention is justified. That cannot be right. The evidence must be tested, and if it is not strong enough to persuade an independent judiciary, then surveillance is the only permissible option. The threat posed by terrorists is serious and real but, as the Home Secretary acknowledged earlier this month, it has not changed in the past year. The Government must think again.

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