Control Orders: A Better Alternative

The trouble with Control Orders - the UK security measure whereby terror suspects against whom a conventional legal case cannot easily be built can effectively be placed under indefinite house arrest - is that in practice they embody a presumption of guilt. This is in contrast to the long-established British legal convention that a suspect is to be considered innocent until proven guilty. Yesterday, the government launched an appeal to the House of Lords against a legal ruling previously obtained by six Iraqi Control-Order detainees that their detention violated their rights to liberty and a fair trial.

As in all such cases, it is important to try to strike a balance between the legal and human rights of suspects, and the right of the public to be protected against potential murderers. But the de facto presumption of guilt is clear: if the police who press for a particular suspect to be controlled did not think that the evidence they had gathered strongly suggested the person in question was a terrorist, then there would be no point in the measures - other than the exercise of political coercion to try to intimidate radical groups and individuals into behaving in a more moderate manner. But while a sense of injustice persists about the way in which suspects’ guilt is accepted by the judges who ratify Control Orders, so the suspicion that these measures are just such a coercive political measure will linger, to the detriment of the so-called battle to win hearts and minds.

There is an alternative that would bring more fairness back into the legal process surrounding suspects of this sort. If indeed there is a presumption of guilt, why not formalise this and say that it is then down to the suspect to demonstrate his or her innocence through a fair, open judicial proceeding? The suspect would have the right to know on what basis their guilt was being presumed and could appoint a legal team to build a case in their defence. The issue could then be decided in an adversarial manner just like any other case (albeit that, for security purposes, this might not involve a jury). The difference from the assumption of innocence would be that if, on the balance of evidence, it was not conclusive whether the individual either was or was not a terrorist, the Control Order or other restrictive measure would remain in place - subject to fairly regular (e.g. six-monthly or annual) review. If the verdict was guilty, however, this would enable the suspect to be imprisoned, thus doing away with the anomalous legal no-man’s land of the current system. And obviously, a not-guilty verdict would allow the individuals affected to regain their rightful liberty.

Clearly, there are potential pitfalls behind this idea, and legal safeguards protecting both the rights of the individual and the prerogatives of the state would need to be put in place. The main issue would be whether society would be able to accept a derogation from the presumption of innocence and would be able to overcome concerns that this would lead to further erosion of this basic right. But under the present set up, the presumption of innocence is in fact not working either to protect the rights of suspects or the state’s duty of protection. It’s because the formal process of law demands that the accused be presumed innocent until proven guilty that the case against them can’t be taken to court and the suspects are left in a legal limbo. And because a democratic state can’t arbitrarily impose imprisonment without trial, it has had to come up with the Control Order compromise; but this is not secure, as recent evasions have demonstrated - so society is not being protected.

The limited admission of a formal presumption of guilt that I am advocating would recognise the realities of fighting terrorism, which are that absolute guilt is sometimes impossible to prove beyond all reasonable doubt and that therefore guilt is having to be presumed in certain cases. And, at the same time, this would allow suspects to be given a fair hearing and chance to exonerate themselves if indeed they are without blame. And this would also defuse the charge made in some quarters that Control Orders are politically motivated and are placing the legal system at the service of an oppressive, anti-Islamic state.

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Big Brother's Not Been Watching Enough: The Hypocrisy Of British Tolerance (Part Four)

In the preceding three entries, I've discussed three examples of how British society and culture deal with beliefs and behaviour that are considered to be 'beyond the pale': instances of radical intolerance or hostility towards the 'tolerant society' that are by that token 'beyond tolerance' – intolerable to the tolerant society. These examples are those of 'racism', 'terrorism' and 'anti-social behaviour'. Britain responds to these phenomena in a manner that is reminiscent of psychological censorship and repression. In Freudian terms, the super-ego (the authorities) suppresses the irrational, violent thoughts and desires of the id (the racist / terrorist / anti-social individual) from the conscious mind or ego (from the public domain) and then keeps jealous watch to make sure that these 'undesirable' tendencies do not re-manifest themselves openly – resulting in them being acted out in another way that eludes the scrutiny and sphere of operation of the super-ego. Hence, the racist, terrorist and lout are placed under a regime of watch and control (Celebrity Big Brother, Control Orders and ASBOs); but their thoughts and they themselves nonetheless elude their detention, because Big Brother has merely suppressed and displaced the forces that drive its enemies, not dealt with them and resolved the conflict.

Notice that I referred to these three forms of antagonism towards tolerance in inverted commas. One of the means by which censorship of these phenomena takes place is that particular individuals are stigmatised and scapegoated as representatives of the tendencies that society wishes to repress. In psychological terms, society projects onto those individuals its stereotypical image of the racist, terrorist and yob. These stereotypes in turn partly represent the racism, destructive violence and anti-social attitudes of normal, tolerant members of society themselves. By then suppressing those individuals and confining them to a limited, private space, society believes that it is dealing with racism, terrorism and mindless thuggery themselves – in the same way, and for the same reason, that respectable and respected members of the tolerant society believe they have resolved these very tendencies in themselves: by locking them up in a private, mental space that does not, and must not, be articulated openly.

In other words, all of us individually, and society as a whole, bear an uncanny resemblance to the racist, terrorist and hoodlum. They are as it were extreme manifestations of our own petty intolerances. But because we cannot admit to being intolerant, violent and anti-social in whichever respects apply to each of us, we end up wanting to suppress those extreme examples rather than deal with the underlying issues, which would involve confronting the 'enemy within' ourselves. That's not to deny that racism, terrorism and anti-social behaviour are real problems in the external world, for which practical solutions need to be sought. On the contrary, no real solution to these issues can be found if we're not prepared to admit that we're also an integral part of the problem.

Putting this in more straightforward language: to what extent really is any kind of understanding of the reasons for antagonism between the different races, nationalities and religions currently crowded together in the UK advanced by merely stigmatising Jade Goody as a racist and reprimanding Channel Four for not censoring material that offended the veneer of British inter-racial, multi-cultural tolerance and harmony? Similarly, we do not know whether the terrorist suspects that escaped from their Control Order detention the other week were really terrorists or not: one of the purposes of Control Orders is to suppress any possibility of public scrutiny of these cases and of an open debate on the grievances of those who might be drawn to terrorist-type violence. Tony Blair said we were placing too much emphasis on the civil liberties of the suspect. But if they're only suspects – assumed to be innocent until proven guilty – surely, they should be accorded every civil liberty. But 'suspect' in Blair's book seems to imply that that they are, and indeed they are treated as, guilty without trial.

Mr Blair himself, of course, has been widely accused of being the equivalent of a terrorist: a war criminal and mass murderer because of the direct and indirect consequences of the wars in Iraq and Afghanistan. Branding someone a terrorist or a war criminal is a way to distance and differentiate oneself from one's enemy: to refuse to see any parallel or linkage between your actions and those of your adversary. And so the deaths of tens of thousands of Iraqi civilians are not to be compared with those of 2,000 tragic victims of 9/11. The former are a consequence of 'justifiable' resistance to terrorism and defence of Western strategic interests; while the latter are mere terrorism – not an example of an albeit extreme and, in some cases, desperate response to the injustices for which the West is blamed in Palestine and to Western efforts to place the Middle East firmly under its control. And yet millions of tolerant British citizens gave Mr Blair their approval for the Iraqi foray – apparently accounting the lives of Arab civilians that would be lost as of less importance than those of the Westerners supposedly threatened by Saddam's WMD; just as the so-called Islamist terrorists apparently account the lives of Western 'infidels' as of less importance than those of Muslims.

And is the anti-social individual really any more anti-social than the mass of citizens who pursue their private interests and preoccupations with little concern for those who get left behind? The 'ASBP' (anti-socially behaving person) is stigmatised, on one level, precisely because (s)he is the symbol of the asocial society we have built: one where there is no longer any real shared vision of the type of society and communities we wish to create and sustain, but where individuals invest their energies and aspirations into their own private realm – their homes, their assets, their careers and relationships. The ASBP is someone who is left behind in this rat race. Deprived of the means, opportunity or ability to strive after these personal goals – and without any social or community network to re-direct their energies – they are people confronted by social indifference and lack of personal purpose. So in a sense, it is inevitable that they take it out on a society that has turned its backs on them and attempt to wreck our nice, quiet, comfortable lives. In this way, the ASBP is perhaps more social than the rest of us: they are crying out for the help and attention of a society that doesn't want to know. Rather than opening out and engaging in the social realm that is falling apart around us, our response to ASBPs exemplifies our own social alienation that has given rise to the anti-social behaviour in the first place: the ASBP is merely suppressed, placed under the terms of an ASBO – made to become merely another private individual that will no longer demand that we reach out to them from beyond the parapets of our homes-as-castles, thereby acting in a social, collective manner that could change all of our lives and begin to re-make a broken society.

Those who we ostracise as beyond tolerance – the racist, terrorist and anti-social person – are, ultimately, symbols of the limits of our own tolerance: of the prejudiced bigot, the supporter of violence and the selfish individualist that we all are to some extent. Overcoming these problems will involve defeating them in ourselves: to love our enemies, indeed, as ourselves.

Big Brother's Not Been Watching Enough: The Hypocrisy Of British Tolerance (Part Two)

Big Brother has also failed in its duty of watchfulness in another respect, it was revealed last week. It appears that three persons who were confined to their homes under the terms of so-called 'control orders' have escaped. Control orders are a set of judicially sanctioned restrictions to certain individuals' liberties (effectively a form of house arrest). This measure is aimed at terrorist suspects, where there may not be enough hard and fast evidence to stand up in a court of law, but where the security forces are sufficiently concerned about individuals' activities to wish to impose forcible constraints upon them.

As a result of the escapes that were publicised last week, the Home Secretary (interior minister) John Reid stated that the UK might have to opt out of some of the clauses of European human rights legislation that limited the scope of control orders. He promised tougher anti-terrorist measures would be introduced before parliament by the end of June, when he and his boss Tony Blair step down. Tony Blair himself pitched into the fray yesterday (Sunday 27 May) by arguing in favour of a new police power to stop and interrogate suspects on the street. The prime minister stated, “We have chosen as a society to put the civil liberties of the suspect, even if a foreign national, first. I happen to believe this is misguided and wrong”. Well, that all depends on what qualifies you as a suspect, I suppose. And are the civil liberties of 'foreigners' any less important than those of UK subjects?

The control order regime, and the fact that it was sufficiently lax to allow these three suspects to escape, is another illustration of the British approach to dealing with radical intolerance, discussed in my last entry in connection with the Shilpa Shetty episode in Celebrity Big Brother. Control orders bear all the hallmarks of a process of suppressing and censoring people and ideas that are 'beyond tolerance', rather than dealing with them in a more publicly accountable way, or even in a more ruthless, systematic fashion that would definitely put them out of circulation. In this sense, control orders already do represent Britain's equivalent to Guantanamo Bay, a direction in which the Northern Ireland minister Peter Hain yesterday warned that the new proposed anti-terrorist measures were taking Britain.

Indeed, what more striking expression of the ambiguity of British 'zero tolerance' towards the radically intolerant could there be than control orders? Individuals are not locked up in a judicial limbo, like Guantanamo (which, to give him his 'credit', Tony Blair has argued that they should be); instead, they are 'politely' removed from the public domain and confined to the private realm of their homes. It is as if the intolerance exemplified by supposed terrorists – like the intolerance to which every citizen is prone to some extent – can be tolerated so long as it is confined to the privacy of the home and the individual's thoughts. And like any form of censorship – political or psychological – the setting up of control orders represents a means not just to suppress the individuals and ideas that are intolerable but also to censor the very mechanisms by which those persons and thoughts are suppressed: the process takes place in a sort of judicial no-man's land, outside of the normal operation of justice, where the facts of the case, the names of the individuals involved, and the values driving the activities of the 'suspects' are removed from the public domain.

In other words, control orders are a very British compromise between wanting / needing to act in a radically intolerant way towards those suspected of threatening the very tolerance upon which our liberal society rests, without having to admit that one is behaving in an intolerant manner. Because of this, control orders do preserve some elements of 'liberty' for those subjected to them: the liberties of private association, conscience and speech. We don't in fact seek to exercise mind control like the Orwellian Big Brother or, arguably, like the mental torturers of Guantanamo Bay or Abu Ghraib. The specific control order that applied to the three escapees must also have allowed them sufficient freedom to meet or communicate with each other to co-ordinate their flight. There is perhaps even an element of British fair play involved: we allow them a bit of slack, on the basis that our gut instinct is that what we're doing to them strictly isn't fair, and on the assumption that they might have the decency to play fair in their turn and not attempt to abscond – and then we get all indignant when they have the temerity to do a runner anyway!

There's an interesting parallel between the control-order evaders and the lack of editorial oversight on which the Shilpa Shetty furore has now been blamed. When what is involved is censorship of something intolerable rather than acknowledging it and attempting to deal with it openly (whether through honest discussion or due legal process), then what happens is that rather than watching the object of suspicion, it is all too easy to take one's eye off the ball: to stop looking at the real issue and the real danger. And then that real threat, which has escaped your attention because you thought you'd placed it under control and then stopped looking at, can elude you and come back to haunt you.

The evasion of the three control-order detainees represents the danger that their actions and ideas could once again impinge upon, invade, the public domain. But in a more profound sense, their evasion presents the threat of an invasion of our privacy. Our confinement of those suspects to 'their own' private space was a means to keep them away from ours. Our British society is a private society, where the individual jealously guards their right to freely pursue their own personal and professional goals (both ever more exclusively defined in the terms of the market society, or 'private enterprise') untrammelled by the claims that religious or ideological absolutism might wish to impose upon them. The 'terrorist' or the 'racist' extremist is a threat to this tolerance based on mutual respect and pursuit of each other's private goals. They must therefore be suppressed, and their intolerance (as is ours) must be relegated to its own private space: the control-order detainees' prison-from-prison that is their home, or the prison of the Big Brother House. If they should get out – even more importantly, if their intolerable ideas should get out and gain hold – then, like the 'racist' outbursts in Celebrity Big Brother, this would indeed be an unbearable invasion of privacy.