Yadegary wins again

The Court of Appeal has dismissed the government's appeal against the High Court's decision to free Thomas Yadegary, with two of the three judges agreeing that prolonged imprisonment with no real prospect of release constituted "exceptional circumstances" under the law. Reading the decision [PDF] reveals just how exceptional and disproportionate Yadegary's imprisonment was: despite not having been charged, let alone convicted of a crime, he has served more time than most of those convicted of a violent offence. The average sentence for grievous assault or robbery is 24.1 months, and the average for indecent assault is 18.2. Yadegary spent 29 months in prison. Its worse when you remember that actual time served is usually between one-third and two-thirds of the sentence; once this is taken into account, Yadegary's imprisonment is up there with that of people convicted of kidnapping or attempted sexual violation. And of course its vastly higher than that handed out for any contempt of court, or for any other offence against the administration of justice.

What's really disturbing is that the government didn't think this was "exceptional", and that while of course they didn't mean for Yadegary to be imprisoned indefinitely, they nonetheless felt they should be allowed to. They even had the gall to argue that he wanted to be imprisoned, and that they wanted nothing more than to release him. Fortunately the judges treated these arguments with the utter contempt they deserved.

But what's most disturbing is that the government's new Immigration Bill includes a clause forbidding bail to any immigration detainee, and stating that the length of imprisonment cannot be considered an "exceptional circumstance" in deciding upon release. So, while disclaiming indefinite detention, they are seeking to put in place the very legal mechanisms to allow it in practice. Yet another example of how our "left-wing" government is simply two-faced on human rights.

Guantanamo: not justice II

In the wake of his show trial, Salim Hamdan has been sentenced to 66 months imprisonment. But he's already served over five years in prison, so he should be released soon, right? Wrong!

On time served Hamdan could be released in five months but the Pentagon has said he will still be retained as an "enemy combatant".

The US has always argued it can detain such people indefinitely, as long as its so-called war on terror continues.

So, despite having a "trial", they intend to detain him indefinitely regardless. Which makes you wonder why they even bothered with a "trial" at all...

42 days detention is dead

For the past six months, the UK government has been attempting to extend the period suspected terrorists can be detained without trial - already the longest in any western democracy - from 28 days to 42 days. Now, the plan is dead. Not due to the actions of Conservative MP David Davis, who resigned to fight a byelection on the issue (and whose results are due in shortly), but due to the first speech of a new arrival in the House of Lords: Baroness Eliza Manningham-Buller:

In deciding what I believe on these matters, I have weighed up the balance between the right to life—the most important civil liberty—the fact that there is no such thing as complete security and the importance of our hard-won civil liberties. Therefore, on a matter of principle, I cannot support the proposal in the Bill for pre-charge detention of 42 days.

I understand that there are different views and that these judgments are honestly reached by others. I respect those views, but I do not see on a practical basis or on a principled one that these proposals are in any way workable for the reasons already mentioned and because of the need for the suspect to be given the right to a fair trial.

What gives this opinion weight is that she is the former head of MI5, the very people tasked with combating domestic terrorism in the UK. The Lords were always dubious about extending detention, but this makes it almost certain to fail. Meanwhile, we get to savour the irony of a country where spies oppose further powers, and aristocrats are the last defenders of freedom...

(Hat tip: GoNZo Freakpower)

Guantanamo: freedom?

For the past six years, the US government has been holding a group of Chinese Uighurs prisoners in its Guantanamo Bay gulag, despite admitting that they are not terrorists and pose no threat to the United States. Now, one of them has done the unthinkable: got a US court to overturn their designation as an "enemy combatant":

The three-judge panel directed the US military to release Mr Parhat, transfer him or promptly set up a new military tribunal to try him.

The court also specified that Mr Parhat could petition a federal judge for his immediate release in light of the Supreme Court's 12 June decision.

It is not clear yet whether the US government will appeal to keep an innocent man in prison, or whether they will admit defeat and release him. I'm hoping for the latter. As for where to send him, there is only one just solution. The US has refused to return Parhat to China because of fears he will be tortured by the Chinese regime. That is a prima facie admission that he has a well-founded fear of persecution. Having admitted that, the US has a legal and moral duty to grant him refugee status and give him a new home in America.

David Davis

Well, that was unexpected. In the wake of yesterday's Commons vote in favour of 42-days detention, UK Shadow Home Secretary David Davis has resigned from Parliament, with the aim of fighting a by-election on the issue. Labour has already announced they won't be running a candidate, as have the LibDems (for entirely different reasons), but as gesture-politics goes, it's pretty significant.

Meanwhile New Labour seems intent on treating detention without charge as a matter of political virility. "We're willing to lock people up without evidence or trial for longer than you, therefore you must be 'soft' and unmanly". Can't these people just get some Viagra and stop taking out their sexual hangups on innocent people through the judicial system?

(The same comment can be applied to Phil Goff, Simon Power, and the rest of those apes competing to be "tough on crime" in New Zealand).

Habeas lives!

Habeas Corpus is one of the most basic procedural safeguards in common-law legal systems. Dating back to the middle ages, it allows the courts to examine the legality of someone's detention, and free them if they are unlawfully imprisoned. And the US Supreme Court have just ruled [PDF] that it applies even to prisoners at Guantanamo, and that the efforts of the Bush administration and Congress to deny that right were illegal. It's a tremendous victory for freedom, the rule of law, and sanity in the face of the Bush Administration's lawless "war on terror".

What happens next? Well, obviously some Guantanamo detainees will challenge the legality of their detention. And some of them have a very good case - notably those found by Bush's kangaroo courts not to be "enemy combatants", but still held in 23-hour-a-day lockdown because His Majesty the President does not want to let them go. The Bush Administration will no doubt react strongly to this, and demand Congress passes another law to prevent Guantanamo's victims from being treated fairly according to law, but the Supreme Court has basically said that that won't fly. Absent suspension, any parallel judicial process has to include an "adequate equivalent" of habeas. And any suspension is only effective where a disaster or conflict prevents the civil courts from operating. So, short of Al Qaeda physically attacking Guantanamo and turning it into an actual warzone, rather than a safe place where the US can hold show trials at its leisure, the detainees there have access to the courts. And Bush is just going to have to accept that.

£1.2 billion

That's officially the price of freedom in the UK, after Gordon brown scraped to the narrowest of victories on the issue of 42-days detention by buying the votes of the DUP. For that £1.2 billion, Northern Ireland will get to sell assets and retain water charges (oh, and won't be subject to UK abortion law either - the DUP is after all the party of Ian Paisley). The UK meanwhile will move even further towards a police state, with police allowed to detain random Muslims suspected "terrorists" for 6 weeks before having to charge them. Under existing law they're already allowed to do that for 28 days - the longest terror-detention limit of any democracy - and it turns out that half of those they detain are released without charge. That's unacceptable as it is, and they want to make it worse?

The good news is that the victory is pyrrhic, with the Lords seeming set to reprise their role as the last defenders of British liberty (ironic given that they're a pack of unelected aristocrats). If by some miracle (or another £1.2 billion and some tawdry pandering to the unelected Bishops on abortion and gay rights) it ever gets out of there and passes into law, it is almost certain to be overturned by the courts as grossly inconsistent with the ECHR. So, despite the posturing, Brown won't get what he wants. It will however be a messy ride.

Meanwhile, the worst reason for voting for the bill has to go to Austin Mitchell (yes, that one), who said he had done it

to save Gordon [Brown] for the nation.

But leaders who suppress fundamental rights in order to appear "tough" on terrorism don't deserve to be saved. They deserve to be overthrown. And the sooner it happens, the better.

42 days

Tomorrow (NZ time) the UK Parliament will vote on yet more anti-terror legislation, this time extending the time a suspected terrorist may be detained without charge for "questioning" to 42 days. It's a completely unnecessary move - while the time limit was extended to 28 days last year, no suspect has been held for more than 14 - and is facing widespread opposition from backbench MPs who remember that once upon a time, their party stood for civil liberties rather than a jackboot on a human face forever.

The government is desperate to get this through, to the extent that they've reportedly put £200 million on the table for Northern Ireland to buy the votes of the Democratic Unionist Party. And now they're offering a pitiful "compensation" scheme for those ultimately not charged (which will of course create an incentive for police to charge, regardless of the evidence). This, for something described by one of its victims as psychological torture.

The most ironic comment on the issue has to come from Labour MP Keith Vaz, who wrote to Labour MPs urging them to support the bill:

As a nation we need to stand together united and strong, giving no quarter to those who wish to destroy our way of life.

Indeed. It's just that the people who want to destroy the British way of life are in Westminster and Downing Street and Thames House...

The vote will likely be early tomorrow morning, and I'll be waiting to see which way it goes - whether the UK remains a free society, or slips even further towards a tyrannical police state.

Dropped

The Bush administration has dropped charges against Guantanamo detainee Mohammad al-Qahtani, who they had alleged would have been the "20th hijacker" in the 9/11 attacks. For those who don't recognise the name, al-Qahtani is otherwise known as "detainee 063". He was subjected to prolonged torture - sleep deprivation, forced exercises, stress positions, white noise, sexual humiliation, snarling dogs, forced enemas and prolonged isolation - under the personal supervision of then US Defence Secretary Donald Rumsfeld. This torture eventually drove him mad:

By late November 2002, an FBI agent wrote, Detainee 063, Mohamed al-Kahtani, was "evidencing behavior consistent with extreme psychological trauma (talking to nonexistent people, reporting hearing voices, cowering in a corner of his cell covered with a sheet for hours on end.)"

No court in the world would convict a defendant after that sort of criminal misconduct by the prosecution, or regard statements extracted by such methods as even remotely reliable. And this is why the charges have been dropped. So the Bush administration's policy of torture isn't just a disaster for human rights - it is also a disaster for justice.

The question now is what the US will do with al-Qahtani. They can't prosecute him. They can't even use him as a witness. They should therefore let him go, but I doubt they'll do that. Instead, they will almost certainly continue to detain him, effectively punishing him without trial or appeal. In their effort to fight monsters, the US have become monsters themselves.

Released

Saudi blogger Fouad al-Farhan has been released from prison after four months detention without charge. In December last year he was arrested after criticising Saudi Arabia's pervasive corruption and highlighting the plight of political prisoners on his blog. His arrest more than proves his point about the use of "security detention" to stifle dissent, though at a high price.

Meanwhile, the Saudi regime is absolutely unrepentant, with the Deputy Interior Minister saying that Al-Farhan had committed a mistake and had to bear the consequences. So, straight from the horse's mouth, criticising the government is a "mistake" worthy of punishment. There really is no freedom of speech in Saudi Arabia.

Guantanamo: six years of shame

Today is the sixth anniversary of the opening of the US gulag at Guantanamo Bay, Cuba, During those six years, 775 people have been detained without trial; 305 of them are still there. Despite endless promises that the prisoners would be put on trial, and a review process that has ranged from the farcical to the Kafkaesque, only 10 of them have ever been charged, and only one - Australian David Hicks, who plead guilty in order to return to Australia - convicted. The rest have languished there, without charge, without trial, without hope, in what has become one of the greatest symbols of America's decline into despotism. And this despite the fact that less than half of them are even accused of committing hostile acts against the US or its allies.

Guantanamo violates two of the most basic principles of human rights: that everyone, no matter what they are accused of, is entitled to a fair trial, and that no-one, no matter what they have done, should be detained arbitrarily or tortured. These rights go back a long way; they were some of the first human rights principles recognised in the western world. Once upon a time, the US regarded them as worth going to war over. Now it has joined the Chinese, Uzbeks, Saudis, and other leading examples of human rights in pissing all over them. Unlike them, it doesn't even have the decency to be ashamed about it.

Guantanamo is an obscenity and a symbol of the corruption of America. Six years on, there can be only one response: Guantanamo delenda est - Guantanamo must be closed.

Mohebbi freed!

Amir Mohebbi, the last of the Iranian refugees detained without trial for refusing to allow himself to be deported back to persecution and death, has finally been freed. Mohebbi - a convert to Christianity - had spent almost 4 years in prison after refusing to apply for the Iranian passport which would have allowed him to be deported. That's four years imprisonment without charge, trial, or conviction, essentially detained at the pleasure of the Minister. It was wrong, obscene even, and I'm glad a court has finally recognised this and ordered his release.

Now that the iranian 5 are out of jail, its time we looked seriously at how to deal with Christian converts fleeing Iran. The UN does not recognise that the persecution there is sufficient to automatically result in a grant of refugee status. However, many western countries - the UK, Belgium, Canada, Holland, even Australia do. These countries will not deport people back to a risk of persecution in Iran, and its time we joined them.

It's also time to reconsider the practice of indefinite immigration detention as a measure to coerce "voluntary" deportation. By any serious measure, this system has failed; in the last year, only two of the fourteen detained under it were deported, the rest ultimately being released by the courts after their detention dragged on for too long. Unfortunately, with Winston and the National Party waging the usual xenophobic bidding war on being "tough on immigration", the government seems fully committed to retaining and continuing to use this hugely expensive system of pointless sadism, and has included it in its new Immigration Bill. However, despite changes to make it even more vicious, it seems unlikely to be any more effective; New Zealand judges will not allow people to be detained indefinitely for no useful purpose, and the government should accept that.

How many detentions?

How many people does Immigration detain, and for how long? Efforts to gain this information under the OIA have been unsuccessful; however the Department of Labour's annual reports track detentions as a performance indicator. Here's what I've dug out of them since 2003, when the current regime began:

	2003	2004	2005	2006
Auckland Central Remand Prison	15	26	14	13
Mangere "Accomodation" Centre	131	84	62	57
Released on conditions	N/A	66	N/A	40

It's unclear how much double-counting there is here - whether for example someone detained in 2004 under a warrant of commitment counts only in that year, or in subsequent years as well, but its still more information than we had previously.

By way of comparison, as at 23 May 2007 [PDF], Immigration had 26 people in custody with Corrections, split between the Auckland Central Remand, Waikeria and Rimutuka prisons. Which suggests a rather dramatic increase in the use of detention.

Ali Panah granted bail

Ali Reza Panah, the Iranian refugee detained without trial for 20 months, has reportedly been granted bail:

A hunger-striking Iranian man who faces deportation from New Zealand has been granted bail.

Ali Panah has been on hunger strike for 53 days in protest against efforts to deport him to Iran, where he says he will be persecuted due to his conversion to Christianity.

[...]

Mr Panah was this afternoon released on bail at a hearing in North Shore District Court, Radio New Zealand reported.

The Department of Labour did not oppose his release.

Mr Panah was given strict bail conditions by the court including that he is to stay at his vicar's house and he is to resume eating.

I guess the government realised that if he died, people were going to lay the corpse on their doorstep.

This is good news, but its not victory. That will only come when we cease our indefensible practice of indefinite detention without trial and accept our human rights obligation not to return converts to religious persecution in Iran. There are still two more Iranian converts who have been similarly detained - one of them for over two years. Isn't it time we released them too?

Is Labour going to let Ali Panah die?

Ali Reza Panah is now on the 53rd day of his hunger strike against his indefinte detention under immigration laws. According to Wikipedia, the estimated limit for a hunger strike is 60 days. People have lasted longer (the world record is 94 days), but its not likely. So, if his hunger strike continues, then sometime in the next two or three weeks Ali Reza Panah will likely starve to death.

What I'm wondering is whether the Labour Party is willing to see that happen. Are they so bereft of compassion that they will let a man die, just to prove that they are "hard", and that we are not a "soft touch" for refugees?

If so, then they will have finally and absolutely proven themselves to be a party without a soul.

How effective is indefinite detention?

At the moment, Ali Reza Panah is being detained in Mount Eden Prison by the Immigration Departmnet in an effort to force him to sign travel documents permitting him to be deported back to persecution and death in Iran. In Ali Panah's case, the detention has been sepctacularly unsuccessful - he has been there for eighteen months. Three others are similarly detained under s60 (6) (b) of the Immigration Act, two of them for over a year.

This raises the question of how effective this sort of indefinite detention is generally. My efforts to find out have been unsuccessful - Immigration apparently "doesn't keep records" of the number of people they have detained in this fashion over the years. But the Greens' Keith Locke has been on the case, and through Parliamentary written questions has managed to get a partial answer out of the Minister. In response to his question (14105 (2007)) about the outcomes of indefinite detention under s60 (6) (b), the Minister replied:

As at 13 August 2007, of the people detained under Section 60 (6) as a whole, two have been removed in the financial year 2007/08, four are in detention, and eight have been released on conditions, awaiting either removal or a decision on an application with Immigration New Zealand.

So, it's been successful in only two out of fourteen cases in the last year. And against this dismal backdrop, the Minister wants to increase the use of indefinite detention and make it easier to keep people in jail for longer?

This policy isn't just wrong - it is also, on the evidence, ineffective - a hugely expensive exercise in pointless sadism. It should be scrapped, and the sooner the better.

Let America clean up its own mess

Since late 2001, the US government has been holding 17 Uighurs in its gulag at Guantanamo Bay. Sold to the US by Pakistani bounty hunters, the Uighurs were originally suspected of being terrorists. However, in 2003 they were cleared of all charges by a US military tribunal and ordered to be released. Despite this, they have continued to be detained in isolation for 22 hours a day, on the grounds that the US can not return them to China as they would face a substantial risk of persecution. Instead, the US government has tried to dump their problem on other countries such as Canada and Albania. And now we learn that they even tried to dump them on New Zealand.

The request was refused, and rightly so. These people are currently in the custody of the United States, which has wrongfuly imprisoned them for almost six years. The US has already admitted that they have a well-founded fear of persecution and qualify as refugees under the Refugee Convention. It should therefore grant them refugee status and let them live in the United States.

Immigration Bill: truth through secrecy

One of the most egregious features of the government's new Immigration Bill is that it would massively increase the scope for the use of classified information, allowing it to be used in any immigration decision and essentially making its use routine. This is bad enough - the use of secret "evidence" kept hidden from an applicant violates the right to natural justice and is a recipe for official abuse - but reading through the bill last night, I discovered that its worse. The decisions classified information can be used in include those on warrants of commitment allowing potential migrants and deportees to be detained. When classified information is used, the decision is automatically escalated to the High Court. However, the section (s289) on how the High Court must handle such decisions includes the following rather Orwellian clause:

(2) In determinining the application [for a warrant of commitment]...

(b) it is not the role of the nominated Judge to determine the matters described in section 217 (1); and

(c) the classified information must be treated as accurate

(Emphasis added; s217(1) states that in proceedings involving classified information, the new Immigration and Protection Tribunal must decide whether the classified information is relevant and credible, and whether it actually needs to be secret. Clause 289 (2) (c) obviously overrides this).

So, according to the bill, if it is secret, it is true, at least when it comes to decisions on whether to keep people in prison. And it is easy to see how this clause will be abused. An important consideration in deciding whether to issue a warrant of commitment under the new bill is whether the subject is likely to make themselves available for deportation in the future - those deemed likely to may instead be released on conditions rather than being imprisoned. If Immigration alleges that someone is a flight risk, then that allegation will be decided by the judge. But if it is alleged secretly, not only must the allegation be kept secret from the subject, but it must also be regarded as true. At this stage, it is worth pointing out that "classified information" can come from any government agency, including Immigration, so Immigration officials have a perfect power to have people locked up indefinitely on secret "evidence", the accuracy of which is forbidden from being assessed. This makes an absolute mockery of the right to natural justice, and indeed of any notion of independent judicial oversight; we might as well just remove the judiciary from the process entirely and put it directly in the hands of immigration officials.

As for people who think Immigration can be trusted not to abuse this power, it's worth remembering that they are the deparment which lies in unison, and misleads the Ombudsman. I don't think they'll have any compunction about classifying ordinary allegations and evidence for which there is no need for secrecy in order to achieve a desired outcome and bypass judicial oversight.

Ali Reza Panah

Ali Reza Panah has been detained without charge or trial in Mount Eden Prison for almost two years now. Like Thomas Yadegary, he is an Iranian refugee and a convert to Christianiy. Like Yadegary, he fears persecution as an apostate if forced to return to his native country, and so has refused to apply for the travel documents necessary to deport him. As a result, he has been detained under a warrant of commitment, and will be detained indefinitely until he agrees to sign his own death warrant.

Panah is currently on hunger strike protesting his indefinite detention. After 35 days, he is reportedly emaciated and on the verge of death. If it continues, there is every likelihood that he will die. New Zealand's Anglican Archbishops are appealing to the Minister of Immigration David Cunliffe to show some mercy and grant Panah residency. They have set up a petition for members of the public to show their support. You can sign it here.

An important question

Remember Jose Padilla? Arrested in Chicago in 2002, he was then detained as an "enemy combatant" in a military brig, denied access to a lawyer, and subjected to sustained psychological torture - despite the fact that he is a US citizen. Finally, after three and a half years detention without trial, Padilla was transferred to civillian jurisdiction and charged with conspiracy and providing material support for terrorism. Today, he was convicted, and now faces a possible sentence of life imprisonment. This was done in open court, under ordinary law, and by a jury of his peers. So why did the Bush Administration need to violate his human rights, detain him without trial, and torture him again...?