Dearbhail McDonald: Deportation fight creates quagmire for State lawyers
Courts must now grapple with human rights issues in case of accused, writes Dearbhail McDonald
Ireland is, arguably, the best small country to deal with threats to national security. In a permanent State of emergency since 1939, care of the Offences Against the State Act, successive governments have perfected a suite of 'emergency' measures that lesser democracies or aspiring dictators could only dream of.
Since 1972, we have maintained, not without controversy, a non jury Special Criminal Court. With a strong (some might say undue) record of deference towards the State as well as its historic reliance on 'opinion evidence' by senior gardai, the Special Criminal Court is - because of ongoing threats to national security by dissident republicans, amongst others - sadly still with us.
All of which makes aspects of last week's sensational legal action involving the 'foremost recruiter' in Ireland for the Islamic State (Isil) - a purported consultant to violent Isil leaders overseas - somewhat puzzling.
The Irish Isil Christmas drama began on December 21, the last day of the legal term, when the alleged Isil mastermind secured an ex parte (one sided) only temporary injunction preventing his deportation to a country in the Middle East.
The man says he has been previously tortured in this country and claims that he is at even greater risk of persecution now that the Irish Government has labelled him a major Isil recruiter.
The man, who cannot be named for legal reasons, cut quite an unassuming, even genteel figure when I sat close to him in a sparsely populated courtroom last week.
But looks can be deceiving.
Michael Lynn, his senior counsel, told the High Court that the father of four denies he is an Isil recruiter. Mr Lynn also queried why the gardai had not made any moves to prosecute or convict him if he is such a "patent" threat to national security.
It was a point picked up by the Court of Appeal which sat last Wednesday to consider the narrow issue of a stay against the High Court's lifting of the original injunction preventing deportation.
The Court of Appeal was itself stopped in its tracks by the dramatic receipt of a fax from the European Court of Human Rights which said the man cannot be deported until Strasbourg hears his case.
But before the 11th-hour ECtHR intervention, one of the Court of Appeal's three members, Mr Justice Garrett Sheehan, asked if the man had been arrested and questioned in circumstances where the State was arguing that he was involved in murder in other countries and conspiring to commit murder from Ireland.
Judge Sheehan remarked on a 'lack of silence' in court papers submitted by the Irish authorities on the amount of times the man has been questioned by gardai.
Perhaps the State was caught short by the initial injunction in the mouth of Christmas. And given the European wide state of alert over Christmas - train stations in Munich were evacuated over a suspected Isil attack on New Year's Eve - one can imagine gardai don't want to detail specific threats or how they are dealing with them.
But if this man is an existential threat, one who has lived here for 15 years and who came to the attention of the authorities as far back as 2011, why did the State wait until his residency (based on his now teenage Irish-born son) ran out last January before making serious moves about deporting him?
It was only last March that the State, which has repeatedly denied Isil operatives are active here, formally raised his alleged links.
Those Isil denials look foolish now in light of the State's assertions about this 'foremost' suspect.
However, if he an Isil recruiter and helps jihadists to travel, why didn't the authorities seek to deport or prosecute him long before now?
If he is in a "truly exceptional" category, why wasn't he charged with directing terrorism in the Special Criminal Court which, no doubt, would have been sympathetic to any objections by senior gardai to bail pending trial?
The case is complicated by the man's claim, earlier this year, for refugee status, having previously withdrawn an asylum claim (which made no mention of torture) after he secured residency here.
But like Britain before us, Ireland finds itself at the heart of a legal and moral dilemma in which Isil suspects may be waging an assault on the West by relying on its human rights laws.
If Isil wields a sword of terror and mounts attacks on the West with one hand, can their operatives hide behind a shield of human rights principles promoted by the West in the other?
The State's frustration was captured in last week's case by senior counsel Remy Farrell (for the Department of Justice) who said that it was ironic that the more infamous the conduct of the person concerned the more difficult it may be to expel them from your territory. "That is a proposition that is hard to accept," said the lawyer.
It is also a proposition that we may, with all the attendant national security risks, have to live with, not least because the courts here have already grappled with the human rights of suspected jihadists.
Last May the High Court refused to extradite to America Ali Charaf Damache, an Algerian born Irish national, because of concerns over conditions in a US 'supermax' prison. Damache, a suspected Islamic extremist recruiter said to have established a terror cell in Waterford, is now languishing in a Spanish jail fighting extradition to the US - he left Ireland after the State said it would appeal the High Court ruling.
But if prison conditions are enough to prevent extradition to the world's most influential democracy, will the Supreme Court or ECtHR really deport a man who claims he is at risk of torture or death even if he is an alleged Isil murderer?
The State has admitted that it can't deport him under the European Convention if there is a 'real risk' of torture, but is there another way?
The British got around this after a 10-year legal battle over the deportation to Jordan of Abu Qatada, the radical Islamic preacher.
They did so by extracting diplomatic assurances from Jordan (which acquitted Qatada) and creating a "Special Representative for Deportations with Assurances" to allow it to deport terror suspects whilst observing its convention duties.
The 'cry of the emergency,' as Supreme Court judge Mr Justice Adrian Hardiman has observed in another context, is "intoxicating" - one that produces "an exhilarating freedom from the need to consider the rights of others".
Now that Isil has created a new global emergency, countries like Ireland face an unenviable task of protecting their citizens and borders while protecting the rights of others, even those intent on using our rule of law to attack our values.