The Qatada case is an undeniable mess, but it is a mess which follows a decade in which the rules of justice were swept aside
These days it often requires a fundamentalist to bring about a clash of constitutional fundamentals. So it was on Monday, as the government launched an open attack on the judicial ruling of the special immigration appeals tribunal, for deciding that jihadist Abu Qatada would have to be freed on bail. Barring last-minute manoeuvres in both Strasbourg and Amman, this will happen. Whitehall's reaction went beyond the language of "disappointment" in which it ordinarily greets setbacks in court. Instead, it instantly demanded near round-the-clock house arrest, without pausing to think how this fitted with the coalition's own promises to curb detention of suspects who have not been charged.
For Qatada never has been – and that is the principal fact to bear in mind while trying to make some sense of this case. If ministers feel frustrated that they are now running out of options to restrain this very likely dangerous individual, that is understandable enough. But why is it, they should ask, that a whole decade after he was first locked up in Belmarsh (under emergency powers that proved unlawful), the full might of British justice has still not managed to put him in the dock?
After all, if even a fraction of what is claimed about Osama bin Laden's supposed "right-hand man in Europe" is true – and we've no reason to dispute it – there ought to be ways of bringing him to book. If there were indeed hate-fuelled sermons, then why can't tapes facilitate prosecution under various incitement charges? The ancient offence of soliciting to commit murder proved perfectly adequate for nailing other jihadis this way. And even after the attempt to deport Qatada to stand trial in Jordan unavoidably collapsed in Strasbourg – because of fears the trial would have been utterly corrupted by reliance on evidence extracted under torture – he could still potentially be punished for any serious crimes he committed in that country. The UK has the facility to try suspects for things like terrorism extra-territorially, if it can compile sound evidence.
All sorts of specific theories might explain the failure to pursue Qatada in open court, including embarrassing a security service which once deemed him harmless. But is there not a more general lesson too? As the Americans have found with the continuing disgrace of Guantánamo Bay, once the carriage of justice has slid from the tracks, it is ferociously difficult to get back on the rails. For a decade, counter-terrorism has fumbled in panic for extraordinary measures – internment, control orders, Tpims and gentlemen's agreements to enable deportations to despotism – until the proper way of doing things has almost been forgotten. The Qatada case is an undeniable mess, but it is a mess which follows a decade in which the rules of justice were swept aside.