A legal case in Britain involving a radical cleric has raised new questions about whether authorities can hold a suspected terrorist forever. An immigration judge ruled Monday that a longtime terrorism suspect and detainee in the U.K. should be released on bail.
The man at the center of the case, Abu Qatada, 51, has not been charged with any crime, but officials in the U.K. say he is a "truly dangerous" supporter of radical Islam and his release would put Britain's national security in peril. Qatada, whose real name is Omar Othman, is a Jordanian national long credited as being Osama bin Laden's right hand man in Europe. He has been in and out of detention since 2002, but he has never been charged with any terrorism crimes in Britain.
"He was really one of the key theologians within al-Qaeda," said Peter Neumann, a professor of security studies at Kings College London. "He was one of the key people providing religious justification for committing acts of terrorism in the West. If you wanted any sanction for whatever you were planning in terms of terrorism attacks in the West, you would go to Abu Qatada."
That's why, as much as any other preacher, Qatada is seen as having radicalized a whole generation of young Muslims. Unlike Anwar al-Awlaki, the American-born radical imam who was killed by a drone attack in Yemen last year, Qatada had a formal religious education. His sermons were not just fiery rhetoric, or simplified hadiths. His call for young Muslims to take up arms came from his deep reading and interpretation of the Koran.
"It was hard to argue with him for that reason," Neumann said.
Abu Qatada held sway. Before 2001, a letter of recommendation from him was enough to get a young would-be jihadi into an al-Qaida training camp. He was accused of raising funds for terrorist groups and encouraging young men to martyr themselves for the cause but, the accusations never became formal charges. His videotapes were found in the apartments of the Sept. 11 hijackers and of some of the Madrid bombers. Bin Laden called him his "ambassador to Europe."
It was that resume and history that drove British authorities to cobble together ways to keep Abu Qatada behind bars over the past 10 years. Right after the Sept. 11 attacks, British authorities held Qatada in prison under provisions that allowed them to round up people suspected of having links to al-Qaida. When that authority was challenged, Qatada was subjected to something called "control orders" – essentially a draconian form of house arrest. When that was challenged too, British authorities decided to extradite him back to Jordan where he would face trial on several terrorism charges. They decided to hold him in detention until the modalities of his deportation were worked out. He fought extradition for six years.
"From step to step, the British authorities have come up with a new legal tool, a new legal Band-Aid that is helping them to get over a few years," said Neumann. "It has allowed them to keep people in prison until a court strikes them down or whatever authority they were using fell apart. I don't think that is necessarily a sustainable situation."
Neumann was right. The big change came when the European Court of Human Rights recently decided that Britain couldn't deport Qatada back to Jordan because he wouldn't get a fair trial there. The evidence that authorities there had against him was obtained, they said, through torture. With the extradition off the table, Britain's Special Immigration Appeals Commission on Monday ordered Qatada be released from jail.
"He will be under a 22-hour curfew," said Home Secretary Theresa May before the House of Commons on Tuesday. He won't be able to use the telephone or the Internet; his travel will be limited and his visitors thoroughly vetted.
"He will be subjected to a specific condition preventing attendance at mosques and leading group prayer," she said. "If any of these conditions are breached and he will be rearrested and we will seek his immediate redetention."
The Qatada case shows how much Britain is grappling with the issues that have bedeviled U.S. authorities seeking to shutter Guantanamo. Both countries are trying to deal with detainees who haven't been charged with a crime, but are thought to be too dangerous to release. There are nearly four dozen prisoners who fit that description at Guantanamo and they have been told they will be held indefinitely.
"It seems to me with Abu Qatada the British are essentially getting to indefinite detention taking the long way home," said Sam Rascoff, a law professor at New York University. He says the governments' 'heads I win, tails you lose' approach is problematic.
"I think if there is too much of a sense that the government is going to have its way no matter what the courts say... it is just a matter of trying a different approach," he said. "I think there is going to be a sense that justice isn't being served, even if the government's objective of keeping someone behind bars is."
British Home Secretary May made clear where she stands.
"The right place for a terrorist is a prison cell," she told the House of Commons. "The right place for a foreign terrorist is a foreign prison cell far away from Britain."