Routledge Handbook of Law and Terrorism [1 ed.] 9780415870375, 9780203795835

Citation preview

Routledge Handbook of Law and Terrorism

In the years since 9/11, counter-terrorism law and policy has proliferated across the world. This handbook comprehensively surveys how the law has been deployed in all aspects of counterterrorism. It provides an authoritative and critical analysis of counter-terrorism laws in domestic jurisdictions, taking a comparative approach to a range of jurisdictions, especially the UK, the US, Australia, Canada, and Europe. The contributions to the book are written by experts in the field of terrorism law and policy, allowing for discussion of a wide range of regulatory responses and strategies of governance. The book is divided into four parts, reflective of established counter-terrorism strategic approaches, and covers key themes such as: • • • • •

Policing and special powers, including surveillance Criminal offences and court processes Prevention of radicalisation and manifestations of extremism Protective/preparative security The penology of terrorism

In addressing counter-terrorism laws across a broad range of topics and jurisdictions, the handbook will be of great interest and use to researchers, students and practitioners in criminal law, counter-terrorism, and security studies. Genevieve Lennon is Chancellor’s Fellow at the School of Law, University of Strathclyde. Her research expertise lies in the areas of counter-terrorism law and policy, in particular in relation to human rights, accountability, and counter-terrorist policing. She has published and presented on various aspects of counter-terrorism. Clive Walker is Professor Emeritus of Criminal Justice Studies at the School of Law, University of Leeds. He was Director of the Centre for Criminal Justice Studies from 1987 to 2000 and then Head of the Law School between 2000 and 2005 and in 2010. He has written extensively on terrorism issues, with many published papers not only in the UK but also in several other jurisdictions, especially Australia and the US, where he has been a visiting professor at George Washington, Melbourne, New South Wales, and Stanford Universities.

This page intentionally left blank

Routledge Handbook of Law and Terrorism

Edited by Genevieve Lennon and Clive Walker

First published 2015 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN and by Routledge 711 Third Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2015 editorial matter and selection Genevieve Lennon and Clive Walker; individual chapters: the contributors. The right of Genevieve Lennon and Clive Walker to be identified as editors of this work has been asserted by them in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data A catalog record for this book has been requested ISBN: 978-0-415-87037-5 (hbk) ISBN: 978-0-203-79583-5 (ebk) Typeset in Bembo by FiSH Books Ltd, Enfield

Contents

Table of abbreviations Contributors Preface, David Anderson QC 1

Introduction Genevieve Lennon and Clive Walker

viii ix xix 1

PART I

The boundaries and strategies of national counter-terrorism laws

17

2

Terrorism as a legal concept Ben Saul

19

3

Counter-terrorism, emergency, and national laws Mariona Llobet-Anglí and Aniceto Masferrer

38

4

What’s in a word? War, law and counter-terrorism Laurie R Blank

52

5

The migration and derivation of counter-terrorism Kent Roach

68

6

The interaction of terrorism laws with human rights Federico Fabbrini

85

7

Terrorism laws and constitutional accountability John Ip

99

8

Terrorism laws and legal accountability Brice Dickson

116

v

Contents

PART II

The pursuit of terrorists through national criminal justice process and executive measures

131

9

133

Surveillance powers and the generation of intelligence within the law Simon McKay and Jon Moran

10 Dataveillance and terrorism: swamps, haystacks and the eye of providence Stuart Macdonald

147

11 Detention and interrogation in law and war Stephen I Vladeck and Clive Walker

163

12 Counter-terrorism policing and security arrangements Saskia Hufnagel

179

13 Precursor crimes of terrorism Manuel Cancio Meliá and Anneke Petzsche

194

14 The trial of terrorism: national security courts and beyond Fionnuala Ní Aoláin and Oren Gross

206

15 Executive measures against the liberties of terrorism suspects Mordechai Kremnitzer and Lina Saba-Habesch

222

16 The global system of counter-terrorist finance: what has it achieved; what can it achieve? Peter Sproat 17 Aliens and counter-terrorism Elspeth Guild 18 The handling and disclosure of sensitive intelligence: closed material procedures and constitutional change in the ‘Five Eyes’ nations David Jenkins

237

251

266

19 The victims of terrorism Ilaria Bottigliero, Lyal S Sunga, and Clive Walker

282

20 Evidence of the impact of counter-terrorism legislation Tim Legrand, Simon Bronitt, and Mark Stewart

297

vi

Contents

PART III

Protective security

313

21 Homeland security Amos Guiora, Genevieve Lennon, and Clive Walker

315

22 Security inspections in the US and UK: suspicionless counter-terrorist stop and search Genevieve Lennon 23 Securing the transport system Steve Swain 24 State development of incapacitating chemical agent weapons: implications including potential terrorist misuse Michael Crowley and Malcolm Dando

334

349

365

PART IV

Preventive measures

381

25 ‘Prevent’ policies and laws: a comparative survey of the UK, Malaysia, and Pakistan Abdul Razak, Javaid Rehman, and Joshua Skoczylis

383

26 The myth of the ‘securitised Muslim community’: the social impact of post-9/11 counter-terrorist law and policy in the west Steven Greer

400

27 Countering terrorism via the internet Maura Conway and Clive Walker

416

28 Manifestations of extremism Fergal Davis and Clive Walker

432

29 The penology of terrorism Catherine Appleton and Clive Walker

447

30 Conclusion Genevieve Lennon and Clive Walker

463

Bibliography Index

468 476

vii

Abbreviations

ASEAN AUMF CIA CTC DHS ECHR ECJ ECtHR EU FEMA GCHQ IG IHL IHRL INSLM JCHR NSA NSL OCST TPIM UK UN UNSCR US USA PATRIOT Act

viii

Association of South-East Asian Nations Authorisation for the Use of Military Force Central Intelligence Agency Counter-Terrorism Committee (United Nations) Department for Homeland Security European Convention on Human Rights European Court of Justice European Court of Human Rights European Union Federal Emergency Management Agency Government Communications Headquarters Inspector General International Humanitarian Law International Human Rights Law Independent National Security Legislation Monitor Joint Committee on Human Rights National Security Agency National Security Letters Office for Security and Counter-Terrorism (Home Office) Terrorism Prevention and Investigation Measures United Kingdom United Nations United Nations Security Council Resolution United States of America Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001

Contributors

Catherine Appleton is Senior Research Fellow at the School of Law, University of Notting-

ham. Before this, she was Lecturer in Criminology at the School of Law, University of Leeds, and Research Officer at the Centre for Criminology, University of Oxford. Dr Appleton’s research focuses on ‘ultimate penalties’ and the question of how societies respond to their most serious crimes. Her first monograph, published by Oxford University Press in 2010, examined Life after Life Imprisonment for a group of released life-sentenced prisoners in England and Wales, and was awarded the 2011 British Society of Criminology Book Prize. Her most recent article, ‘Lone Wolf Terrorism in Norway’, published in the International Journal of Human Rights, assessed the response by Norwegian authorities to the twin terror attacks in 2011. Catherine is currently engaged on a research project, funded by the Leverhulme Trust, examining the imposition and implementation of life imprisonment worldwide. Laurie R Blank is a Clinical Professor of Law and the Director of the International Humanitarian Law Clinic at Emory University School of Law, where she teaches international humanitarian law and works directly with students to provide assistance to international tribunals, non-governmental organisations, and militaries around the world on cutting-edge issues in humanitarian law and human rights. Professor Blank is the co-author of International Law and Armed Conflict: Fundamental Principles and Contemporary Challenges in the Law of War (Aspen/Wolters Kluwer, Denver, 2013), co-director of a multi-year project on military training programmes in the law of war, and co-author of Law of War Training: Resources for Military and Civilian Leaders (2nd edn, US Institute of Peace, Washington DC, 2013). Professor Blank received an AB in Politics from Princeton University, an MA in International Relations from the Paul H. Nitze School of Advanced International Studies (SAIS) at the Johns Hopkins University, and a JD from NewYork University School of Law. Ilaria Bottigliero PhD International Law (Graduate Institute of International Studies, Geneva), Diplôme d’Études Supérieures International Law (Graduate Institute of International Studies), Laurea Political Sciences (La Sapienza University, Rome) – is Director of Research and Learning at the International Development Law Organization (IDLO). Prior to joining IDLO, she lectured at the Raoul Wallenberg Institute of Human Rights and Humanitarian Law, Lund, Sweden, and at the Lund University Faculty of Law. She was also Lecturer at the Chinese University of Hong Kong and the University of Hong Kong Faculty of Law. She authored Redress for Victims of Crimes under International Law (Nijhoff, Leiden, 2004), and several publications on victims’ rights, international criminal justice, and gender issues. Dr Bottigliero is the recipient of the 2010 Worldwide Universities Network – International and Comparative Criminal Justice Network Fellowship, hosted by the Centre for Criminal Justice Studies, University of Leeds, and the Centre for Criminological Research, Sheffield University. ix

Contributors

Simon Bronitt is the Deputy Dean (Research) at the TC Beirne School of Law, University of Queensland (UQ), Brisbane, Australia. Before joining UQ in 2013, he served as the Director of the Australian Research Council Centre of Excellence in Policing and Security (2009–2014) based at Griffith University. Prior to moving to Queensland, he was a member of the Australian National University College of Law (1991–2009). Drawing on comparative and interdisciplinary perspectives, he has published widely on criminal justice topics ranging across terrorism law and human rights, comparative criminal law, covert policing, family violence, and mental health policing. His key publications include two textbooks, (with B McSherry) Principles of Criminal Law (3rd edn, Thomson Reuters, Sydney, 2010) and (with S Bottomley) Law in Context (4th ed, Federation Press, Annandale NSW, 2012). Manuel Cancio Meliá is Professor of Criminal Law at the Universidad Autónoma de Madrid (UAM). He holds a Licenciado en Derecho (UAM, 1991), and Doctor en Derecho (PhD; UAM, 1997). His extensive writings (books, chapters, articles, case discussions, as an author and/or editor), on criminal law principles, criminal law legal dogmatics, comparative criminal law studies, European criminal law, and several single offences (sexual crimes, terrorism, personal injuries, crimes against the environment, organised crime) have been published in Spain, most countries of Latin America, Germany, the US, Italy, Portugal, Belgium, UK, Turkey, Taiwan, and PR China. He was a Research Fellow of the German Academic Exchange Service (DAAD; Universität Bonn, 1992/1993, 1998) and Alexander-von-Humboldt Research Fellow (2002/2009) and has been awarded three honorary doctorates. He is a member of the advisory boards of several Spanish, Latin American, and German Journals on Criminal Law and Secretary of the Criminal Law Section of the Spanish Royal Academy for Jurisprudence and Legislation. Maura Conway is a Senior Lecturer in International Security in the School of Law and Government at Dublin City University and Principal Investigator on VOX-Pol, a major EUfunded project on violent online political extremism. Her principal research interests are in the area of terrorism and the internet, including academic and media discourses on cyberterrorism, the functioning and effectiveness of violent political extremist online content, and violent online radicalisation. She has presented upon these issues before the UN, the Commission of the European Union, the Royal United Services Institute in London, and elsewhere. Her journal articles have appeared in, amongst others, Current History, First Monday, Media,War & Conflict, and Parliamentary Affairs. Michael Crowley is the Project Coordinator for the Bradford Non-Lethal Weapons Research

Project, where he is responsible for coordinating the organisation’s research in non-lethal and less lethal weapons utilised by law enforcement, security and military forces, and non-state actors. He also is a Senior Research Associate at the Omega Research Foundation and previously held positions at Verification Research, Training and Information Centre (VERTIC) and the British American Security Information Centre. Mr Crowley is a PhD candidate at Bradford University, where he primarily explores mechanisms for the regulation of riot control agents, incapacitants, and related means of delivery. He received his MRes in research studies from Bradford University and a BSc in genetics from Liverpool University in 1987. Malcolm Dando is Professor of International Security at the University of Bradford. A

biologist by original training, his main research interest is in the preservation of the prohibitions embodied in the Chemical Weapons Convention and the Biological Weapons Convention at a x

Contributors

time of rapid scientific and technological change in the life sciences. His recent publications include Deadly Cultures: Biological Weapons Since 1945 (Harvard University Press, Cambridge, MA and London, 2006), which he edited with Mark Wheelis and Lajos Rozsa. Fergal Davis is a Senior Lecturer and Director of the Parliaments Project at the Gilbert + Tobin Centre of Public Law in the University of New South Wales,Australia. His research has focused on counter-terrorism and human rights with a particular focus on Australia, Ireland, and the UK. His major published works include The History & Development of the Special Criminal Court – 1921–2005 (2nd edn, Four Courts Press, Dublin, 2014), (with N McGarrity and G Williams), Surveillance, Counter-Terrorism and Comparative Constitutionalism (Routledge, Abingdon, 2014) and (with F de Londras) Critical Debates on Counter-Terrorist Judicial Review (Cambridge University Press, Cambridge, 2014). Brice Dickson has been Professor of International and Comparative Law at Queen’s University

Belfast since 2005. He served as the first Chief Commissioner of the Northern Ireland Human Rights Commission from 1999 to 2005. He currently serves as an independent member of the Northern Ireland Policing Board and of the Privacy Advisory Committee of Northern Ireland’s Department of Health, Social Services and Public Safety. In recent years his publications have focused on judicial activism in the highest courts. He is the editor of Judicial Activism in Common Law Supreme Courts (Oxford University Press, Oxford, 2007), co-editor of The Judicial House of Lords 1879–2009 (Oxford University Press, Oxford, 2009), and author of The European Convention on Human Rights and the Conflict in Northern Ireland (Oxford University Press, Oxford, 2010) and Human Rights and the United Kingdom Supreme Court (Oxford University Press, Oxford, 2013). He is currently working on a study of the Supreme Court of Ireland. Federico Fabbrini is Associate Professor of European & International Law at iCourts (Center

of Excellence on International Courts) – Faculty of Law, University of Copenhagen and he is the Coordinator of the Research Group on ‘Constitutional Responses to Terrorism’ within the International Association of Constitutional Law. He holds a PhD in Law from the European University Institute and, before joining iCourts, he was an Assistant Professor of European & Comparative Constitutional Law at Tilburg Law School. His major publications include (with D Cole and A Vedaschi) Secrecy, National Security and the Vindication of Constitutional Law (Edward Elgar, Cheltenham, 2013), (with M Adams and P Larouche), The Constitutionalization of European Budgetary Constraints (Hart Publishing, Oxford, 2014), and Fundamental Rights in Europe: Challenges and Transformations in Comparative Perspective (Oxford University Press, Oxford, 2014). Steven Greer is Professor of Human Rights at the University of Bristol Law School. He has taught at several UK universities, held visiting appointments in West Germany, Australia, and France, and delivered guest lectures and academic papers all over the world including the Middle East, China, and the US. He is Fellow of the Academy of Social Sciences and Fellow of the Royal Society of Arts, has acted as consultant/advisor to various organisations, and has published widely, particularly in the fields of criminal justice, human rights, and law and terrorism. Two of his books, Supergrasses: A Study in Anti-Terrorist Law Enforcement in Northern Ireland (Clarendon Press, Oxford, 1995) and The European Convention on Human Rights: Achievements, Problems and Prospects (Cambridge University Press, Cambridge, 2006) were shortlisted for prizes.

xi

Contributors

Oren Gross is the Irving Younger Professor of Law and the Director of the Institute for

International Legal & Security Studies at the University of Minnesota Law School. He is an internationally recognised expert in the areas of international law and national security law. His book, Law in Times of Crisis: Emergency Powers in Theory and Practice, co-authored with Professor Fionnuala Ní Aoláin, was published by Cambridge University Press in 2006 and was awarded the prestigious Certificate of Merit for Preeminent Contribution to Creative Scholarship by the American Society of International Law in 2007. His latest book (co-edited with Professor Ní Aoláin), Guantánamo and Beyond: Exceptional Courts and Military Commissions in Comparative and Policy Perspective, was published by Cambridge University Press in 2013. He is a member of both the NewYork and Israeli bars. In 2008 he was elected as a member of the American Law Institute (ALI). Elspeth Guild is an internationally acknowledged expert in the field of European immigration

law. She is Jean Monnet Professor of European Migration Law at the University of Nijmegen, Professor at Queen Mary University of London and partner at Kingsley Napley LLP. She previously acted as Special Advisor to the House of Lords Inquiry into Economic Migration in the EU, and is currently involved in training judges in EU law. She is frequently requested to make submissions to parliamentary committees on the subject and she acts as an occasional expert to international organisations such as the European Commission, UNHCR, and the Council of Europe. Amos Guiora is Professor of Law and Co-Director of the Center for Global Justice at the S.J.

Quinney College of Law, the University of Utah. Guiora, who teaches Criminal Procedure, International Law, Global Perspectives on Counterterrorism and Religion and Terrorism incorporates innovative scenario-based instruction to address national and international security issues and dilemmas. He is the author of, inter alia, Fundamentals of Counterterrorism; Constitutional Limits on Coercive Interrogation (Oxford University Press, Oxford, 2008); Legitimate Target: A Criteria Based Approach to Targeted Killing; Freedom from Religion: Rights and National Security (Oxford University Press, Oxford, 2013); Global Perspectives on Counterterrorism (2nd edn, Aspen, Denver, 2011); Homeland Security: What is it and Where is it Going (CRC, Boca Raton, 2011); Tolerating Intolerance: The Price of Protecting Extremism (Oxford University Press, Oxford, 2013); and Geopolitics and Security: Sovereignty, Intervention and the Law (Taylor & Francis, London, 2013). Saskia Hufnagel is a Lecturer in Criminal Law at Queen Mary University London. She

previously worked as a Research Fellow at the Australian Research Council Centre of Excellence in Policing and Security, Griffith University, Australia, and was a Leverhulme Fellow at the University of Leeds. During the completion of her PhD she taught at the Australian National University (ANU) College of Law and between 2009 and 2011 she held a permanent teaching position at the University of Canberra. Her main research areas encompass law enforcement cooperation in Asia, North America, the EU, and Australasia, comparative constitutional and human rights law with a focus on terrorism legislation, and the policing of art crime. She has widely published on national and international police cooperation, security, comparative constitutional law, and art crime including Policing Cooperation Across Borders: Comparative Perspectives on Law Enforcement within the EU and Australia (Ashgate, Farnham, 2013) and the co-edited, Emergency Law (Ashgate, 2012). She is a qualified German legal professional and accredited specialist in criminal law.

xii

Contributors

John Ip is a Senior Lecturer at the University of Auckland Faculty of Law and co-editor of the

New Zealand Law Review. His research interests are: counter-terrorism and constitutionalism, comparative counterterrorism law, and popular depictions of legal issues arising out of post9/11 counter-terrorism. David Jenkins is an Associate Professor of Comparative Law at the University of Copenhagen,

Faculty of Law. He is an attorney at law in the United States, and earned his JD from Washington and Lee University School of Law. In addition to MAs in both history and political science from Marshall University, he holds the LLM and Doctor of Civil Law (DCL) degrees from McGill University’s Institute of Comparative Law in Montréal. He has published multiple articles regarding comparative constitutional law, with a focus on emergency theory, antiterrorism measures, and the separation of powers. He co-edited The Long Decade: How 9/11 Changed the Law (Oxford University Press, Oxford, 2014). Mordechai Kremnitzer is Vice President of Research at the Israel Democracy Institute, where he has been a Senior Fellow since 1994 and currently heads the following projects: Democratic Principles, National Security and Democracy, Arab-Jewish Relations, and Proportionality in Public Policy. He is Professor Emeritus at the Hebrew University of Jerusalem Faculty of Law and was Dean of the Faculty from 1990 to 1993. He studied law at the Hebrew University of Jerusalem, from which he received his PhD in 1980. During 1970 to 1977 he served in the Israel Defense Forces, inter alia as Deputy Chief Prosecutor and as a military judge. Professor Kremnitzer has served as chairman of many public committees. He is also a member of the scientific advisory board of the Max Planck Institute for Foreign and International Criminal Law in Freiburg, Germany. He has published extensively in the fields of criminal, military, and public law, including the co-authored Incitement, Not Sedition (Israel Democracy Institute, Jerusalem, 2002) and Basic Law:The Army – a Commentary (Sacher Institute, Jerusalem, 2000). Tim Legrand is a Lecturer at the National Security College, Crawford School of Public Policy at the Australian National University, Canberra. His research is concerned with international policy transfer, evidence-based policy-making, and the domestic and transnational dimensions of security policy governance in the Anglosphere with particular focus on counter-terrorism and critical infrastructure protection. His research has been published in leading international journals including Public Administration, Policy Studies, British Politics, European Political Science, and the Journal of Comparative Policy Analysis. He is also the co-editor (with Professor Allan McConnell) of Emergency Policy (Ashgate, Farnham, 2012) and has contributed a number of chapters to edited collections. Dr Legrand currently holds adjunct positions as Associate Professor at the Institute for Governance and Policy Analysis at the University of Canberra and Research Fellow at Griffith University. Genevieve Lennon is Chancellor’s Fellow at the School of Law, University of Strathclyde. She

holds a PhD in law from the University of Leeds. Her research expertise lies in the areas of counter-terrorism law and policy, in particular in relation to human rights, accountability, and counter-terrorist policing. She has published and presented on various aspects of counterterrorism and policing. She was an invited attendee at Home Office/Homeland Security workshops on ‘Greenfield Aviation Security 2027’ (2010). She is currently co-authoring a monograph, Protective Security against Terrorism (Cambridge University Press). She is on the editorial board of Criminology and Criminal Justice.

xiii

Contributors

Mariona Llobet-Anglí is Assistant Professor of Criminal Law and Criminology at the Pompeu Fabra University (Barcelona) and also at the Universidad Autónoma de Madrid. She is an expert on terrorism. Her doctoral thesis dealt with terrorism and the limits of ius puniendi in countries governed by the rule of law (entitled Derecho Penal del Terrorismo, La Ley, Madrid, 2010). She has since published on terrorism and on other criminal law fields in specialised law journals and collective books. She has held a research fellowship at the New York University and the Università degli Studi di Milano and a visiting academic at universities in Spain and South America. Stuart Macdonald is Associate Professor in Law and Deputy Director of the Centre for Criminal Justice and Criminology at Swansea. He is co-director of the multidisciplinary cyberterrorism research project (www.cyberterrorism-project.org) and co-editor of Cyberterrorism: Understanding, Assessment and Response (Springer, New York, 2014) (with L Jarvis and T Chen) and Terrorism Online: Politics, Law and Technology (Routledge,Abingdon, 2015) (with L Jarvis and T Chen). His recent project on security and liberty was funded by the British Academy, and he has held visiting scholarships at Columbia University Law School, New York, and the Institute of Criminology at the University of Sydney. Simon McKay is a civil liberties lawyer who has acted and continues to act in a large number of high profile cases in the UK, including R v Clegg [1995] (British paratrooper accused of murder whilst on duty), the Porton Down Inquiry (death of a serviceman from Sarin poisoning at defence human research establishment), the MPs expenses scandal, and the recent Supreme Court decision of R (BSkyB) v Metropolitan Police [2014] (secret hearings for purposes of obtaining production orders). He is a former legal adviser to the British government on national security related issues. He is author of Covert Policing Law & Practice (2nd edn, Oxford University Press, 2015) and widely published in a number of peer-reviewed journals. He has co-written chapters (with C Walker) for the J Pearse (ed.), Investigating Terrorism (Wiley, Chichester, 2015) and is a contributing author to the forthcoming Handbook of Intelligence Law (Boorberg Press, Stuttgart). Aniceto (Setu) Masferrer is Professor of Legal History at the Faculty of Law, University of

Valencia. He has authored seven books and edited five (including Post 9/11 and the State of Permanent Legal Emergency (Springer, New York, 2012) and Counter-Terrorism, Human Rights and the Rule of Law (Edward Elgar, Cheltenham, 2013)) and has written numerous articles published in Spanish, European, and American law journals. His main focus is on criminal law, codification, and fundamental rights. He has been a visiting professor/scholar at a number of institutions, including the University of Cambridge and Harvard Law School. He is on the boards of several international law journals and is Chief Editor of GLOSSAE, European Journal of Legal History. He is president of the European Society for Comparative Legal History, and vice-president of the Fundación Universitas. He is Director of the Institute for Social, Political and Legal Studies, a member of the Spanish Royal Academy of Jurisprudence and Legislation, and of the Valencian Committee for European Affairs. Jon Moran is Reader in Security Studies at the Department of Politics and International Relations at the University of Leicester. He is the author of Policing the Peace in Northern Ireland (Manchester University Press, 2008) and From Northern Ireland to Afghanistan. British Military Intelligence, Ethics and Human Rights (Ashgate, Farnham, 2013). His research interests are in the areas of security, intelligence, and the state and civil liberties. He also retains an interest in xiv

Contributors

corruption and is the author of Crime and Corruption in New Democracies.The Politics of Insecurity (Palgrave, London, 2011). Fionnuala Ní Aoláin holds the Dorsey and Whitney Chair in Law at the University of

Minnesota Law School and is concurrently Professor of Law at Ulster University’s Transitional Justice Institute. Her book Law in Times of Crisis with Professor Oren Gross (Cambridge University Press, 2006) was awarded American Society of International Law’s Certificate of Merit for creative scholarship (2007). She is co-author of On the Frontlines: Gender, War and the Post Conflict Process (Oxford University Press, Oxford, 2011) and co-editor (with Gross), of Guantánamo and Beyond: Exceptional Courts and Military Commissions in Comparative and Policy Perspective (Cambridge University Press, Cambridge, 2013). She was appointed by the UN Secretary-General as Special Expert on promoting gender equality in times of conflict and peace-making (2003).The Irish government has nominated her twice to the European Court of Human Rights (2004 and 2007). She served on the Executive Council of the American Society of International law from 2010 to 2013. She is Board Chair of the Open Society’s Women’s Program. Anneke Petzsche is a Research Assistant and Lecturer at Humboldt-University, Berlin. She

finished her PhD in 2013 on German, English, and Spanish anti-terrorism law for which she was awarded a scholarship from the ‘Studienstiftung des Deutschen Volkes’. During 2011, she undertook research visits at the University of Leeds and the Universidad Autónoma de Madrid. Her PhD is titled Strafrecht und Terrorismusbekämpfung – Eine vergleichende Untersuchung der Bekämpfung terroristischer Vorbereitungshandlungen in Deutschland, Großbritannien und Spanien and was published in 2013. She has also published various articles on the subject matter of terrorism and hosted together with Professor Heger an international ‘trialogue on terrorism’ at Humboldt University in January 2015. Abdul Razak Ahmad is a qualified legal counsel, having trained in Malaysia, the UK, and Switzerland and practised as a solicitor with the firm of Battemberg and Talma in Singapore. He then returned to Malaysia to serve as an academic. He was later seconded to the Government of Malaysia where he served on the National Economic Action Council (NEAC) of the Prime Minister’s Department as a Consultant to the Special Consultancy Team on Globalisation. Abdul Razak also serves as an academic at the National Defence University Malaysia. His research interests cover international security, counter-terrorism policy, non-traditional security issues, migration, and public policy. On the international front, Abdul Razak currently serves as an advisor to the Government of Libya, a member of the Bahrain Forum on Islam and Development, and is engaged by Association of Southeast Asian Nations (ASEAN) as a resource specialist to help prepare the ASEAN Plan of Action for Counter-Terrorism. Javaid Rehman is Professor of Islamic Law, Muslim Constitutionalism and Human Rights at Brunel University London. He is also the director of the Brunel University Research Centre: Security, Media and Human Rights. During 2009 to 2013, Professor Rehman was the Head of School of Law, Brunel University and a member of Brunel University Senior Management. Professor Rehman has written extensively on the subject of Islamic Law, international human rights, and minority rights, with over 100 publications to his credit. His recent works include Islamic State Practices, International Law and the Threat from Terrorism (Hart Publishing, Oxford, 2005), (with SC Breau) (eds) Religion, Human Rights and International Law (Nijhoff, xv

Contributors

Dordrecht, 2007), and International Human Rights Law (2nd edn, Longman, London, 2010). He is on the editorial boards of several journals. Kent Roach FRSC, holds the Prichard Wilson Chair in Law and Public Policy at the University of Toronto. He is the author of 12 books including September 11: Consequences for Canada (McGill-Queen’s University Press, Montreal, 2003), The Unique Challenges of Terrorism Prosecutions (Government of Canada, Ottawa, 2010) and The 9/11 Effect: Comparative CounterTerrorism (Cambridge University Press, Cambridge, 2011). Among other volumes, he is the editor of Comparative Counter-Terrorism Law (Cambridge University Press, forthcoming, 2015) and co-editor of Global Anti-Terrorism Law (2nd edn, Cambridge University Press, Cambridge, 2012) as well as many articles on terrorism-related topics published in Australia, Canada, Europe, Hong Kong, India, Singapore, and South Africa. He served on the research advisory committee for Canada’s inquiry into the rendition of Maher Arar to Syria and as research director (legal studies) for its inquiry into the bombing of Air India Flight 182. Lina Saba-Habesch studied law at the Hebrew University, where she completed both her

bachelor and MA degrees. She did her internship at the Criminal Department of the prosecutor office in Haifa and practised law as a prosecutor there for another three years before moving to Jerusalem. Soon afterwards, she joined the Israeli Democracy Institute (IDI). At the IDI, she worked as a research assistant to Professor Mordechai Kremnitzer on a project titled ‘Terror and Democracy’. She is currently studying for a PhD in a joint program between the Hebrew University in Jerusalem and FRI University in Berlin on detention of security suspects. Ben Saul is Professor of International Law and an Australian Research Council Future Fellow at the University of Sydney. Ben has expertise on terrorism, human rights, armed conflict, the use of force, international crimes, the environment, and the UN. He is the author of Defining Terrorism in International Law (Oxford University Press, Oxford, 2006), lead co-author of The International Covenant on Economic, Social and Cultural Rights: Commentary, Cases and Materials (Oxford University Press, Oxford, 2014), and editor of Research Handbook on International Law and Terrorism (Edward Elgar, Cheltenham, 2014). He has published ten books, 80 scholarly articles, and his research has been used in numerous courts. He has taught at Oxford, The Hague Academy of International Law, and in China, India, Nepal, and Cambodia, and has been a visiting professor at Harvard. He practises as a barrister, has advised UN bodies, governments and non-governmental organisations, and often appears in the media. He has a doctorate from Oxford and honours degrees in Arts and Law from Sydney. Joshua Skoczylis is a Lecturer in Criminology at the University of Lincoln researching and

teaching on terrorism, policing, and prevention. He has recently received his PhD from the University of Leeds, focusing on counter-terrorism policing and prevention. Prior to this he read for an MSc in Criminology and Criminal Justice at the University of Oxford and also read for a BA on the same subject at the University of Central Lancashire. He continues to work in the field of Criminal Justice as a Magistrate and currently serves on the Lincolnshire Bench. He previously worked as a Special Constable for Merseyside Police and for local authorities in Blackburn. Peter Sproat is Lecturer in Policing at the University of the West of Scotland. His research

interests include anti-money-laundering and counter-terrorist finance, the policing of organised

Contributors

crime, and terrorism. He has published peer-reviewed articles and book chapters on these topics and others including asset recovery, on terrorism, genocide, and the right to self-determination in international law. Mark G Stewart is Professor of Civil Engineering and Director of the Centre for Infrastructure

Performance and Reliability at the University of Newcastle in Australia and an Australian Research Council Professorial Fellow. He is the author, with RE Melchers, of Probabilistic Risk Assessment of Engineering Systems (Chapman & Hall, London, 1997), and more than 300 technical papers and reports. He has more than 25 years of experience in probabilistic risk and vulnerability assessment of infrastructure and security systems that are subject to man-made and natural hazards. He has received over $3 million in Australian Research Council (ARC) support in the past 10 years. Since 2004, Mark has received extensive ARC support to develop probabilistic risk-modelling techniques for infrastructure subject to military and terrorist explosive blasts and cost-benefit assessments of counter-terrorism protective measures for critical infrastructure. In 2011, he received a five-year Australian Professorial Fellowship from the ARC to continue and to extend that work. Lyal S Sunga is Special Advisor on Human Rights and Humanitarian Law at the International

Development Law Organization in Rome, and Visiting Professor at the Raoul Wallenberg Institute for Human Rights and Humanitarian Law in Lund. From 1994 to 2001, he worked for the UN Office of the High Commissioner for Human Rights in Geneva, and then taught at the University of Hong Kong Faculty of Law. In 2007, he served as Coordinator for the UN Human Rights Council’s Group of Experts on Darfur. Over the last 25 years, he has worked or consulted with the UN Security Council, Office of the United Nations High Commissioner for Human Rights, United Nations Development Programme, United Nations Democracy Fund, United Nations University, UN High Commissioner for Refugees, United Nations Institute for Training and Research, United Nations Office on Drugs and Crime, the International Labour Organization, EU and International Development Law Organization as well as with several national human rights commissions. He has authored two books: Individual Responsibility in International Law for Serious Human Rights (Martinus Nijhoff, The Hague, 1992) and The Emerging System of International Criminal Law (Martinus Nijhoff,The Hague, 1997). Steve Swain is a retired Chief Superintendent from the Metropolitan Police; his last post was

as the Head of the Police International Counter Terrorist Unit (PICTU), a joint national police and MI5 unit, with responsibility for designing counter-terrorist policing options for the UK. He has a substantial breadth and depth of experience in the security and counter-terrorism field and is currently engaged in a number of ventures across the security sector. These include helping security sector small and medium-sized enterprises gain more traction and visibility in the marketplace, working with a software company on business development in the law enforcement sector, a subject matter expert on two terrorism-related EU 7th Framework Programme (FP7) security projects, delivering two BTEC certificated courses – one on Disaster Recovery and Business Continuity and one on Security Management – for a UK-based training company, and undertaking security strategy development and risk assessment for a London-based architectural design company. Stephen I Vladeck is a Professor of Law at American University Washington College of Law

and co-Editor-in-Chief of the Just Security blog. His teaching and research focus on federal jurisdiction, constitutional law, and national security law. A nationally recognised expert on the xvii

Contributors

role of the federal courts in the war on terrorism, Vladeck’s prolific and widely cited scholarship has appeared in an array of legal publications – including the Harvard Law Review and the Yale Law Journal – and his popular writing has been published in forums ranging from the New York Times to BuzzFeed. Vladeck, who is a co-editor of Aspen Publishers’ leading national security law and counter-terrorism law casebooks, is a 2004 graduate of Yale Law School, and received a BA summa cum laude in History and Mathematics from Amherst College in 2001, where his senior thesis examined ‘Leipzig's Shadow: The War Crimes Trials of the First World War and Their Implications from Nuremberg to the Present’. Clive Walker is Professor Emeritus of Criminal Justice Studies at the School of Law, University of Leeds, where he served as the Director of the Centre for Criminal Justice Studies (1987–2000) and as Head of School (2000–2005, 2010). He has written extensively on terrorism issues, with many published papers and books not only in the UK but also in many other jurisdictions, especially Australia and the US, where he has been a visiting professor at George Washington, Melbourne, New South Wales, and Stanford Universities. He has served as special adviser to the UK Parliamentary select committee system and is also Special Adviser to the UK Independent Reviewer of Terrorism Legislation. His main books related to terrorism and emergencies include The Civil Contingencies Act 2004: Risk, Resilience and the Law in the United Kingdom (Oxford University Press, Oxford, 2006); Terrorism and the Law (Oxford University Press, Oxford, 2011); and The Anti-Terrorism Legislation (3rd edn, Oxford University Press, Oxford, 2014).

xviii

Preface

Among the magnetic qualities of terrorism are its capacity to distort the compass of anyone who is attracted to it, for bad reasons or for good. Policy-makers neglect orthodox cost-benefit tools, devoting ever more resources to the unattainable goal of zero risk. Parliaments stretch the limits of police powers, or formulate criminal offences when none would normally exist.The media accords to ‘terror’ an air of lurid panic never attributed to organised crime or even to homicide. Four ‘P’s form the backbone of the UK’s much-imitated counter-terrorism strategy, and of this Handbook: Pursue, Prevent, Protect and Prepare.The second of those is the most important in the long run, for whilst terrorist movements all come to an end eventually, neither law enforcement, nor target-hardening nor resilience can achieve this without a change to hearts and minds. However, the proper role of Government in preventing terrorism is hotly debated: all the more so as techniques such as bulk data analysis and the stationing of informers by the supposed ‘conveyor belt to radicalisation’ take it closer to a fifth, and as yet unacknowledged, ‘P’: Predict. Yet the threat cannot be dismissed as unreal. Had the viable transatlantic bomb plot of 2006 been successful, thousands of air passengers would have lost their lives, with who knows what consequences. Low-level separatist and sectarian conflicts – or their after-shocks, as in Northern Ireland – continue to claim lives and promote insecurity across the world. Thousands of young Muslims in Europe show their support for the grotesque savageries of groups such as ISIL, al-Shabaab and Boko Haram, whether by travelling to join in, or by plotting, atrocities on the home front. To function reliably in these swirling magnetic fields, any legal or ethical compass must be well-shielded against distortion. It is difficult to imagine a book better adapted to that purpose than this one. Its historical and comparative perspectives and the sheer breadth of its range lend it weight and authority. It will be a vital tool not just for scholars but for legislators, policymakers and practitioners everywhere. David Anderson QC Independent Reviewer of Terrorism Legislation, London

xix

This page intentionally left blank

1 Introduction Genevieve Lennon and Clive Walker

Framing the law and terrorism Triggering events Terrorism laws have proliferated since the events of 9/11. Those attacks were deemed to demonstrate to the world not only a heightened risk of terrorism but also need for imperative action by all states. That message was promulgated immediately by the United Nations Security Council which, by Resolution 1368 on 12 September 2001,‘Call … on the international community to redouble their efforts to prevent and suppress terrorist acts including by increased cooperation and full implementation of the relevant international anti-terrorist conventions…’. Further details followed in Resolution 1373 of 28 September 2001, which required compliance with international laws against terrorism financing, the passage of domestic laws against recruitment and other forms of support, no safe havens, and the institution of the CounterTerrorism Committee (CTC) to chivvy national implementation. This intervention demanded a substantial augmentation of pre-existing requirements to impose economic sanctions on those linked to the Taliban and Al Qa’ida.1 The international clamour for action by no means ended in 2001, and aside from the ongoing activities of the CTC, new demands have been issued in 2005 for laws against the incitement and glorification of terrorism2 and in 2014 against the phenomenon of foreign terrorist fighters being exported to theatres of conflict such as Iraq and Syria.3 Expressions of concern about the impact on human rights have tended to take longer to develop, whether in international or domestic laws.4 Leaving aside to other works the development and implementation of the international law against terrorism,5 this Handbook focuses upon the domestic law reactions to terrorism that

1 2 3 4

5

See UNSCR 1267 of 15 October 1999, as amended by UNSCR 1333 of 19 December 2000 and UNSCR 1989 of 17 June 2011. See UNSCR 1624 of 14 September 2005. See UNSCR 2178 of 24 September 2014. See UNSCR 1456 of 20 January 2003. See also UN Commission on Human Rights resolution 2005/80, appointing the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism. See AM Salinas de Frías, K Samuel and N White, Counter-Terrorism: International Law and Practice (Oxford University Press, Oxford, 2012); B Saul (ed.), Research Handbook On International Law and Terrorism (Edward Elgar, Cheltenham, 2014). 1

Genevieve Lennon and Clive Walker

have flowed from these triggering events. Our mission is to deliver an authoritative, comprehensive, and critical analysis of how laws are, and ought to be, invoked in domestic jurisdictions against terrorism. In furtherance of that objective, we shall next consider the framing concepts that have impacted on the manifold reactions of states.

Potential framing concepts In the days after 9/11, it seemed that a binary between either ‘Total War on Terror’ or ‘Total Counter-Terrorism’ was presented as the fundamental frameworks to be selected. The ‘Total War on Terrorism’ was adopted as the headline US reaction by President George W Bush on 20 September 2001:6 Our war on terror begins with al Qaida, but will not end until every terrorist group has been found, stopped and defeated… And we will pursue nations that provide aid or safe havens to terrorists. Every nation, in every region, now has a decision to make: either you are with us, or you are with the terrorists. The rhetoric of this ‘Global War on Terror’, as it became known, has been considerably toned down since President Obama assumed office in 2009.7 But, with drones still busy and detention facilities in Guantánamo Bay still populated, the overall stance cannot yet be depicted as ‘postwar’.8 Other countries too have played a part in the ‘Total War on Terror’, especially by participating in the conflict in Afghanistan (and latterly in Iraq and Syria against Islamic State) and also by facilitating US activities relating to irregular rendition and detention.9 Conversely, the alternative approach of bringing terrorist leaders before international criminal courts remains untested, albeit that the then UN High Commissioner for Human Rights, Mary Robinson, considered that crimes against humanity under the Rome Statute 1998, article 7, had been perpetrated on 9/11.10 However, even in the US,11 domestic counter-terrorism laws have been reinforced (especially by the USA PATRIOT Act 2001),12 and it is this option of ‘Total Counter-Terrorism’ that is explored in this book reflecting, overall, a drift from the ‘Total War on Terror’ to ‘Total Counter-Terrorism’. Before exploring further, it might be questioned whether this drift from one approach to another is desirable or not. On the one hand, military deployment against terrorism can enjoy some advantages. It meets some public and media expectations for severe and punitive action, 6 7

8 9 10 11

12

2

Address to a Joint Session of Congress, http://georgewbush-whitehouse.archives.gov/news/ releases/2001/09/20010920-8.html accessed 20 December 2014. See Review and Disposition of Individuals Detained at the Guantánamo Bay Naval Base and Close of Detention Facilities and for a Review of Detention Policy Options Executive Orders 13492 and 13493 (74 Federal Register 4897 and 4901). Compare RM Chesney, ‘Postwar’ (2014) 5 Harvard National Security Journal 305. For indications of the scale of this activity, see Senate Select Committee on Intelligence, Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program (Washington DC, 2014). M Robinson, Five Years on from 9/11 (JUSTICE, London, 2006) 4. See JD Shipman, ‘Taking terrorism to court’ (2008) 86 North Carolina Law Review 526. However, there are restraints on the extent to which ‘Total Counter-Terrorism’ can replace the ‘Total War on Terror’: see National Defense Authorization Act for Fiscal Year 2011, s 1032 (‘Prohibition on the use of funds for the transfer or release of individuals detained at United States Naval Station, Guantanamo Bay, Cuba’), PL 111–383. Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (PL 107–56).

Introduction

which may foment dissent and deterrence amongst the terrorists. On the other hand, the ‘Total War on Terrorism’ approach tends to involve blunt military instruments, the effectiveness of which can be questioned. Recently, the House of Commons Defence Committee report, Securing the Future of Afghanistan, concluded that after a decade or so of involvement, ‘The best the UK can do is to withdraw in good order and engage with external partners to improve the chances of Afghanistan going forward.’13 Likewise, President Karzai mused in October 2013 about a failed mission that had left his country unstable.14 This mode of approach is also highly controversial because of its disregard for the regular safeguards of civil society and international law.15 The doctrine of the ‘Global War on Terror’ was consequently rejected by the UK former Foreign Secretary, David Miliband, who stated that ‘the notion is misleading and mistaken. The issue is not whether we need to attack the use of terror at its roots, with all the tools available. We must. The question is how.’16 The ‘Total Counter-Terrorism’ approach is meant to reflect some recognition of the importance of broader concepts of ‘human security’.17 One might find some resonance here with more philosophical approaches to the meanings of security as sûreté and securité, translated as notions that by sûreté, citizens gain security only through Hobbesian sovereign power, whereas that sûreté can threaten the securité of the individual in the Lockean perspective of a citizen requiring protection against the state.18 In order to impose a clear and coherent framework upon the delivery of ‘Total CounterTerrorism’ in substance, this book adopts a policy-driven strategic approach. Counter-terrorism strategic policy provides for the most rational and coherent way of making sense of the relevant laws, even though this basis for rationalisation is post hoc, given that crisis events have often been the true prompt for new laws. One of the clearest and most sophisticated expositions of domesticated counter-terrorism strategy can be found in the UK’s Countering International Terrorism strategy documentation (‘CONTEST’), which was first published in 2006.19 Delivery of the strategy continues to be organised around four principal workstreams as follows: • • • •

Pursue: to stop terrorist attacks. Prevent: to stop people becoming terrorists or supporting violent extremism. Protect: to strengthen our protection against terrorist attack. Prepare: where an attack cannot be stopped, to mitigate its impact.

The CONTEST framework has been highly influential, being reflected, if not reproduced wholesale, elsewhere. Thus, the European Union Counter Terrorism Strategy 2005 commits the EU ‘[t]o combat terrorism globally while respecting human rights, and make Europe safer,

13 14 15 16 17 18 19

(2012–13 HC 412) para 151. T Coghlan, ‘Your troops died in vain’, says Karzai, as he castigates allies; Afghanistan ‘remains unstable and insecure’ The Times (London, 8 October 2013) 8. See Allen, FA, The Habits of Legality (Oxford University Press, New York, 1996) 37–40. The Guardian (London, 15 January 2009), 29. See A Zwitter, Human Security, Law and the Prevention of Terrorism (Routledge, Abingdon, 2010). See M Foucault, Securité, Territoire, Population (Seuil, Paris, 2004). Home Office, Pursue, Prevent, Protect, Prepare: The United Kingdom’s Strategy for Countering International Terrorism (Cm 7547, London, 2009) para 7.07. See also Home Office, Countering International Terrorism (Cm 6888, London, 2006), The United Kingdom’s Strategy for Countering International Terrorism (Cm 7833, London, 2010), (Cm 8123, London, 2011), (Cm 8583, London, 2013), (Cm 8848, London, 2014). 3

Genevieve Lennon and Clive Walker

allowing its citizens to live in an area of freedom, security and justice’.20 While Member States retain the primary responsibility for combating terrorism, the EU role is important and comprises: strengthening national capabilities; facilitating European cooperation; developing collective capability; and promoting international partnership. The Strategy is divided into the four pillars: ‘Prevent’, ‘Protect’, ‘Pursue’, and ‘Respond’. This taxonomy sounds very redolent of the CONTEST approach and in substance is identical since ‘Respond’ covers the ‘Prepare’ agenda. Next, the US National Strategy for Combating Terrorism 2006 adopts short-term goals, including killing or capturing terrorists, denying havens and material resources, as well as strengthening resilience (mainly the task of the Department for Homeland Security); the longterm project is to win the battle of ideas, ultimately by ‘the advancement of freedom and human dignity through effective democracy’.21 In this way, ‘Pursuit’, ‘Protect/Prepare’, and ‘Prevent’ are reflected, though the means adopted reveal some marked differences because of the rhetoric of ‘the war on terror’ and its later modulations. Finally, there is the United Nations Global Counter Terrorism Strategy 2006.22 That document places great emphasis on addressing the conditions conducive to the spread of terrorism and state capacity building that must be placed alongside the military and policing measures to prevent and combat terrorism, which were emphasised in September 2001. It also crucially encompasses in Part IV ‘Measures to ensure respect for human rights for all and the rule of law as the fundamental basis of the fight against terrorism’, the absence of which from the mechanisms put in place in 2001 has been an enduring criticism. Overall, the United Nations Global Counter Terrorism Strategy 2006 betrays more similarities than differences to the UK’s CONTEST strategy, though it does emphasise that ‘Pursuit’ and so on must be set within a ‘human security’ context ,which gives emphasis to the root causes of terrorism. The concept of human security remains controversial and has not been broadly incorporated into national legal policy, and so it will be tackled in the context of ‘Prevent’ rather than as a distinct strategy. The canvass on which the laws of ‘Total Counter-Terrorism’ have been inscribed since UNSCR 1373 is vast and complex, so that ‘Total Counter-Terrorism’ has reached the four corners of the world.23 Some indication has already been given of US-based reactions, which have varied from Presidential Military Orders24 pursuant to the ‘Total War on Terror’ through to detailed legislation, such as the USA PATRIOT Act 2001,25 which is designed to bolster

20

21 22 23

24

25

4

(14469/05, Strasbourg, 2005) 2. See further the six monthly reports of the Counter-Terrorism Coordinator on the Implementation of the Strategy and Action Plan to Combat Terrorism (9809/1/05, 14734/1/05, 15704/05, 9589/06, 15266/06, 9666/07, 15411/07, 9416/08, 14862/08, 15912/08, 9715/09, 15538/09) and the EU Counter-Terrorism Strategy—discussion paper (15359/09). (Washington DC, 2006) 8. The original version was published in 2003. UNGA Res 60/288. Source materials may be found at: OSCE Legislation Online www.legislationline.org/ topics/topic/5; UN CTC www.un.org/en/sc/ctc/resources/countryreports.html; UN ODC www.unodc.org/tldb/laws_legislative_database.html accessed 20 December 2014. See Presidential Military Order, Detention,Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 13 November 2001. See further Executive Order 13492, Review and Disposition of Individuals Detained at the Guantánamo Bay Naval Base and Closure of Detention Facilities (22 January 2009); Executive Order 13493, Review of Detention Policy Options (22 January 2009). Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (PL 107–56). See further Intelligence Reform and Terrorism Prevention Act of 2004 (PL 108–458)

Introduction

surveillance, protective security, and criminal prosecutions. The neighbours of the US have been expected to follow suit, and Canada has been an active26 and sometimes overly compliant27 partner. Within Europe, there is a contrast not so much between common law and civil law jurisdictions but rather between jurisdictions that had already experienced a long pre-9/11 history of terrorism28 and those that have been (often reluctant) latecomers to the field.29 The message that specialist counter-terrorism laws are obligatory has also reached Africa,30 Asia,31 and Australasia,32 though it has sometime taken prolonged pressure to achieve results.33 26 27 28

29

30

31

32

33

See Anti-Terrorism Act 2001; Protection of Canada from Terrorists Act 2014. See Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, Report of the Events Relating to Maher Arar (Ottawa, 2006). Those in this category include: France (see Loi no 86-1020 relative à la lutte contre le terrorisme, 9 September 1986; Loi no 96-647 tendant à renforcer la répression du terrorisme et des atteintes aux personnes dépositaires de l’autorité publique ou chargées d’une mission de service public et comportant des dispositions relatives à la police judiciaire, 22 July 1996; Law no. 2001-1062 relative à la sécurité quotidienne, 15 November 2001; Loi no 2003-239 pour la sécurité intérieure, 18 March 2003; Loi no. 2006-64 relative à la lutte contre le terrorisme et portant dispositions diverses relatives à la sécurité et aux contrôles frontaliers, 23 January 2006); Ireland (Offences against the State Acts 1939-72; Criminal Justice (Terrorist Offences) Act 2005; Criminal Justice (Money Laundering and Terrorist Financing) Act 2010); Italy (Legge no 438 Conversione in legge, con modificazioni, del decreto-legge 18 ottobre 2001, no 374, recante disposizioni urgenti per contrastare il terrorismo internazionale, 15 December 2001; Legge no 155 Conversione in legge, con modificazioni, del decreto legge 27 luglio 2005, no 144, recante misure urgenti per il contrasto del terrorismo internazionale, 31 July 2005); Russia (Federal Law No. 115-FZ On Countering Money Laundering and the Financing of Terrorism, 7 August 2001; Presidential Decree No.6 On measures to fulfill the resolution of the UN Security Council No 1373 adopted 28 September 2001, 10 January 2002; Federal Law No. 114 FZ on combating of extremist activity 2002; Federal Law No. 35-FZ on Counteraction of Terrorism, 6 March 2006); Spain (Ley Orgánica 7/2000, sobre la responsabilidad penal de los menores, en relación con los delitos de terrorismo, 22 December 2000; Ley Orgánica de Partidos Políticos 6/2002, 27 June 2002; Ley de prevención y bloqueo de la financiación del terrorismo no 12/2003, 21 May 2003; UK (Terrorism Act 2000;Anti terrorism, Crime and Security Act 2001;Terrorism Act 2006; Counter Terrorism Act 2008). Those in this category might include: Germany (Gesetz zur Bekämpfung des internationalen Terrorismus (Terrorismusbekämpfungsgesetz), 14 December 2001; Gesetz zur Errichtung einer standardisierten zentralen Antiterrordatei von Polizeibehörden und Nachrichtendiensten von Bund und Ländern (Antiterrordateigesetz - ATDG), 22 December 2006; Gesetz zur Erganzung des Terrorismusbekampfungsgesetzes (Terrorismusbekampfungserganzungsgesetz) 5 January 2007; Gesetz zur Verfolgung der Vorbereitung von schweren staatsgefährdenden Gewalttaten, 30 July 2009); Netherlands (Act of 24 June 2004 to amend and supplement the Penal Code and some other laws in connection with terrorist crimes (Crimes of Terrorism Act); Investigation and Prosecution of Terrorist Offences (Extension of Powers) Act 2006; Money Laundering and Terrorist Financing Prevention Act 2008); Sweden (Lag om straff för terroristbrott, 24 April 2003; Lag om straff för offentlig uppmaning, rekrytering och utbildning avseende terroristbrott och annan särskilt allvarlig brottslighet, 11 May 2010). See Ethiopia (Anti Terrorism Proclamation No. 652/2009); Nigeria (Terrorism (Prevention) Act 2011); South Africa (Protection of Constitutional Democracy Against Terrorist and Related Activities Act 2004). See China (Amendment III to the Criminal Law of the People’s Republic of China, 29 December 2001); India (Unlawful Activities (Prevention) Act 1967); Malaysia (Security Offences (Special Measures) Act 2012). See Australia (Suppression of the Financing of Terrorism Act 2002, Border Security Legislation Amendment Act 2002, Telecommunications Interception Legislation Amendment Act 2002, Anti Terrorism Act 2004, Anti-Terrorism Act (No. 2) 2005); New Zealand (Terrorism Suppression Act 2002). See Kuwait (Law No. 106 of 2013 Regarding Anti-Money Laundering and Combating the Financing of Terrorism);Vietnam (Counter-Terrorism Law, No. 28/2013/QH13). 5

Genevieve Lennon and Clive Walker

In response, some authors have attempted to draw up similarities and differences between laws on a global scale,34 or in the common law sphere,35 or in civil law systems.36 Many more have adopted thematic approaches, such as relationships between counter-terrorism laws and human rights, or the role and impact of the judiciary or other branches of state.37 Our own favoured approach tends towards the thematic. Given the scale of law-making since 9/11, it would not be an availing approach to attempt to cover in one book every jurisdiction (or even every ‘leading’ jurisdiction) or every manifestation of counter-terrorism laws. As a result, our main focus will be on some of those jurisdictions that have taken the lead in producing legal innovations and setting legal standards, but, within that context, we shall adopt a thematic approach to the substance of counter-terrorism law, examining categorical approaches rather than specific instances. We shall equally place emphasis upon critical commentaries not only from academic commentators but also from official reviews, whether by specially appointed national reviewers38 or committees or by international officers such as the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism.

Scheme of book contents This Handbook builds upon, but does not purely or exclusively reproduce, the boundaries set by the UK’s CONTEST documentation. Instead it amalgamates the variations in these different statements of policy-driven strategies. It will use ‘Prevent’, ‘Prepare’, ‘Protect’, and ‘Pursue’ as shorthand for the strategic objectives that have been discussed. Adapting therefore from CONTEST, this Handbook is divided into four Parts: ‘The boundaries and strategies of national counter-terrorism laws’; ‘The pursuit of terrorists by criminal process and executive measures’; ‘Protective security’; and ‘Preventive measures’.

Part I: The boundaries and strategies of national counter-terrorism laws Part I will set out the boundaries and strategies relevant to counter-terrorism. A fundamental boundary that applies, no matter which strategies and consequent tactics are adopted, relates to the definition of ‘terrorism’. This is explored in Chapter 2 that examines how ‘terrorism’ came to be conceived of as a legal concept in the mid-twentieth century, expanding across states that experienced national liberation or separatist violence through, in the 1970s and 1980s, to states confronting extreme left-wing or political violence. The chapter charts the various – ultimately 34 35

36

37 38

6

See VV Ramraj and others (eds), Global Anti-Terrorism Law and Policy (2nd ed, Cambridge University Press, Cambridge, 2012). See LK Donohue, The Cost of Counterterrorism: Power, Politics, and Liberty (Cambridge University Press, Cambridge, 2008); K Roach, The 9/11 Effect: Comparative Counter-Terrorism (Cambridge University Press, Cambridge, 2011). See A Oehmichen, Terrorism and Anti-Terror Legislation (Intersentia, Antwerp, 2009); M Wade and A Maljevic, A War on Terror? (Springer, New York, 2010); A Masferrer and C Walker (eds), Countering Terrorism and Crossing Legal Boundaries: Comparative Studies of the Responses to Terrorism and their Categorical Impacts (Edward Elgar, Cheltenham, 2013). See C Gearty, Liberty and Security (Polity, Cambridge, 2013). See especially the work of the Australian Independent National Security Legislation Monitor (www.dpmc.gov.au/pmc/about-pmc/core-priorities/national-security-and-internationalpolicy/independent-national-security-legislation-monitor accessed 20 December 2014) and of the UK Independent Reviewer of Terrorism Legislation (https://terrorismlegislation reviewer.independent.gov.uk/ accessed 20 December 2014).

Introduction

futile – attempts at obtaining an international consensus on the definition, and the use of sectoral counter-terrorism measures. Turning then to conceptions of terrorism since 9/11, measures by the UN Security Council and the question of whether terrorism is a customary international crime are considered alongside analysis of the trends in terms of national legal definitions of terrorism. While a definition serves various functions, including demonstrating societal condemnation and triggering special powers, legal definitions carry great risks to human rights. Additional discussion of the definitions of terrorism in particular jurisdictions and their impact in relation to Pursuit, Prevent, Protect, and Prepare is found across the collection. Drawing in particular on the work of Schmitt and Agamben,39 it has been argued that no limits should be placed on the state’s efforts at self-preservation in the face of exceptional threats. This question of what, if any, limits should be placed on the state in its fight against terrorism, and how the often conflicting objectives of individual freedoms should be weighed against collective security is examined through the lens of the Spanish and British experiences of, and legal reactions, to terrorism in Chapter 3 with a focus on the adoption, in both jurisdictions, of the ‘criminal law of the enemy’.40 This deviation from the ‘criminal law of the citizen’ removes terrorist suspects from regular criminal norms and precepts, viewing them solely as sources of danger. Examples include pre-emptive powers, the curbing of procedural rights, and the severity of sentencing. Such ‘enemy’ law carries significant risks for the conscionable treatment of individuals and the legitimacy of the liberal democratic state. Another boundary, albeit one which has been becoming more blurred, is that between war and terrorism. Chapter 4 examines this increasingly porous interface, analysing the consequences that flow from framing counter-terrorism as war, under the law of armed conflict, or of war as counter-terrorism. The examination of detention, particularly as practised by the allied forces in Iraq and by the US in Guantánamo, use of force and prosecutions reveals the melding (if not confusion) of the law of armed conflict and international human rights law. The chapter highlights the lessening of individual rights as persons are tried, detained, and subject to force, with persons often receiving less protection because of an arbitrary declaration of status and warns that the substitution of counter-terrorism for armed conflict undermines the core objectives of the regulation of warfare and states of violence by international law. Chapter 5 examines how the definition of terrorism upon which these boundaries are constructed has migrated between nations, across time and space, allowing identification of trends and consequential derivations. Particular focus is paid to the impact of the UK, Egyptian, and EU’s definition of terrorism. While transnational bodies, such as the UN Security Council, the EU, and the Financial Action Task Force have encouraged, if not mandated, such migration, the derivations that arise from local political, historical, legal, or social cultures often leads to unexpected consequences. Rather than treating transplantation as failed attempts at harmonisation, it is important to recognise counter-terrorism law as a major site of domestic politics and sovereignty. The remainder of Part I considers the ‘boundaries’ of individual rights and constitutional accountability, which set part of the analytical and critical agenda for all later chapters. Individual human rights have been prominently contested in response to legal coercive and surveillant powers, and much work has been carried out since 9/11 on how rights can co-exist within societies that have become more risk averse and less caring of the treatment of minorities. In a liberal democracy at least, the ultimate test of success or failure of strategies 39 40

See C Schmitt, Political Theology (MIT Press, Cambridge, 1985); G Agamben, The State of Exception (University of Chicago Press, Chicago, 2005) See G Jakobs and MC Melia, Criminal Law of the Enemy (2nd edn, Civitas, Madrid, 2006). 7

Genevieve Lennon and Clive Walker

against terrorism is the maintenance of public support while at the same time respecting the fundamental values on which legitimacy and consensus cohere. Respect for rights is a major source of confidence building both for individuals and for communities. Commentators often talk about the ‘balance’ between rights and counter-terrorism. However, given that the state has a general duty to protect life, the position is rather more complex than this model of binary displacement would suggest. Trying to work out a satisfactory cohabitation between rights and counter-terrorism has also been an abiding task for the courts and has excited much scholarly literature. Chapter 6 explores this interface, analysing law and policy from the UK, US, UN, and EU. The chapter first details the impact of counter-terrorism financing, the surveillance, detention, and interrogation of terrorist suspects on a variety of human rights, ranging from the prohibition on torture through to the rights of free speech and assembly. It then considers the effectiveness of the judiciary in curbing these infringements of rights, providing examples of successes and failures. One other aspect of constitutionalism, democratic accountability, has been hobbled both by inevitable executive claims to national security as a justification for dampening oversight and also by the often corporatist and informal modes of engagement between powerful stakeholders and the state. The obstacles and achievements will be covered in Chapter 7 that analyses, in the UK, US, and Canada, the scrutiny of counter-terrorism laws during the legislative process and the oversight of such laws after enactment through nonjudicial mechanisms, including Parliamentary Committees, the use of sunset clauses, and review bodies, such as the US Inspectors General. Among the challenges discussed are: party loyalty and electoral incentives; issues of scope, both in terms of recommendations made and review coverage; the lack of enforcement mechanisms, with recommendations simply ignored by the government; and, cherry picking where only some recommendations are adopted. The chapter concludes by calling for a network of accountability that includes judicial review alongside non-judicial mechanisms and side-steps the artificial dichotomy between legislatures and the courts, judicial and non-judicial processes, and politics and law. The final chapter in Part I examines legal accountability over counter-terrorism laws. The traditional deference of the courts in national security litigation is affected by factors such as access to information and executive claims to expertise. Nevertheless, the performance of the courts since 9/11 has not been as weak as might have been predicted, though with some notable variations between jurisdictions. Chapter 8 argues that success in the judiciary’s contribution to countering terrorism is best examined in terms of legitimacy and effectiveness. The chapter distinguishes between terrorist suspects, counter-terrorism operatives, law enforcers, and law-makers, arguing that courts are most effective and legitimate when dealing with law enforcers and terrorist suspects. It then considers the impact of express compared with implied powers, before considering whether any topics should be placed beyond the scrutiny of judges.

Part II: The pursuit of terrorists by criminal process and executive measures The ‘Pursuit’ element will be the theme for Part II of the Handbook. Part II will be the largest section of the book because of its prominence as the paradigm legal approach and also because it has generated so much scholarly commentary. The foundation of ‘Pursuit’ in intelligencegathering is crucial since that data can form the basis not only for general pre-emptive action but also for the individual application of criminal justice disposals or alternative executive measures. As a result, the first task of Part II is to explore some of the ways in which the law allows data about terrorism to be gathered before moving to the issue of how it is used. This crucial stage engages three chapters. Chapter 9 examines the different functions of intelligence and the corresponding issues around state power and accountability in relation to the UK, 8

Introduction

inquiring into how law can regulate intelligence activities. The chapter opens with a historical analysis of the role of surveillance and intelligence-gathering historically in the UK from the sixteenth century to contemporary times. This reveals the development of four key debates around surveillance: what powers of surveillance should the state have; how surveillance intelligence relates to the formal legal arena; the purpose of surveillance; and, the dangers of blurring the lines between intelligence and evidence. The chapter then assesses how these debates have played out in contemporary law and practice which reveal excessive state power framed by ‘a broad and loose legal framework’ with little accountability. Among the most concerning developments is the erosion of the distinction between intelligence and evidence. Chapter 10 next analyses the growing use of ‘dataveillance’, examining what it means, sketching the rapid development in data production and gathering over the past four decades, how it is used, and its effectiveness in countering terrorism, focusing on mass dataveillance and its predictive capabilities in relation to pattern-based queries. Two main difficulties emerge: modelling and the possibility of false negatives. It then considers the right to privacy and its interaction with dataveillance, arguing that privacy is often drawn too narrowly and that a more nuanced conception of the right is needed to properly balance it against the security needs in relation to dataveillance. The third leg of data gathering, the most overt and most regulated, concerns policing powers of detention and interrogation. Chapter 11 compares detention and interrogation in the US and UK under the criminal justice and the military paradigms. The US’s criminal justice approach contains few deviations specific to terrorist investigations. While the military paradigm is more flexible, one of the greatest challenges is whether there are any limitations on the government taking advantage of both paradigms. The UK has a welldeveloped series of exceptions to the standard of arrest, length of pre-charge detention, and to rules of interrogation applicable to terrorist investigations within the criminal justice system. The military paradigm is coming under increasing judicial scrutiny in the UK with judges insisting on adding a layer of international humanitarian law. A final topic that is linked to the effectiveness of policing powers concerns how global policing and security structures and relations have been altered since 9/11 to cope with terrorism. These changes, along with the expansion of cross-border linkages, will be tackled in Chapter 12, which reveals how most global counter-terrorist policing structures are practitioner driven and largely informal with legal regulations playing only a minor role. Interpol, the European Police Office (Europol), and the Police Working Group on Terrorism are subjected to detailed analysis. Notwithstanding the significant increase in formal structures, practitioners continue to rely on separate or supplemental informal mechanisms, such as the system of liaison officers. This suggests that implementing effective regulation of transnational policing will be problematic as the more countries with differing standards involved in counter-terrorism cooperation, the more likely it is that informal mechanisms will dominate strategies, although greater oversight is possible at the regional level. Once the necessary incriminating information about terrorism has been obtained, and subject to admissibility, the criminal prosecution path is often viewed as the most legitimate response for a state to implement by way of the ‘Pursuit’ of terrorists. For example, criminalisation was set down as a policy goal for the UK (in the context of Northern Ireland) as long ago as the Diplock Report in 1972.41 However, this approach does not mean that criminal justice cannot be adapted to achieve a stronger version of counter-terrorism. The next few

41

Report of the Commission to Consider Legal Procedures to Deal with Terrorist Activities in Northern Ireland (Cmnd 5185, London, 1972). 9

Genevieve Lennon and Clive Walker

chapters will explore those adaptations. Some changes affect the formulation of criminal offences and allow for early intervention (sometimes referred to as ‘precursor’ crimes or ‘precrimes’) by the use of broad formulations of the actus reus (including through the recitation of the term ‘terrorism’) and more vague variants of mens rea. Chapter 13 analyses these trends through an analysis of the Spanish offence of collaboration with a terrorist organisation and the Spanish and German offences of preparation of serious violent offences endangering the state. This reveals that while the nominal function of precursor crimes is to target those who collaborate with terrorist organisations, the offences are so broadly drafted as to enable their usage as a means of criminalising those who express political or ideological support for terrorist organisations. The chapter concludes by calling for caution in the face of the increasing resort being made to precursor offences, arguing that they deviate significantly from ordinary criminal norms, undermine the rule of law, and are of questionable efficiency. One can then follow the changes through into the setting of the court, with Chapter 14 analysing the phenomena of ‘exceptional’ courts through the prism of due process. The spectrum can be broad, as illustrated by the relatively modest changes made in England and Wales and the US Federal courts, through the juryless trials in Northern Ireland and the Republic of Ireland, to the extreme of the Military Commission in Guantánamo. These courts have been increasing in number, as have the breadth of functions undertaken. Having considered why states resort to such ‘due process exceptionalism’, the chapter outlines seven key characteristics that define exceptional courts, ranging from their composition through to their authorisation. The potential costs of these exceptionalisms are then discussed, with reference to human rights, international law, and the rule of law. These changes to the criminal justice system can become so numerous and so profound that they endanger the legitimacy of the criminal justice process, and thereby produce ‘political prisoners’ in the minds of defendants and their communities. Penal policy will be covered in Part IV below. Further problems are that the criminal justice process, however modified, may remain unappealing to the security agents who wish to avert the hazard of potentially devastating attacks without disclosure of methods and sources in a public courtroom. Hence, there emerge executive alternatives to prosecution such as detention/internment without trial, executive orders such as the UK’s control orders and now Terrorism Prevention and Investigation Measures,42 and a host of stringent executive measures elsewhere. These executive interventions are often based on lower levels of proof, a wider data set, and less formal (or fair) processes. They will be tackled in three chapters. Chapter 15 examines administrative detention, discussing how such detention usually acts as a means of punishing detainees for past conduct and outlining the three main types of administrative detention used in Israel. A particular difficulty posed by these detentions is the reliance on secret and other evidence which would usually be inadmissible. The challenge for the courts is to ensure effective oversight of the process, in terms of providing sufficient evidence to the detainee without risking human life or security interests, and to evaluate the state’s evidence against the detainee. Two models are compared: the judicial management model, practised in Israel; and the special advocate model, variants of which are used in the UK, US, and Canada. The latter, with its insistence that the detainee be given the ‘gist’ of the case against them is preferred as the better alternative although it does not protect against all potential unfairness engendered by administrative detentions. Next, Chapter 16 considers financial counter-measures, which involve the listing of individuals or entities as financial ‘outlaws’ by the UN and EU. The chapter examines

42 10

See Prevention of Terrorism Act 2005; Terrorism Prevention and Investigation Measures Act 2011.

Introduction

the global counter-terrorist financing system, analysing its application in terms of the UN’s asset-freezing lists, domestic counter-terrorist financing law, and the various reporting regimes, including the work of the Financial Action Task Force. The chapter then assesses the achievements of these various systems, determining that the UN lists primarily serve symbolic ends and any achievements are limited and that national counter-terrorist financing laws are also limited, in terms of securing convictions, although the offences often primarily serve intelligence gathering ends. The chapter concludes with reference to some of the potential limitations of the counter-terrorist financing system. The third aspect of executive action, considered in Chapter 17, impacts on aliens suspected of terrorism involvement, who have regularly been subjected to different laws than citizens, in relation to, inter alia: exclusion orders, which prohibit entry to a state; expulsion decisions; social rights; and administrative detention, whether to prevent unlawful entry or while awaiting expulsion. Among the issues examined are the practice of extraordinary rendition and the ECtHR’s judgments in El-Masri and Al Nashiri,43 the strong jurisprudence against the expulsion of aliens who thereby face the possibility of torture and the status of the increasingly used ‘diplomatic assurances’,44 the weaker jurisprudence regarding expulsion and the right to a fair trial,45 and the limited protection offered by social rights. There are three further chapters within Part II, covering issues that transcend the criminal law/executive measures divide. One relates to how legal processes handle sensitive information, a problem for both forms of resolution and underlined by recent debates in the UK on the Justice and Security Bill – now Act 2013. This is examined in Chapter 18 that looks at how four of the ‘Five Eyes’ nations (Australia, Canada, the UK, and the US) handle and disclose sensitive information in legal proceedings through closed material proceedings (CMPs). It charts two developments in the use of CMPs in Australia, Canada, and the UK – from immigration to preventive controls and from preventive measures to civil trials. Having argued that a dysfunctional best practices approach, combined with weak judicial scrutiny of legislation and the more general securitisation of legal systems enabled this expansion, the chapter then considers the approach to sensitive information in the US where CMPs are not permitted beyond pre-trial, in camera inspections, albeit with the exception of special immigration and military tribunals. The second (Chapter 19) relates to the treatment of victims, an issue that goes well beyond any form of process but falls within the area of ‘Pursuit’ since the problem arises from individuated actions. Few states have specifically recognised victims of terrorism by law,46 so their treatment is found to depend on fragments of laws or, more often, is ignored altogether. The chapter first assesses whether victims of terrorism merit distinct treatment than the victims of crime. It then surveys national and international approaches, through property loss to physical protection, concluding with recommendations for more consistent and comprehensive treatment of victims. The final chapter in the section, Chapter 20, addresses an issue pertinent to the entire collection: how can the impact and effectiveness of counter-terrorist laws and policies be scientifically evaluated? The chapter, which focuses primarily on Australia

43 44 45 46

App No 39630/09, 13 December 2012 and App No 28761/11, 24 July 2014, (2013) 57 EHRR 25. Saadi v Italy, App No 37201/06, 28 February 2008, (2008) 47 EHRR 17. Othman v UK, App No 8139/09, 17 January 2012, (2012) 55 EHRR 1. See (in Italy) Legge 23 novembre 1998, no 407, Nuove norme in favore delle vittime del terrorismo e della criminalità organizzata and Legge 3 agosto 2004, no 206; Nuove norme in favore delle vittime del terrorismo e delle stragi di tale matrice; (in Spain) Ley 32/1999, de 8 de octubre, de Solidaridad con las víctimas del terrorismo. 11

Genevieve Lennon and Clive Walker

and the UK, first explains why evidence-based counter-terrorism is of such importance before analysing the vast range of obstacles that stand in the way of such an achievement. These include ontological concerns regarding the nature and existence of terrorism, the difficulties in evaluating preventive strategies, the dearth of data sets due to the infrequency of terrorist events, and the interaction between various counter-terrorist measures. Having proposed a model costs–benefit framework, the chapter concludes by examining how counter-terrorist measures can be framed, singly or simultaneously, around one of three propositions: that they are effective in reducing the threat of terrorism; that they have little or no influence; and, that they increase the threat.

Part III: Protective Security The ‘Protect’ and ‘Prepare’ strategies of CONTEST overlap and so will be combined together as ‘Protective security’ in Part III of the book. These official policies as applied to counterterrorism are further explained by reference to the demand for ‘all-risks’ security and policing measures. By this approach, the entire population is treated as both risk-engendering and riskrunning. The application of ‘all-risks’ measures in response, demanding the collection of information about everyone, imposing universal screening, or embedding defensive regulations, once again owes more to a thematic intelligence-led approach than to the collection of evidence against identified suspects. They reflect a risk discourse in which risk is assessed and managed, rather than specifically attributed (such as through a court trial) or removed. In this way, the experiences of ‘protective security’ in the lives of the public represent but a fraction of the full picture, since much is covert or at least unheralded compared with the more prominent legal debates about ‘Pursuit’. That hidden operation does not, however, diminish the policy importance or spiralling commitment of public and private resources to delivering protective security against terrorism risk. The agenda of Part III could be very broad indeed, but some potential aspects will be omitted because, while there are national laws on the subject, they are never used and in any event are closely based on international regimes. This point applies to measures against nuclear terrorism. Instead, the chapters will concentrate more on specific terror-related sites and activities that have impacted on the public consciousness and have also produced real changes in practices. These will follow an initial Chapter 21 in which the broad contours of ‘homeland security’ are addressed in terms of legal duties and institutions. The chapter examines the difficulties around defining homeland security, which is the most far ranging of all counterterrorist strategies, before detailing the key institutions and actors involved in the production of homeland security in the US and UK, in terms of the government, law enforcement, and private sector, including those related to critical national infrastructure. The chapter then presents a model for ensuring effectiveness and accountability over homeland security. It concludes by examining four key challenges. Two of these – displacement and securitisation – are risks common to all counter-terrorist measures. The others – interdependencies, both within and between sectors, and involvement of the private sector are particularly prevalent risks within homeland security, notably in relation to critical national infrastructure. Part III then turns to more specific targets or activities. Chapter 22 deals with the imposition of security ‘stops’, now embedded in air travel but also widespread at other transport hubs or places of public gatherings. Focusing on non-border suspicionless counter-terrorist stop and search, it compares the contrasting experiences in UK and US, setting out the practice in both jurisdictions, which is increasing in the US while moribund in the UK. The contrasting legality of the respective programmes will then be analysed: the US approach having been 12

Introduction

upheld as constitutional while the UK’s programme was held to unjustifiability infringe the right to a private life. Arguing that a narrowly defined and exceptional power may be required, the chapter proposes a model framework that will facilitate the objective of deterrence while conforming to constitutional norms, including the rule of law. Counter-terrorism at airports and air travel, the foremost iconic target of contemporary terrorism, is considered in Chapter 23 alongside other forms of mass transportation in relation to road, rail, and marine travel with examples from North America, Europe, and Russia. After contextualising the threat of a terrorist attack against mass transportation, the chapter investigates possible security solutions, including emerging technologies, and their limitations in relation to each form of transportation. A cross-cutting concern is how to balance creating a friendly city atmosphere with security. Sectoral concerns include, for mass transit railways, how to ensure rapid transit of passengers while instituting sufficient levels of broad, protective security while, in relation to maritime transportation, restrictions on policing international waters raise considerable challenges. The chapter concludes by examining possible opportunities for interdiction presented by suicide bombers including behavioural assessment. The final issue in Part III arises because of heightened concern after 9/11 about the possibility of chemical, biological, radiological, or nuclear terrorism, a perception of risk that has been exacerbated by the unrelated threat of pandemic diseases. Chapter 24 examines one facet of this matter: the risks posed by the seemingly sensible drive to develop incapacitating chemical agents (ICA) weapons as ‘less than lethal’ solutions to situations such as terrorists taking hostages. The chapter provides a historical overview of ICA weapons and details recent research in the area. Although the lack of transparency regarding ICA weapons development makes the situation in many countries unclear, China, Israel, and the Russian Federation have acquired or developed ICA weapons. The potential drawbacks to ICA weapons are then analysed, in particular the ‘inherent dual or rather multiple applicability of research in this area’ and the possible erosion of the Chemical Weapons Convention 1993. Unlike the other chapters, this focuses on the State, arguing that advances in relevant dual-use research, albeit with objectives that are ostensibly benign could be undermined by non-State actors including terrorists or indeed by State actors and that the international community must take appropriate measures to combat this.

Part IV: Preventive measures The final leg of the strategic approach in CONTEST is ‘Prevent’, which will form the subject of Part IV of the book. This element is the most innovative in that it has limited precursors in UK counter-terrorism history; ‘hearts and minds’ was a term used in some conflicts (such as Malaya in the 1950s) but the idea was not to the fore in Northern Ireland counter-terrorism policy from 1969 onwards. It has come to prominence since the 7/7 (2005) London bombings, which obliged the government and public to confront the unpalatable fact that the terrorism was not the work of alien foreigners but involved attacks by their erstwhile ‘neighbours’. Therefore, the official analysis is that efforts must be made to avert this propensity to violence, often depicted as an outcome of the intermediate process of radicalisation. The impact of ‘Prevent’ is to further emphasise anticipatory risk and pre-emption. In delivery in the UK, the policy initiative has since become confusingly melded with community cohesion policies and is also very difficult to audit or assess. These problems prompted the government, in its Prevent Strategy review paper of 2011,47 to curtail its ambit. Nevertheless, the policy strand remains innovative and important. 47

(Cm 8091, London 2011). 13

Genevieve Lennon and Clive Walker

Chapter 25 analyses the contours of the ‘Prevent’ policy, contrasting the approaches taken in Pakistan, Malaysia, and the UK. While each jurisdiction shares a common legal heritage and some common counter-terrorism strategies, there are deep cleavages. The chapter details the contemporary ‘Prevent’ policies in each country, contextualising them historically before assessing how far they each achieve their aims. Each jurisdiction faces unique problems, such as the blurring of crime prevention and social policy in the UK, how to move ‘Prevent’ beyond a macro-political bent towards one that focuses on marginal communities and at-risk individuals in Pakistan, and the need for formalised structures based on a coherent strategic framework in Malaysia. There are also common challenges such as how to evaluate ‘Prevent’ policies and opportunities for each jurisdiction to learn from the others. Next, Chapter 26 considers the contention that counter-terrorism policies and laws under other headings of strategy actually conflict with ‘Prevent’ by inflaming community tensions and perceptions of discrimination. The chapter opens by debunking the ‘securitisation’ theses, arguing that they suffer from methodological, evidential, and conceptual failings. These include the failure to critically engage with core assumptions, notably the failure to distinguish between societal prejudice, the perception of prejudice and discriminatory state practices, and reasoning from presumptions rather than proving them. The chapter then proposes an alternative framework in which to assess the social impact of counter-terrorism policies: the reflexive social impact theory. Grounded in contemporary social theories, including liquid and reflective conceptions of modernity, this offers a conceptually sound and policy relevant methodology that acknowledges the interlinked and fluid nature of both shared and contested normative systems of contemporary society. Having dealt with the broader aspects of policy, three more specific measures can be considered. One relates to the internet, which is seen as having many anti-social aspects that are inimical to counter-terrorism, including the publication of extreme speech, which both ‘radicalises’ impressionable recruits and may inflame communal tensions (Chapter 27). Mechanisms to control the internet are notoriously difficult to impose, but special offences, technical devices, and policing formations have all been implemented, especially since the UNSCR 1624 of 2004. Legal targets of longer standing, though for similar rationales as internet extremism, are extreme groups. The chapter first outlines the extremist uses of the internet by terrorists. It then assesses the responses to the foregoing, focusing on content control across the UK, US and EU, including large-scale blocking and take-downs. The Chapter then considers the role and impact of ‘positive’ online counter-terrorism measures involving engagement and outreach. The question of how to deal with manifestations of extremism is considered in Chapter 28. This creates tensions on the one hand between collective democracy and the rights to free speech and assembly and collective democracy and the rejection of incitement to violence and the even more problematic issue of radicalisation or ‘glorification’ of terrorism. Comparing the Australian and British approaches, the chapter first examines why terrorist groups engage in such behaviour before detailing the counterstrategies deployed by states. Four key tactics are examined: first, interactive persuasion, where proponents of extremism are engaged with; second, criminal offences such as possession of information or material useful to terrorism and the broad offence of preparation of terrorism in the UK; third, the highly controversial approach of indirect criminalisation by way of the offences of ‘glorification’ and direct and indirect encouragement of acts of terrorism ‘incitement’; and fourth, proscription, whereby an organisation is banned. Finally, Chapter 29 provides an in-depth study of the penology of terrorism focusing on the UK. Opening with an analysis of the trends in sentencing convicted terrorists, key issues include the use of indeterminate sentences and the variation between the severity of sentences 14

Introduction

for terrorism in Northern Ireland compared with the rest of the UK. The conditions of imprisonment are then considered alongside the risks of radicalisation within prisons. Northern Ireland’s early release scheme is evaluated as part of a critique of rehabilitation in the UK, which is contrasted with a number of rehabilitation programmes from countries such as Saudi Arabia. The chapter concludes by examining the terms of release, including notification requirements and licence conditions.

Acknowledgements The production of this weighty Handbook has emerged over the course of two years. During that time, significant assistance was accorded from a number of sources for which the editors now express their thanks. First, we are grateful for the patience of all our contributors who tolerated the reviews and re-drafts of their text with good grace. Second, the Handbook was prefaced by a symposium, held at the University of Strathclyde in Glasgow in May 2014 and funded by the Royal Society of Edinburgh. The event allowed most contributors to the Handbook to present their chapters and to receive feedback from each other and from the other academics and practitioners in attendance. This generous funding thereby allowed us to bring lively discourse to our academic project, as well as the memorable experience of a civic reception in the Glasgow City Chambers. Third, the home institutions of the editors – the Universities of Dundee, Leeds and Strathclyde – also provided study support for this project. Fourth, we wish to thank the editors of Routledge, especially Katie Carpenter and Mark Sapwell, for their care and patience. The inevitable twists and turns leading to the delivery of the manuscript were always received with great professionalism. Finally, we have endeavoured to keep the Handbook updated to the 1 November 2014, though one or two later events managed to seep through to the beginning of 2015.

15

This page intentionally left blank

Part I

The boundaries and strategies of national counter-terrorism laws

This page intentionally left blank

2 Terrorism as a legal concept Ben Saul

Introduction There is a long and contested history of moral and political disapproval of ‘terrorism’. It is only fairly recently, however, when concepts of terrorism have taken legal form. From the midnineteenth century, the problem of what is often now regarded as terrorism was framed quite differently in national law. Political violence was variously prosecuted as ordinary crime or offences against public order or state security, supplemented in exceptional situations by special regimes of martial and emergency law. Highly variable national extradition laws struggled, however, to deal with political offenders who fled across borders, eventually precipitating efforts to improve transnational cooperation. Calls to define ‘terrorism’ as a legal concept principally arose in this context from the 1920s onwards, with many international efforts, over eighty years to the present, to define, criminalise, and depoliticise a common global legal concept of ‘terrorism’. Those efforts were generally unsuccessful and most national laws also continued to eschew reference to ‘terrorism’. Ordinary crimes and security offences, and emergency laws, were supplemented by the domestic implementation of numerous transnational treaty offences (such as hijacking or hostage taking), which generally did not mention terrorism. National security offences are typically wide in scope, often rendering a special category of terrorism unnecessary. Special ‘terrorism’ laws were most common in states confronting national liberation or separatist violence between the 1940s and 1980s (such as India, the UK, Israel and France). Later, they occurred in states (as in Europe and Latin America) that experienced extreme left wing or other political violence in the 1970s and 80s, and occasionally in states affected by religious violence (such as Egypt and Algeria in the 1990s). The legal concept of terrorism has never had a static or innate content, but varies according to prevailing political exigencies. It was only after 9/11 that most states considered enacting ‘terrorism’ into domestic law, spurred on by the perceived threat of global religious terrorism, obligations imposed by the UN Security Council, gaps in existing criminal liabilities and police powers and the expressive or communicative function of demarcating and stigmatising terrorism as a special kind of violence against protected public interests. National legal concepts of terrorism have come to serve many purposes, from criminal liability to special powers to civil law remedies. Concepts of terrorism in national law are, however, startlingly diverse. There is little evidence of global convergence, and certainly as yet no customary international crime 19

Ben Saul

of terrorism.1 National definitions have often been influenced by both international definitions and definitions in like-minded national legal systems. At the international level, there is increasingly broad consensus that terrorism is criminal violence intended to intimidate a population or coerce a government; some states add an ulterior intention to pursue a political, religious or ideological cause. There remain intense disagreements, however, on whether there should be exceptions for just causes (such as liberation or resistance violence), armed conflicts and state violence. Disagreements over exceptions to a definition of terrorism are equally disagreements about as the definition itself. They also reflect fundamental moral disagreements over when it is legitimate to use political violence.

Terrorism and the law before 1945 Modern legal efforts to confront what is now often treated as ‘terrorism’ can be traced to national extradition laws in nineteenth century Europe. In various states, political violence was committed against state targets by ethnic separatists, socialist revolutionaries, anarchists or nihilists or political opponents of authoritarian regimes. Some acts were narrowly targeted at stage agents while others deliberately or indiscriminately harmed civilians. Perpetrators often fled across national borders to escape retribution or justice, triggering demands from the victim state for their surrender and producing inter-state tension. Extradition laws in western Europe (particularly Belgium, France and the UK) and the US typically refused extradition for ‘political offences’ against another state (such as treason, sedition, espionage, sabotage or rebellion), so as both not to interfere in foreign politics and to safeguard asylum from autocratic regimes. However, national laws differed on what offences were ‘political’.2 Some states gradually permitted extradition for assassinations of heads of state or government, as well as certain atrocious, indiscriminate or disproportionate acts of political violence that harmed the innocent. The notion of ‘terrorism’ was not, however, used as an operative legal concept. The often stark differences in national extradition laws on the scope of political offences stimulated transnational harmonisation efforts from the 1920s onwards, aimed at preventing impunity for serious offenders. As with contemporary debates over terrorism, the difficulty lay in reaching transnational agreement on what violence was unjustified, in an international community of radically different political systems. Here legal concepts of ‘terrorism’ were repeatedly proposed in the European debates as a means of reaching transnational agreement on criminalising, and making extraditable, political violence considered beyond the pale. In 1926, Romania asked the League of Nations to consider drafting a ‘convention to render terrorism universally punishable’ but nothing happened.3 Terrorism was next considered in a series of International Conferences for the Unification of Criminal Law between 1930 and

1

2 3

20

See B Saul, ‘Legislating from a radical Hague: The UN Special Tribunal for Lebanon invents an international crime of transnational terrorism’ (2011) 24 Leiden Journal of International Law 677; K Ambos and A Timmermann,‘Terrorism and Customary International Law’ in B Saul (ed.), Research Handbook on International Law and Terrorism (Elgar, Cheltenham, 2014). C Van den Wijngaert, The Political Offence Exception to Extradition (Kluwer, Boston, 1980), 191; I Stanbrook and C Stanbrook, Extradition Law and Practice (2nd edn, OUP, Oxford, 2000), 68. League of Nations, Committee of Experts for the Codification of International Criminal Law, Replies of Governments 1927, LoN Doc C.196.M.70.1927.V, 221.

Terrorism as a legal concept

1935.4 The term ‘terrorism’ first appeared at the Third Conference in Brussels in 1930, referring to violence against people or property ‘with the purpose of expressing or executing political or social ideas’ and where capable of producing a ‘common danger’.5 Competing definitions were proposed at the subsequent conferences.6 The conferences broadly sought to treat terrorism as a special crime with distinctive elements additional to the underlying physical acts. By contrast, a 1935 proposal by the International Criminal Police Commission insisted that terrorism should be treated as ordinary crime.7 Ever since then, legal efforts to combat terrorism have often swung between these polar impulses. The most emphatic international effort to legally address terrorism in this period followed the assassination in France in 1934 of King Alexander of Yugoslavia and the French Foreign Minister, Louis Barthou, by a Macedonian separatist. The Italian courts refused to extradite the fugitives on the basis of the political offence exception. To avert diplomatic tensions and possible conflict, from 1934 to 1937, the League of Nations drafted an international convention to repress the crime of terrorism, and another treaty establishing an International Criminal Court (ICC) to prosecute it.8 The 1937 Convention for the Prevention and Punishment of Terrorism would have required states to criminalise its terrorist offences. Article 1(2) defines ‘acts of terrorism’ as ‘criminal acts directed against a State and intended or calculated to create a state of terror in the minds of particular persons, or a group of persons or the general public’. Article 2 then enumerates the physical acts that States must criminalise, including crimes against persons and property, weapons offences and ancillary offences. Consequently, terrorism is defined by the intended aim (a state of terror), the ultimate target (a State) and the prohibited means used, but proposals to define terrorism as a means to a political end were not accepted.9 ‘Acts of terrorism’ was defined circularly or tautologically by reference to ‘a state of terror’, despite objections that the phrase was ambiguous and open to abuse. The Convention’s extradition provisions did not, however, succeed in excluding terrorism from the political offence exception. In a climate of mounting authoritarianism, many states were reluctant to confine their sovereign discretion in extradition matters, including the scope of political offences, and were at pains to protect asylum from degradation. With the coming of the Second World War and the demise of the League, the treaty never entered into force. As a result, the predominant approach in national laws remained that terrorist violence was generally prosecuted as ordinary or political crimes, but not as terrorism. Further, in transnational cases,

4

5 6 7

8

9

G Bouthoul, ‘Definitions of terrorism’, in D Carlton and C Schaerf (eds), International Terrorism and World Security (Croom Helm, London, 1975), 50, 72; B Zlataric,‘History of international terrorism and its legal control’, in MC Bassiouni (ed.), International Terrorism and Political Crimes (Charles C Thomas, Illinois, 1975), 474, 478–482. Quoted in Zlataric, ibid, 479. See B Saul, DefiningTerrorism in International Law (Oxford University Press, Oxford, 2006), 169–171. League of Nations (Committee on the International Repression of Terrorism), ‘Preliminary Draft Convention drawn up by the Executive Bureau of the International Criminal Police Commission’, Geneva, 11 April 1935, LoN Doc CRT.3, 9. League of Nations Convention for the Prevention and Punishment of Terrorism; and League of Nations Convention for the Creation of an International Criminal Court (both adopted 16 November 1937, never entered into force; (1938) League of Nations Official Journal 19). See B Saul, ‘The legal response of the League of Nations to Terrorism’ (2006) 4 Journal of International Criminal Justice 78. League of Nations (Committee on the International Repression of Terrorism), ‘Legislation regarding political terrorist crimes: Study by T Givenovitch’, Geneva, 3 May 1935, LoN Doc CRT.9, 4. 21

Ben Saul

extradition remained subject to varied approaches to the political offence exception. The League definition nonetheless influenced later international legal debates. Outside Europe, ‘terrorist’ violence, from low-level resistance to high-intensity insurgency, was often encountered by European colonial powers. It is striking that such violence, while occasionally politically labelled or popularly stigmatised as terrorist at the time, was rarely treated as ‘terrorism’ by the legal regimes in force. Rather, colonial policing, emergency and martial law regimes were often framed around other, often looser, operative legal concepts. In the British Empire, for instance, these included laws on foreign hostility, rebellion, waging war, mutiny, riot, disturbances, public order or safety, dangerous associations, defence of the realm, anarchy, revolution, criminal tribes, treason, sedition and the maintenance of essential supplies and services.10 Only very occasionally was ‘terrorism’ mentioned in colonial laws,11 and even then it served no operative purpose. Even at home, British laws against Irish ‘terrorists’ targeted political ‘violence’ not ‘terrorism’.12 In part, it would seem that the concept of ‘terrorism’ was unnecessary precisely because martial law and emergency regimes were crafted so broadly, by reference to an array of subjective, indeterminate and often overlapping legal categories such as public order or state security. The idea of terrorism offered little legal advantage that states did not already enjoy. While many contemporary definitions of terrorism are rightly criticised for their vagueness, they are often nonetheless more targeted at specific species of political violence than many of the older and more diffuse security law regimes that addressed such violence in the past.

Legal conceptions of terrorism between 1945 and 2001 Codification of international crimes After the Second World War, the concept of terrorism resurfaced in episodic efforts by the International Law Commission (ILC) to codify international crimes between 1954 and 1998. In 1954 the ILC invoked, but did not define, ‘terrorism’ as a form of criminal aggression by one state against another.13 Much later, in 1991, it proposed a separate offence of international terrorism by one state against another, defined as: undertaking, organising, assisting, financing, encouraging or tolerating acts against another State directed at persons or property and of such a nature as to create a state of terror in the minds of public figures, groups of persons or the general public.14

10 11 12

13 14

22

AWB Simpson, Human Rights and the End of Empire (Oxford University Press, Oxford, 2001), 54–90. Suppression of Terrorist Outrages Act 1932 in British Bengal. Prevention of Violence (Temporary Provisions) Act 1939 (UK), s 1(1). The same even applied in Northern Ireland, where measures reflected wartime and colonial models: see G Hogan and CP Walker, Political Violence and the Law in Ireland (Manchester University Press, Manchester 1989). ILC Draft Code of Offences against the Peace and Security of Mankind (Part I), Article 2(6), in ILC 6th Session Report (3 June–28 July 1954), UN Doc A/2693. ILC Draft Code of Offences against the Peace and Security of Mankind 1991, Article 24, in (1990) ILC Year Book 336.

Terrorism as a legal concept

A revised 1995 draft added that acts must be committed ‘in order to compel’ the victim State ‘to grant advantages or to act in a specific way’.15 The final ILC Draft Code of International Crimes was approved in 199616 and did not include an autonomous terrorism offence. Instead, only a more limited war crime in armed conflict of ‘acts of terrorism’ appeared, based on Article 4(2)(d) of Additional Protocol II of 1977 to the Geneva Conventions of 1949. While the 1996 ILC Draft Code was not adopted as a treaty, the General Assembly drew it to the attention of the Preparatory Committee on the Establishment of an International Criminal Court.17 Ultimately, Article 5 of the 1998 Draft Rome Statute, presented to the 1998 Rome Diplomatic Conference,18 included autonomous ‘crimes of terrorism’ comprising three distinct offences. The first offence was: Undertaking, organizing, sponsoring, ordering, facilitating, financing, encouraging or tolerating acts of violence against another State directed at persons or property and of such a nature as to create terror, fear or insecurity in the minds of public figures, groups of persons, the general public or populations, for whatever considerations and purposes of a political, philosophical, ideological, racial, ethnic, religious or such other nature that may be invoked to justify them…. This first offence resembles the 1991 ILC draft and was not limited to armed conflict (as was the 1996 ILC draft). It also shares elements of the 1937 League definition and a later 1994 General Assembly working definition of terrorism. The second offence comprised any offence in six sectoral anti-terrorism treaties (discussed below). The third offence involved ‘the use of firearms, weapons, explosives and dangerous substances when used as a means to perpetrate indiscriminate violence involving death or serious bodily injury to persons or groups or persons or populations or serious damage to property’. At the Rome Conference, thirty-four states spoke in favour of including terrorism as an international crime, including because it shocked the conscience of humanity, had grave consequences for human suffering and property damage, occurred increasingly frequently and on a larger scale, and threatened peace and security.19 The option of referring terrorism to the ICC was also intended to avoid jurisdictional disputes between states and empower the Security Council to resolve it. Ultimately, terrorism was not included in the 1998 Rome Statute. A conference resolution ‘regretted’ that ‘despite widespread international condemnation of terrorism, no generally acceptable definition… could be agreed upon’.20 The matter of national liberation violence was contentious, and some feared terrorism would politicise the ICC.21 Pragmatically, some states

15 16 17 18 19 20 21

ILC, Report on 47th session (2 May–21 July 1995), UN General Assembly (UNGA) Official Record Supplement 10, UN Doc A/50/10, 58. ILC, Report on 48th session (6 May–26 July 1996), UN Doc A/51/10, ch II(2), paras 46–48. UNGA Resolution 51/160 (1996). Draft Rome Statute 1998, article 5, in Official Records of the UN Diplomatic Conference of Plenipotentiaries on an ICC, Rome, 15 June–17 July 1998, UN Doc A/CONF.183/13, vol III, 21. ICC Preparatory Committee, Summary of Proceedings, 25 March–12 April 1996, UN Doc A/AC.249/1 (7 May 1996), para 66. Resolution E, annexed to the Final Act of the UN Diplomatic Conference of Plenipotentiaries on an ICC, 17 July 1998, UN Doc A/Conf.183/10. ICC Preparatory Committee, above, para 67; N Boister, ‘The exclusion of treaty crimes from the jurisdiction of the proposed International Criminal Court: law, pragmatism, politics’ (1998) 3 Journal of Armed Conflict Law 27. 23

Ben Saul

felt that terrorism was better suited to national prosecution, was not serious enough for international prosecution or that investigative not legal difficulties were decisive.22 Of the forty states that were openly against including terrorism (including various western states but also the 22 states of the Arab League), many agreed that it was a serious crime but preferred to defer its inclusion until it was more clearly defined. The omission of terrorism is significant in signalling that the international community in 1998 did not view it as an agreed international crime. As of 2014, terrorism is yet to be included in the ICC’s jurisdiction, despite some attempts in this direction on review in 2010.23

Sectoral counter-terrorism conventions Transnational terrorist acts increased from the 1960s, often perpetrated by liberation movements resisting colonial powers. Because of the disagreements over the definition of terrorism, the international community incrementally responded by adopting numerous ‘sectoral’ treaties since the 1960s addressing common methods of terrorist violence (such as hijacking, hostage taking, endangering maritime facilities and so on).24 Most of the treaties avoid referring to ‘terrorism’, with the exception of the three most recent treaties (since 1997) on terrorist financing, terrorist bombings and nuclear terrorism. None of the treaties establishes a general crime of terrorism, although the Terrorist Financing Convention comes closest in providing a general definition for the limited purpose of criminalising terrorist financing. The treaties typically require states to criminalise certain conduct, establish extraterritorial jurisdiction and cooperate by prosecuting or extraditing suspects (the aut dedere aut judicare principle). A few recent treaties require states to regard the offences as non-political for the purposes of extradition, but most treaties do not. This pragmatic approach enables the repression of much terrorism while sidestepping the irreconcilable problem of definition, during the post-war period of decolonisation when states were unable to agree on the legitimacy of violence by liberation movements. The result has been functional transnational cooperation, even if there remain regulatory gaps because of the reactive, ad hoc nature of treaty-making (for example, terrorist attacks by small arms, as in the Mumbai attacks in 2008, are not prohibited by treaty law).

UN General Assembly Some of the above treaties were drafted under UN auspices. Disagreement about terrorism was particularly acrimonious in the UN General Assembly in the 1970s, following an attack by Palestinians at the Munich Olympics in 1972. In debates between 1973 and 1979, states were

22

23

24

24

Respectively, M Arsanjani, ‘The 1998 Rome Statute of the International Criminal Court’ (1999) 93 American Journal of International Law 22, 29; and D Scheffer, ‘Developments at Rome Treaty Conference’, Testimony of US Ambassador at Large for War Crimes Issues and Head of US Delegation to the Rome Conference, US Senate Foreign Relations Committee,Washington DC, 23 July 1998. RS Clark, ‘Amendments to the Rome Statute of the International Criminal Court considered at the first Review Conference on the Court, Kampala, 31 May–11 June 2010’ (2010) 2 Goettingen Journal of International Law 689. See ‘UN Action to Counter Terrorism: International Legal Instruments’, www.un.org/ en/terrorism/instruments.shtml last accessed 14 February 2014. For discussion see Saul Research Handbook on International Law and Terrorism (n 1), Part I.

Terrorism as a legal concept

unable to agree on a definition of terrorism, the causes of it or measures to address it. Disagreement was particularly sharp on liberation violence and state terrorism. From the 1980s, however, more consensus developed and accelerated in the 1990s after the end of the Cold War. A breakthrough came with the 1994 Declaration on Measures to Eliminate International Terrorism, which condemns terrorism as: Criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes are in any circumstance unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or any other nature that may be invoked to justify them.25 A pattern of regular subsequent resolutions affirmed this attitude, although many states continued to differentiate self-determination violence from terrorism, and insist on the need for a legal definition, particularly the 118 states of the Non-Aligned Movement and the (many overlapping) fifty-seven states of the Organisation of Islamic Cooperation (OIC). While the definition did not establish legal liability or a crime of terrorism, or of itself generate customary law, it indicated the international community’s basic political conception of terrorism.

UN Draft Comprehensive Convention The closest the UN has come to defining terrorism is in the ongoing negotiation of a Draft Comprehensive Terrorism Convention since 2000, based on an Indian proposal. Substantial progress was made in an Ad Hoc Committee in 2001–02, spurred on by 9/11. By 2002, agreement was reached on most provisions.26 By 2003, however, some states had reached their ‘bottom-line’ on disputed matters, including exceptions to a definition of terrorism for state and non-state violence in armed conflict.27 Negotiations continue in 2015. Draft Article 2(1) proposes an offence if a person ‘unlawfully and intentionally’ causes: ‘[d]eath or serious bodily injury to any person’;‘[s]erious damage to public or private property’; or ‘[d]amage to property, places, facilities, or systems … resulting or likely to result in major economic loss’.28 The purpose (or motive) of such conduct ‘by its nature or context’ must be ‘to intimidate a population, or to compel a Government or an international organisation to do or abstain from doing any act’. There is no further requirement that acts be politically motivated (as is the case in some common law national definitions). The treaty would exclude the offences from the political offence exception to extradition. While there was a basic consensus on the definition of offences, disagreement arose when Malaysia, on behalf of the OIC, sought to exclude ‘[p]eople’s struggle including armed struggle against foreign occupation, aggression, colonialism, and hegemony, aimed at liberation and self-

25 26 27 28

UNGA Resolution 49/60 (1994), annexed Declaration on Measures to Eliminate International Terrorism, para 3. UNGA (57th Session) (6th Committee), Measures to Eliminate International Terrorism: Working Group Report, 16 October 2002, A/C.6/57/L.9, annex II, 7–8. UNGA, Ad Hoc Committee,‘Finalizing Treaty Requires Agreement on “Armed Forces”,“Foreign Occupation”, Anti-Terrorism Committee Told’, PR L/2993, 1 February 2002. UNGA (56th Session) (6th Committee), Measures to Eliminate International Terrorism: Working Group Report, 29 October 2001, UN Doc A/C.6/56/L.9, annex I, 16 (informal Coordinator texts). 25

Ben Saul

determination’.29 Other states objected, believing that ‘a terrorist activity remained a terrorist activity whether or not it was carried out in the exercise of the right of self-determination’.30 Further, self-determination is already governed by existing international law, including the law of armed conflict. The debate about what is outside the definition of terrorism is as much as debate about what is inside it; it goes to the heart of how the international community conceptualises the notion of terrorism itself. No such exclusionary provision was included in the 1997 Terrorist Bombings Convention or the 2005 Nuclear Terrorism Convention, both of which were drafted by the same UN Ad Hoc Committee. When Pakistan lodged a reservation purporting to exclude the application of the Bombings Convention from self-determination struggles, numerous states formally objected,31 on the basis that it was impermissibly contrary to the treaty’s object and purpose. While no such broad exception appears in the current draft, the issue remains alive in relation to mooted exclusionary provisions concerning armed conflict. The 1997 Terrorist Bombings Convention, the 2005 Nuclear Terrorism Convention and the 2005 Amendment to the 1980 Vienna Convention on Nuclear Material all exclude the ‘activities of armed forces during an armed conflict’ from that Convention, as well as the activities of State military forces exercising their official duties ‘inasmuch as they are governed by other rules of international law’.32 This approach is also followed in the EU Framework Decision on Combatting Terrorism.33 Proposed Article 18 of the Draft Comprehensive Convention is based on the 1997 Terrorist Bombings Convention, but is subject to three disagreements.34 One is whether the Draft Convention should exclude the activities of the ‘parties’ – rather than the ‘armed forces’ – during an armed conflict.35 Reference to the ‘parties’ is aimed at exempting groups such as the Palestine Liberation Organisation, Hamas, Islamic Jihad and Hezbollah.36 It could preclude civilians taking part in hostilities, who are not otherwise members of non-state ‘armed forces’, from being regarded as ‘terrorists’. The proposal is overbroad in that it excludes terrorist attacks on civilians or state military forces from being ‘terrorism’. For the same reason, a second OIC proposal, to exclude ‘foreign occupation’ (contemplating, for instance, the situation in Kashmir), is also problematic.37

29

30 31 32

33 34 35 36 37 26

S Subedi, ‘The UN response to international terrorism in the aftermath of the terrorist attacks in America and the problem of the definition of terrorism in international law’ (2002) 4 International Law Forum 159, 163. Ibid. Austria, Australia, Canada, Denmark, Finland, France, Germany, India, Israel, Italy, Japan, the Netherlands, New Zealand, Norway, Spain, Sweden, UK, US. International Convention for the Suppression of Acts of Nuclear Terrorism (adopted 13 April 2005), article 4; International Convention for the Suppression of Terrorist Bombings (adopted 15 December 1997, entered into force 23 May 2001), article 19(2); Convention on the Physical Protection of Nuclear Material (adopted 3 March 1980, entered into force 8 February 1987, 1456 UNTS 101), article 2(4)(b). EU Framework Decision on Combating Terrorism (2002/475/JHA), 13 June 2002, OJ L164/3, 22 June 2002, recital 11. UNGA Ad Hoc Committee Report (2003), UN Doc A/58/37, 11–12. OIC proposal, in UNGA Ad Hoc Committee Report (2002), UN Doc A/57/37, 17; UNGA Ad Hoc Committee Report (2004), UN Doc A/59/37, 11, para 6. S von Schorlemer, ‘Human rights: substantive and institutional implications of the War on Terror’ (2003) 14 European Journal of International Law 265, 272. OIC proposal, in UNGA Ad Hoc Committee Report (2002), UN Doc A/57/37, annex IV, 17.

Terrorism as a legal concept

International humanitarian law (IHL) already criminalises unlawful attacks on civilians or the military in armed conflict, including occupation. There are specific prohibitions on terrorism, acts of terrorism, and spreading terror amongst a civilian population and attendant war crimes liability.38 Exempting the above conduct from an international crime of terrorism would not therefore confer impunity, but leave liability to the domain of war crimes law. The exclusion debate is thus partly a political struggle over labelling and the stigmatisation and delegitimation it brings, rather than an effort to evade liability altogether. There are nonetheless real questions of legal liability at stake. From a law enforcement standpoint, for instance, preventive offences and special powers accompany terrorist acts but not war crimes.39 A third disagreement is whether state military forces exercising their official duties are excluded from the Draft Convention if they are merely ‘governed’ by international law or required to be ‘in conformity’ with it (the latter proposed by the OIC). Official duties in peacetime include, for instance, law enforcement, evacuation operations, peace operations, UN operations or humanitarian relief. The OIC states feel that the Draft Convention should cover state or state-sponsored ‘terrorism’, notwithstanding the application of existing international law. Again, political labelling is at stake, but also real legal consequences. Presently, state violations of international law (including human rights and state responsibility) do not always bring criminal liability, whereas non-state actors would be asymmetrically criminally liable. Perhaps more problematic than the international debate about exclusions is the unilateral criminalisation of ‘terrorism’ in armed conflict by some national laws. Some common law states, for instance, such as the UK and Australia (and a draft Israeli law), criminalise terrorism without any exception to accommodate armed conflict and the special regime of IHL. In R v Gul, the UK Supreme Court found that, while various counter-terrorism treaties exempt aspects of armed conflict from their scope, international law does not prohibit national law from extending domestic terrorism offences to apply in armed conflict.40 In consequence, every attack by non-state forces on foreign military forces can then be characterised as terrorism – namely, political violence to coerce a foreign state. This is so even if the attack solely aims at a military target, does not cause disproportionate civilian casualties and is not perfidious or does not otherwise use prohibited means or methods of warfare (in other words, it complies with IHL). All war fighting by non-state actors against a state becomes ‘terrorism’. There is little difficulty with dually characterising violence against civilians in armed conflict as a war crime and the crime of terrorism. Beyond this, however, the International Committee of the Red Cross (ICRC) – well placed by its expertise to know – warns of the danger of criminalising acts that are not already unlawful in IHL.41 While victim states have long

38

39 40 41

Respectively: Fourth Geneva Convention (adopted 12 August 1949, entered into force 21 October 1950, (1950) 75 UNTS 287), Article 33(1); Protocol II Additional to the Geneva Conventions (adopted 8 June 1977, entered into force 7 December 1978, (1979) 1125 UNTS 609), Article 4(2)(d); Protocol I Additional to the Geneva Conventions (adopted 8 June 1977, entered into force 7 December 1978, (1979) 1125 UNTS 3), Article 51(2) and Protocol II, infra, Article 13(2); and Prosecutor v Galic, ICTY-98-29-T (5 December 2003), [65]. See B Saul,‘Crimes and prohibitions of “terror” and “terrorism” in armed conflict: 1919-2005’ (2005) 4 Journal of the International Law of Peace and Armed Conflict 264. See chapters 8–13 in this book. [2013] UKSC 64. ICRC Report, Terrorism and International Law: Challenges and Responses:The Complementary Nature of Human Rights Law, International Humanitarian Law and Refugee Law (Geneva, 2002). 27

Ben Saul

criminalised violence by local non-state groups, it is a recent development for other states to criminalise all non-state violence against all foreign states. Criminalising fighting by armed groups as terrorism undermines the incentive to comply with IHL, for there is no longer any legal difference between attacking civilians or the military. It makes armed resistance to authoritarian regimes ipso facto illegal, regardless of means. It may lead to third states cooperating to prosecute or extradite such persons, even if the latter have not violated IHL.42 The crime of terrorism comes to serve as a proxy for other criminal wrongs, such as foreign recruitment or mercenarism: the mere fact of going to fight elsewhere becomes a crime, regardless of how one fights. The ICRC has urged the Draft Comprehensive Convention to exclude acts covered by IHL (as the lex specialis or special law), as the current Draft partly attempts to do. On a related point, what is also missing in the international debate about the Draft Comprehensive Convention is consideration of a little-known ‘democratic protest’ exception found in the national terrorism laws of common law states such as Australia, Canada and New Zealand. Such exception is for acts of advocacy, protest, dissent or industrial action that are not intended to cause death, serious bodily harm or serious risk to public health or safety.43 Such exceptions prevent criminalising as ‘terrorism’ minor harms (property damage) in the course of the traditions of direct democratic action. While property damage may exceed the limits of freedom of expression and amount to public order offences, they should not be stigmatised as terrorism. Such an exception is all the more necessary in the Draft Convention, given that it will be adopted by democratic and non-democratic states alike. In the UK, some of these matters have been ventilated in a debate about whether prosecutorial discretion is a sufficient to address the public interest in not prosecuting cases of ‘just’ violence against oppressive regimes, or preventing over-reach (as for IHL-compliant fighting). Whereas a UK Independent Reviewer of Terrorism Legislation thought prosecutorial discretion was a sufficient safeguard,44 the UK Supreme Court opined that it was ‘intrinsically unattractive’ because it abdicates the parliament’s legislative function to an unelected prosecutor, renders legal liability uncertain and detracts from the rule of law.45 It is preferable to draft a narrower definition targeting violence parliament considers truly wrongful than to leave a wide definition for prosecutors to play with as a liability yo-yo.

Counter-terrorism law of regional organisations In the absence of universal agreement on a definition of terrorism, greater progress has been made at the regional level. First, some conventions merely reiterate the limited approach of the sectoral anti-terrorism conventions in a regional context.46 Second, other conventions declare that certain terrorism offences should not be regarded as political offences in extradition law,

42 43 44 45 46

28

Ibid. Canadian Criminal Code s 83.01(1)(E); Australian Criminal Code s 100.1(3); Terrorism Suppression Act 2002 (New Zealand), s 5(5). Lord Carlile of Berriew QC, The Definition of Terrorism: A Report by the Independent Reviewer of Terrorism Legislation (Cm 7052, London, 2007) paras 60–64. R v Gul [2013] UKSC 64 [36]. Organisation of American States Convention to Prevent and Punish Acts of Terrorism Taking the Form of Crimes against Persons and Related Extortion that are of International Significance (adopted 2 February 1971, entered into force on 16 October 1973, 1438 UNTS 194); InterAmerican Convention against Terrorism (adopted 3 June 2002), article 3 (treaties listed in article 2).

Terrorism as a legal concept

or that states must cooperate, but do not requires states to create new terrorist offences.47 Third, some conventions define terrorism by reference to other treaties and then create preparatory or inchoate offences, which states must criminalise.48 Finally, and most controversially, some regional conventions generically define terrorism and require states to criminalise terrorist offences. Examples include the Arab Convention on the Suppression of Terrorism of 1998,49 the OIC Convention on Combating International Terrorism of 1999 and the Shanghai Cooperation Organisation Convention on Combating Terrorism, Separatism and Extremism of 2001. While not a treaty, also relevant is the EU’s Framework Decision on Combating Terrorism of 2002,50 which defines ‘terrorist offences’ to enable a common European arrest warrant and the mutual recognition of legal decisions,51 and requires approximation of offences in domestic law. This last category of regional conventions has given rise to the greatest human rights concerns because many of the definitions of terrorism are drafted very loosely and fail to satisfy the principle of legality. Some of them reclassify as terrorism ordinary crimes or public order offences,52 or even insurrection.53 Some criminalise conduct infringing vague values such as the ‘stability, territorial integrity, political unity or sovereignty’ of states54 or imperilling the ‘honour’ or ‘freedoms’ of individuals.55 Some safeguard ambiguous objects, such as harm to a ‘national resource’56 or ‘environmental or cultural heritage’.57 One inter-mingles terrorism with ‘separatism’ or ‘extremism’.58 The EU includes an ill-defined motive element of ‘seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organization’.59

47

48

49 50

51 52 53 54 55 56 57 58 59

Council of Europe Convention on the Suppression of Terrorism (adopted 27 January 1977, entered into force 4 August 1978, ETS No 90); Protocol amending the European Convention on the Suppression of Terrorism (adopted 15 May 2003, ETS No 190); South Asian Association for Regional Cooperation Convention on Suppression of Terrorism (adopted 4 November 1987, entered into force 22 August 1998); Treaty on Cooperation among the States Members of the Commonwealth of Independent States in Combating Terrorism (adopted 4 June 1999, entered into force 4 June 1999); African Union Protocol of 2004 to the Organisation of African Unity Convention on the Prevention and Combating of Terrorism 1999 (adopted 8 July 2004). Council of Europe Convention on the Prevention of Terrorism (adopted 16 May 2005, entered into force 1 June 2007, ETS No 196), article 5(2); SAARC Additional Protocol (adopted 6 January 2004). League of Arab States Convention on the Suppression of Terrorism (adopted 22 April 1998; entered into force 7 May 1999). EU Framework Decision on Combating Terrorism (2002/475/JHA), 13 June 2002, OJ L164/3, 22 June 2002; B Saul,‘International terrorism as a European crime: The policy rationale for criminalization’ (2003) 11 European Journal of Crime, Criminal Law and Criminal Justice 323; C Murphy, EU Counter-Terrorism Law: Pre-Emption and the Rule of Law (Hart, Oxford, 2012), ch 3. EU Framework Decision on the European Arrest Warrant and the Surrender Procedures between Member States (2002/584/JHA), 13 June 2002, OJ, L 190/1, 18 June 2002. Arab Convention, above, article 1(2); Organisation of the Islamic Conference Convention on Combating International Terrorism (adopted 1 July 1999), article 1(2). Organisation of African Unity Convention on the Prevention and Combating of Terrorism (adopted 14 July 1999, entered into force 6 December 2003), article 1(3). OIC Convention, above, article 1(2). Ibid. Arab Convention, above, article 1(2); OIC Convention, above, article 1(2). OAU Convention, above, article 1(3). Shanghai Cooperation Organization Convention on Combating Terrorism, Separatism and Extremism (adopted 15 June 2001, entered into force 29 March 2003), article 1. EU Framework Decision, above, article 1(1). 29

Ben Saul

The elimination of the political offence exception in the context of such wide definitions of terrorism is especially problematic, since it substantially curtails the freedom of populations to resort to domestic political resistance to violent, oppressive governments. Other states in the region become legally obliged to suppress resistance, often even where such movements limit violence to IHL-compliant attacks on military objectives. At the other extreme, three conventions (OIC, Arab and African) ‘carve out’ acts by liberation movements in pursuit of self-determination, implying that any means may be justified for a just cause.

National laws Prior to 9/11, terrorism was not an operative legal concept in most national systems. From the 1960s many states ratified the sectoral counter-terrorism treaties and duly enacted those offences into national law without referring to ‘terrorism’. Most states also relied on emergency laws for special powers, and offences against state security or public order, when confronted with ‘terrorism’. This was true even of major states like China, whose 1979 criminal law had a chapter on counter-revolutionary crimes but without referring to terrorism.60 Between 1945 and the early 1980s, where terrorism laws existed they often targeted opponents in liberation or separatist conflicts. For instance, in the Algerian war of independence in the 1950s and early 1960s, some French legal measures characterised opponents as ‘terrorists’.61 Likewise, the apartheid regime in South Africa deployed its Terrorism Act 1967 against the African National Congress, sweepingly defining (in section 2) the crime to include acts which ‘endanger the maintenance of law and order’. In India, the Terrorist and Disruptive Activities (Prevention) Act 1985 created new terrorist offences as well as special powers in response to domestic insurgencies. Terrorism was widely defined (in section 3) as violent acts intended to ‘overawe’ the government and to ‘strike terror in the people’ or adversely affect social harmony.62 Often where terrorism was utilised as a legal category, it triggered special or emergency powers rather than creating a terrorist offence. An early example is the then new state of Israel’s Prevention of Terrorism Ordinance No. 33 of 1948, which applies in a declared emergency (in force to this day) and was a response to the assassination by Jewish terrorists of the UN mediator, Count Bernadotte. The Ordinance defines a ‘terrorist organisation’ as ‘a body of persons resorting in its activities to acts of violence calculated to cause death or injury to a person or to threats of such acts of violence’.63 It creates new offences for involvement with a terrorist organisation and triggers special powers, but does not criminalise terrorist acts. The exceptionally broad definition is incapable of distinguishing a terrorist organisation from any other criminal group that harms people, from bank robbers to soccer hooligans.64

60 61

62 63 64 30

F Hualing,‘Responses to terrorism in China’ in V Ramraj, M Hor, K Roach and G Williams (eds), Global Anti-Terrorism Law and Policy (Cambridge University Press, Cambridge, 2012), 334, 336. R Branche, ‘The French State Faced with the Algerian Nationalists (1954-1962): A War against Terrorism?’ in S Cohen (ed.), Democracies at War Against Terrorism (Palgrave Macmillan, London, 2008), 395, 397. See generally UK Singh, ‘Mapping anti-terror legal regimes in India’ in Ramraj and others (n 60) 420. Prevention of Terrorism Ordinance, No 33 of 5708–1948 (Israel), s 1. Israel is drafting a new Terrorism Law, yet to be adopted.

Terrorism as a legal concept

In Europe, in 1974 Britain revived and modified a 1939 law against Irish political ‘violence’ and rebadged it as a law against ‘terrorism’. The Prevention of Terrorism (Temporary Provisions) Act 1974, section 9 defined ‘terrorism’ as ‘the use of violence for political ends, and includes any use of violence for the purpose of putting the public or any section of the public in fear’. While this emergency law established ‘temporary’ special powers (including proscription of organisations and exclusion or removal from Britain) and ancillary offences (such as membership of or displaying support for a proscribed organisation), those perpetrating terrorism continued to be charged with ordinary offences.65 This was also the case in the US after it passed the Anti-Terrorism and Effective Death Penalty Act 1996, which created an ancillary offence of providing material support for terrorism. Beyond the Algerian conflict, France was an early adopter of domestic terrorism laws, in response to a spate of violence from 1980 by radical left-wing groups (such as Action Directe), regional separatists (Basque, Brittanic and Corsican) and Middle Eastern groups.66 Its Law No. 86-1020 of 9 September 1986 defined terrorism as ‘acts committed by individuals or groups that have as a goal to gravely trouble public order by intimidation or terror’.67 The definition triggers special powers and procedures, and ancillary offences, and creates liability for terrorism when linked to listed ordinary offences.68 Faced with violence by the Red Army Faction in the 1970s, Germany also criminalised various forms of involvement with domestic terrorist organisations in Article 129 of the Criminal Code, defined simply by listing existing offences when committed by a group. Italy also responded with laws against terrorist associations in 1980 to confront domestic subversive left- and right-wing violence.69 Likewise in Latin America, for example, Peru passed an antiterrorism law in 1981 in response to the extreme left-wing movement Shining Path.70 In Spain, Franco’s military regime had utilised special terrorism laws and military courts against its opponents. Later, counter-terrorism law focused on Basque separatism prior to 9/11 and the Madrid bombings of 2004. In post-Franco Spain, Article 55(2) of the 1978 Constitution provides for the suspension of some rights ‘in connection with investigations of the activities of armed bands or terrorist groups’. The Penal Code establishes terrorist offences (Articles 571–579) connected with terrorist organisations or committed by individuals. The terrorist element aggravates the penalty for ordinary offences.71 While there is no general definition of terrorism, terrorist organisations ‘have the purpose or object of subverting the constitutional order or seriously altering the public peace’ by committing the listed offences (Article 571). Individual terrorism involves listed offences intended ‘to subvert the constitutional order or seriously alter the public peace, or to contribute to those ends by terrorising the inhabitants of a town or the members of a social, political or professional group’ (Article 577). The adoption of national laws against terrorism accelerated during the 1990s, especially in countries that faced religious or separatist violence, including laws in Turkey (1991), Egypt

65 66 67 68 69

70 71

See CP Walker, The Prevention of Terrorism in British Law (Manchester University Press, 1992) ch 11. J Shapiro and B Suzan,‘The French experience of counter-terrorism’ (2003) 45 Survival 67, 68–69. Ibid, 77. French Criminal Code, article 421-1. Law No. 15 of 1980, introducing article 270 bis of the Italian Criminal Code; see B Vettori, ‘Terrorism and Counter-terrorism in Italy from the 1970s to Date: A Review’, Final Report, Transcrime, 2007, 4, 10, 28. M Freeman, Freedom or Security:The Consequences for Democracies of Using Emergency Powers to Fight Terrorism (Praeger,Westport, 2003), 154. See further chapter 3 (Masferrer and Llobet-Anglí) in this book. 31

Ben Saul

(1992), Algeria (1992) and Russia (1997). Some of these laws applied even in situations of armed conflict (as in Turkey, which denied the existence of a conflict against Kurdish insurgents and defined terrorism to include attacks on the state’s unity and territory; and in Russia, fighting Chechen rebels).72 Occasionally national laws assumed a wider significance, as when the Egyptian definition of terrorism heavily influenced the definition adopted by the regional Arab Convention Against Terrorism.

Concepts of terrorism after 11 September 2001 UN Security Council response Prior to 9/11, the UN Security Council sporadically condemned specific terrorist acts, and created a sanctions regime targeting particular members of Al Qa’ida and the Taliban in Afghanistan. Its approach changed radically after 9/11. By Resolution 1373 (2001), adopted under ChapterVII of the UN Charter, the UN Security Council directed all States to criminalise terrorism in domestic law (as well as universalising the offences in the patchily ratified 1999 Terrorist Financing Convention). Resolution 1373 did not define terrorism for the purpose of national criminalisation, resulting in decentralised and haphazard national implementation. Many states utilised the authority of the resolution to define terrorism to suit their own political purposes or to camouflage assaults on fundamental civil and political rights. The enactment of excessively wide national definitions of terrorism after 9/11 has raised important human rights concerns. The UN Human Rights Committee has frequently criticised the vagueness of national terrorism laws in monitoring compliance with the 1966 International Convention on Civil and Political Rights, including the principle of legality and non-retrospectivity in Article 15, non-discrimination and political freedoms.73 The UN Security Council’s Counter-Terrorism Committee (CTC) paid little attention to excessive national definitions of terrorism during the early phases of the reporting process, sending a problematic ‘message’ of encouragement to States with rights-violating definitions.74 Faced with an increasingly vociferous backlash from human rights bodies and civil society, in Resolution 1566 (2004) the Security Council eventually signalled its conception of terrorism as: … criminal acts, including against civilians, committed with the intent to cause death or serious bodily injury, or taking of hostages, with the purpose to provoke a state of terror in the general public or in a group of persons or particular persons, intimidate a population or compel a government or an international organisation to do or to abstain from doing any act, which constitute offences within the scope of and as defined in the international conventions and protocols relating to terrorism, are under no circumstances justifiable by

72

73 74

32

See the relevant state reports to the UN Security Council’s Counter-Terrorism Committee under Resolution 1373 (2001), available at www.un.org/en/sc/ctc/resources/1373.html accessed 14 February 2015. OHCHR, Report on the Protection of Human Rights and Fundamental Freedoms while Countering Terrorism (A/HRC/8/13), paras 20–23. UN Special Rapporteur (Martin Scheinin), Report on the Promotion and Protection of Human rights and Fundamental Freedoms while Countering Terrorism (E/CN.4/2006/98, 28 December 2005), para 62.

Terrorism as a legal concept

considerations of a political, philosophical, ideological, racial, ethnic, religious or other similar nature, and calls upon all States to prevent such acts and, if not prevented, to ensure that such acts are punished by penalties consistent with their grave nature….75 The cumulative elements define conduct as terrorism only: (a) when it is committed to harm people, (b) with the purpose to provoke a state of terror, or to intimidate a population, or to compel a government or an international organisation, and (c) and where such conduct also constitutes an offence under the existing sectoral treaties. It thus reclassifies as ‘terrorism’ existing crimes where they are designed to terrorise, intimidate or compel. The UN Special Rapporteur is satisfied that it reflects a narrow and rights-respecting concept of terrorism.76 This is only a working definition that does not require states to conform their laws to it. By 2004, many states had already modified their laws and were not going to revise them in light of a mere recommendation by the Council, particularly one which would confine state freedom of definition. Extraordinarily, the UN Office of Drugs and Crime, in its model terrorism laws, provides five different options to states to define terrorism, none of which is strictly modelled on Resolution 1566, and two of which are based on the extremely wide and rightsviolating definitions in African and Commonwealth of Independent States (CIS) regional treaties.77 Resolution 1566 nonetheless establishes ‘soft’ guide-posts for implementing Resolution 1373 and subsequent resolutions, which over time may stimulate national convergence. The Security Council’s Counter-Terrorism Directorate also utilises this definition in its dialogue with states. The Council has, however, continued to adopt obligatory measures against terrorism without mandating an operative definition in specific resolutions, as with Resolution 2178 (2014) on so-called foreign fighters requiring states to prevent the ‘recruiting, organizing, transporting or equipping of individuals who travel to a State other than their States of residence or nationality for the purpose of the perpetration, planning of, or participation in terrorist acts’.

National legal concepts of terrorism after 9/11 After 9/11, there was rapid and far-reaching national legislative change, as evidenced in states’ mandatory reports to the Security Council’s CTC about their implementation of Resolution 1373.78 Analysis of these state reports reveals three main patterns in national legal responses.79 Almost half of states (eighty-seven) do not treat terrorism as a special offence and still utilise ordinary offences (such as murder and the like). This dominant approach is, however, being eroded by the Council’s push to reform laws. Roughly the other half of states establish special or ‘generic’ terrorism offences: forty-six states have simple generic terrorism offences and forty-eight states have composite generic terrorism offences. All ‘generic’ offences involve an intent to commit a violent and/or criminal act, to life or property, although the specification of acts varies greatly. Simple generic offences comprised a single additional element qualifying the physical act; composite generic offences are constituted by cumulative qualifying elements. 75 76 77 78 79

UNSC resolution 1566 (8 October 2004), para 3. UN Special Rapporteur, above, para 42. UNODC, Model Legislative Provisions against Terrorism (Vienna 2009), 23–26. CTC (Chair), Guidance Note for the Submission of Reports: UNSC Resolution 1373 (2001), para 3(2). State reports to CTC are available at: www.un.org/en/sc/ctc/resources/1373.html accessed 10 March 2015. 33

Ben Saul

(a) Terrorism as ordinary crime

As regards the ‘ordinary crime’ approach, the physical harm, or threat of harm, is the decisive factor in the legal response, rather than additional qualifying elements (such as a political motive or special intent to intimidate a population or coerce a government). Some states treat terrorism as ordinary crime to prevent legitimising terrorists as ‘political’ offenders.80 Sometimes terrorism is subsumed by existing special offences on public order or state security (and can also be dealt with by special powers relating to these traditional categories). Some states have enacted legal definitions of terrorism for purposes other than creating a new offence of terrorism. Sometimes such definitions are still connected with the criminal law. For example, in the UK,81 US,82 Israel83 and Germany,84 the legal definition of terrorism does not establish a new offence of terrorism as such, but enlivens ancillary, inchoate, preparatory terrorism or terrorist organisation offences (as well as special powers). In other states, legal definitions of terrorism aggravate the penalty in sentencing for ordinary offences (as in Spain), trigger military court jurisdiction (as in Israel between 1948 and 1980, or Spain before 1978) or modify procedural rules (as to evidence, the standard or burden of proof, the presumption in favour of bail or lawyer–client confidentiality). Terrorism can also be relevant to whether an offence is non-political in extradition and refugee law. Outside the criminal law, legal definitions of terrorism serve myriad purposes: special investigative or preventive police powers; intelligence gathering; administrative, preventive, or extended detention; control orders; civil powers to freeze or seize assets and disrupt financing; victims’ compensation; immigration controls; exclusion from refugee status; exceptions to foreign state immunity for state-sponsors of terrorism; jurisdictional considerations; modifying procedural rules; transnational legal cooperation; insurance and private regulatory regimes; triggering institutional safeguards or human rights supervision; or for budgetary or administrative purposes. (b) Simple generic terrorism offences

National laws that define terrorism by including generic qualifying elements are diverse. For instance, at the narrow end of the spectrum, nine states define terrorism as violence intended to terrorise or intimidate people,85 echoing the 1937 League of Nations Convention. Three states define terrorism as coercing or intimidating a state or international organisation,86 regardless whether it is politically or privately motivated. Eight states define terrorism as either putting civilians in fear or coercing a government or international organisation,87 suggestive of the 1999 Terrorist Financing Convention and UN Draft Comprehensive Convention. The USA PATRIOT Act 2001, section 802 takes a similar approach, defining terrorism as violence

80 81 82 83 84 85 86 87 34

C Walker, ‘Irish Republican prisoners, political detainees, prisoners of war or common criminals?’ (1984) 19 Irish Jurist 189. Terrorism Act 2000, s 1. E.g. the Anti-Terrorism and Effective Death Penalty Act 1996 (US) creates an offence of providing material support for terrorism. The USA PATRIOT Act 2001, s 802. German Criminal Code, s 129a (offence of forming a terrorist organisation). Albania, Algeria, Colombia, Cyprus, Ecuador, El Salvador, Lebanon, Syrian Arab Republic,Tunisia. Hungary, Latvia, Mongolia. Azerbaijan, Belarus, Bolivia, Chile, Lithuania, Mozambique,Thailand,Tonga.

Terrorism as a legal concept

intended to intimidate or coerce a civilian population, or influence government policy or conduct by intimidation or coercion. At the broader end of the spectrum, ten states define terrorism as violent acts that damage, weaken or oppose the state or the constitutional, public or economic order, or the state’s territorial integrity.88 These definitions are more like broad, traditional national security or public order offences, re-labelled as terrorism. The broadest end of the spectrum includes definitions presenting, as alternatives, multiple simple generic definitions. Six states define terrorism as violence putting civilians in fear, or harming interests such as public order, safety, security, democracy or the state,89 the environment, public facilities or resources.90 A further seven states define terrorism as violence putting civilians in fear, or coercing a government or international organisation, or harming public safety, order, security, independence, integrity or the State’s foundations.91 One state defines terrorism as violence putting civilians in fear, or for political ends;92 while another defines it as violence motivated by politics or religion, or to provoke war or conflict.93 (c) Composite generic terrorism offences

Composite generic offences require proof of multiple generic elements and thus narrow liability. Thirteen states define terrorism as violence putting civilians in fear, in order to disrupt public order, safety, peace, the state or constitution; or conversely define terrorism as disrupting order to put civilians in fear.94 One state defines terrorism as putting civilians in fear to coerce a government or international organisation,95 while another adds the further alternative of jeopardising the constitutional, political or economic values of a state or an organisation.96 A further state refers to putting civilians in fear to either to coerce a government, disturb the peace or undermine state authority.97 Seven common law states define terrorism as violence for a political or other motive (such as religion or ideology), aiming to (i) coerce a government or international organisation, or (ii) intimidate a population or civilians.98 This category resembles the 1994 UN General Assembly definition, but broadens it by adding the alternative of coercing a government or international organisation. The inclusion of a political or related motive element both narrows the definition of terrorism but also carefully distinguishes terrorism from more ‘private’ crimes which intimidate people or coerce governments.99

88 89 90 91 92 93 94 95 96 97 98 99

Armenia, Czech Republic, Guatemala, Malaysia, Nicaragua, Slovakia, South Africa, Spain, Turkey, Vietnam, Zimbabwe. Egypt, India, Italy, Myanmar, Nepal. Sudan. Finland, Iceland, Moldova, Kazakhstan, Kyrgyzstan, Portugal, Russia,Turkmenistan. Maldives. Estonia. Denmark; Djibouti, France, Guinea, Jordan, Macedonia, Morocco, Peru, Qatar, Romania, Senegal, Serbia and Montenegro, Slovenia. Iran. Croatia. Mexico. Australia, Belize, Canada, New Zealand, Pakistan, South Africa, UK. Israel’s draft Terrorism Law also contains a motive element. See B Saul, ‘The curious element of motive in definitions of terrorism: essential ingredient – or criminalizing thought?’ in A Lynch, E MacDonald and G Williams (eds), Law and Liberty in the War on Terror (Federation Press, Sydney, 2007) 28. 35

Ben Saul

The EU defines terrorism as acts that seriously damage a state and (i) intimidate a population; (ii) coerce a government or international organisation; or (iii) destroy fundamental structures.100 Unlike the previous category, there is no requirement of a political or other motive. Another state similarly defines terrorism as violence affecting public security or state interests, by putting civilians in fear or coercing a state or organisation.101 Finally, one state defines terrorism as coercing a state or international organisation for the purpose of disturbing international relations, causing war or destabilising the state.102

Terrorism as a customary international law crime? In 2011, the Appeals Chamber of the hybrid UN Special Tribunal for Lebanon, established to prosecute terrorist bombings in Lebanon in 2005, purported to identify an extant customary international crime of terrorism in peacetime, and applied it in interpreting domestic terrorism offences under Lebanese law.103 The crime consists of three elements: (i) the perpetration of a criminal act (such as murder, kidnapping, hostage-taking, arson and so on), or threatening such an act; (ii) the intent to spread fear among the population (which would generally entail the creation of public danger) or directly or indirectly coerce a national or international authority to take some action, or to refrain from taking it; (iii) when the act involves a transnational element.104 The requirement of a transnational element105 rules out purely domestic terrorism. While the Tribunal recognised only peacetime terrorism as a crime, it indicated that ‘a broader norm that would outlaw terrorist acts during times of armed conflict may also be emerging’.106 The generic elements of the offence are suggestive of the definition in the 1999 Terrorist Financing Convention and the UN Draft Comprehensive Convention. It is broader than the narrow, rights-respecting definition offered by the Security Council in Resolution 1566. The Appeals Chamber acknowledged that a political or other motive element (as found in some common law definitions, mentioned above) would narrow the definition, prevent its over-expansive application, and further the principle of legality, but felt it was not yet part of the customary law definition, even if it might become so in future.107 In reaching its conclusion, the Appeals Chamber found that the thirty-seven national terrorism laws it cited are broadly ‘concordant’ and evince ‘a widespread stand on and a shared view of terrorism’.108 In particular, it was stated that ‘[e]lements common across national legislation defining terrorism include the use of criminal acts to terrorise or intimidate populations, to coerce government authorities, or to disrupt or destabilise social or political structures’.109 100 101 102 103

104 105 106 107 108 109 36

2002 EU Framework Decision, above, article 1. The UK continues to prosecute terrorism as ordinary crime: CTC Report: UK, UN Doc S/2002/787 (19 July 2002), 6. Georgia. Uzbekistan. UN Special Tribunal for Lebanon (Appeals Chamber), Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, STL-11-01/I, 16 February 2011 (‘STL Decision’). STL Decision, ibid, [85]. Ibid, [90]. Ibid, [107]; see generally [107–9] [10]. Ibid, [106]. Ibid, [92]. Ibid, [93].

Terrorism as a legal concept

National laws can certainly provide evidence of state practice in the formation of customary international law. However, the Appeals Chambers’ conclusion is highly dubious. It conflates national laws addressing national and international terrorism and of varying jurisdictional reach. It conflates criminal definitions with non-criminal definitions. Further, close inspection of the national laws cited shows that many of the laws do not converge at all, but represent fundamentally different conceptions of terrorism, including civil war and sectarian strife (Iraq), public disorder (Egypt), constitutional subversion (Peru), harm to international relations, sovereignty or territorial integrity (Uzbekistan) or violation of honour (Saudi Arabia). Looking beyond the limited number of thirty-seven ‘best example’ laws cited by the Appeals Chamber, it is clear that legal approaches to terrorism in the bulk of national legal systems – including the 160 states not mentioned – are even more divergent. While the Appeals Chamber also invokes Security Council Resolution 1566,110 that Resolution does not support the Appeals Chamber’s definition precisely because it is narrowly pegged to sectoral treaty offences, whereas the Appeals Chambers’ definition is not. The other sources relied on – including UN General Assembly resolutions, international and regional treaties and national judicial decisions – also do not sustain the conclusion that terrorism is a customary international crime.111 Recent authoritative national court decisions have not accepted the view that there is an agreed international definition.112

Conclusion At one level, legal concepts of terrorism may be seen as strictly unnecessary: terrorist violence can usually be prosecuted as ordinary crime. At the same time, however, a legal concept of terrorism can add further elements to ordinary offences that differentiate it and thereby signal a social community’s condemnation of (for instance) instrumental political or religious violence intended to intimidate a population or coerce a government. Pragmatically, it can trigger special powers and procedures, and preventive offences and measures, all of which do not attach to ordinary offences. It can also facilitate transnational cooperation and extradition, and plug gaps in the existing ad hoc sectoral counter-terrorism treaties, although these advantages are largely dissipated where national laws define terrorism differently. Legal concepts of terrorism bring great risks too. Excessively wide or loose concepts of terrorism can seriously jeopardise internationally protected human rights. The absolutist politics of state survival and national security frequently taint the drafting and use of terrorism laws. Often the wide special powers and offences that attach to a definition, and the absence or degradation of ordinary safeguards, are even more dangerous to human rights. Terrorism laws make most sense when protecting a democracy from violent adversaries; less sense when they shield authoritarian states from those who rightly resist them. International agreement on terrorism in a diverse community of states has proved so difficult for this reason. Most minimally agree that the instrumental political killing of civilians in peacetime is terrorism. Beyond that, ‘terrorism’ is a contested terrain of innumerable political and moral opinions.

110 111 112

Ibid, [88]. See Saul ‘Legislating from a radical Hague’ (n 1). R v Gul (Appellant) [2013] UKSC 64 [44]; Al-Sirri v Secretary of State for the Home Department (UNHCR intervening) [2013] 1 AC 745 [37]. 37

3 Counter-terrorism, emergency, and national laws Mariona Llobet-Anglí and Aniceto Masferrer

In the name of security Terrorism is a criminal phenomenon that has struck, and still does strike, all corners of the globe. Instances of local organisations abound, which, through death and destruction, submit certain societies to violence and coercion.1 Spain and the UK are two of the countries that have experienced up close the barbarity of this form of criminality, at the hands of the armed groups Euskadi Ta Askatasuna (ETA)2 and the Irish Republican Army (IRA),3 respectively. Moreover, since the attacks of 11 September 2001, to that regional terrorism has been added a ‘global’ variety: ‘a limitless violence exerted by Islamic fundamentalists that threatens the maintenance of worldwide security’.4 This global terrorism has vented its violence through the attacks in Madrid on 11 March 2004, and in London on 7 July 2005. According to statistics, casualties inflicted by ETA amount to 829 up to the end of 2010.5 Even worse, the Irish organisation IRA has caused the deaths of more than one and a half thousand victims in Northern Ireland.6 As for the global terrorists, the attack of 11 March 2004 caused 190 fatalities,7 whereas the attack of 7 July 2005 left 52 people dead in the explosions

1 2 3

4 5

6

7

38

It is not the purpose of this paper to examine the definition of terrorism, on which see Chapter 2 (Saul) in this book. See M Cancio Meliá, Los delitos de terrorismo: estructura típica e injusto (Reus, Madrid, 2010) 21–22. L Martínez-Peñas and M Fernández-Rodríguez, ‘Evolution of British Law on Terrorism: From Ulster to Global Terrorism (1970–2010)’ in A Masferrer (ed.), Post 9/11 and the State of Permanent Legal Emergency (Springer, New York, 2012) 201. See F Reinares, Terrorismo global (Taurus, Madrid, 2003) 10. See the statistics of the ‘Fundación Víctimas del Terrorismo’ in www.fundacionvt.org/ index.php?option=com_dbquery&Itemid=82&task=ExecuteQuery&qid=1&previousTask accessed 7 February 2014. See M Sutton ‘An Index of Deaths from the Conflict in Ireland’ http://cain.ulst.ac.uk/sutton/ accessed 2 July 2014, according to which the IRA have killed 1,708 people, the ‘Official IRA’ fiftythree more and the ‘Real IRA,’ thirty-five. There have been, up to 2013, a total of 3,531 victims in the Northern Ireland conflict. See the statistics of the ‘Fundación Víctimas del Terrorismo’ in www.fundacionvt.org/ index.php?option=com_content&task=view&id=124&Itemid=98 accessed 7 February 2014.

Counter-terrorism, emergency, and national laws

in London.8 It goes without saying that, to all these murders, injuries, kidnappings and property damage must be added. In this way, faced with such an alarming and long-lasting situation, terrorism has always been of utmost importance in the political agendas of the democratic governments of both countries, regardless of their ideology. Additionally, this struggle has affected the legal systems of the countries where two main essential principles, concerning both persons and the States themselves,9 have conflicted with one another most profoundly: freedom and security.10 In the regulation of this conflict, there is an especially vehement collision of the guarantees of rights and of individual freedoms and the requirements of collective security,11 insofar as terrorism is perceived as an assault on the foundations of liberal, constitutional systems. Consequently, governments present the eradication of terrorism as justified by a dire need to preserve the State12 and link the effectiveness of such goal to the adoption of certain exceptional measures.13 Disparities between Spain and the UK in countering terrorism are primarily formal rather than substantial. The UK has reacted mostly with emergency legislation in the strict sense, meaning that legal dispositions have been created for a situation that is perceived as temporary or special.14 Spain, by contrast, has apparently tried less drastic measures. There, legal reforms have been made within the ordinary Criminal Code and with indefinite duration. Nevertheless, what unites both legal systems is that statutes have been approved in the spirit of the ‘criminal law of the enemy’ (Feindstrafrecht), and have gone beyond the boundaries of the classic criminal law. As is commonly known, a particular realm of criminal law has been in recent times defined as the ‘criminal law of the enemy’, which diametrically opposes the ‘criminal law of the citizen.’ The former is characterised by being ‘a criminal law that does not treat the offenders as citizens, that is, as subjects not having respected the minimum

8 9

10

11

12 13

14

See http://straightstatistics.org/article/shameful-delays-registering-77-deaths accessed on 7 February 2014. On the one hand, terrorism threatens not only individuals but also the state; on the other hand, the principles involved – freedom and security – are important not just to individuals but also to states: we think that freedom is important to the state because it is important to individuals but we do not see any additional value of freedom, which only speaks to states. See AI Pérez Cepeda, ‘El paradigma de la seguridad en la globalización: guerra, enemigos y orden penal’ in P Faraldo Cabana, LM Puente Aba and EM Souto García (eds), Derecho Penal de excepción. Terrorismo e inmigración (Tirant lo Blanch, Valencia, 2007) 95. As noted by M Cancio Meliá, the question posed is ‘whether our society is willing to succumb to the risks derived from terrorism or will be, otherwise, prepared to assume cutbacks in freedoms’ (‘Algunas consideraciones preliminares sobre los delitos de terrorismo: eficacia y contaminación’) in P Faraldo Cabana, LM Puente Aba and EM Souto García (eds), Derecho Penal de excepción. Terrorismo e inmigración (Tirant lo Blanch, Valencia, 2007) 163. See also A Masferrer (ed.), Estado de Derecho y derechos fundamentales en la lucha contra el terrorismo. Una aproximación multidisciplinar (histórica, jurídico-comparada, filosófica y económica) (Thomson Aranzadi, Cizur Menor, 2011); A Masferrer (ed.), Post 9/11 and the State of Permanent Legal Emergency (Springer, New York, 2012). J Terradillos Basoco, Terrorismo y Derecho (Tecnos, Madrid, 1988) 22. See J Moran, ‘Myths and misunderstandings about security, rights and liberty in the United Kingdom’ in A Masferrer and C Walker (eds), Counter-Terrorism, Human Rights and the Rule of Law (Edward Elgar, Cheltenham, 2013) 61. On the measures adopted by the UK during the conflict in Northern Ireland see G Hogan and C Walker, Political Violence and the Law in Ireland (Manchester University Press, Manchester, 1989) passim. On legislation following the attacks of 9/11 and 7/7 see C Walker, Terrorism and the Law (Oxford University Press, Oxford, 2011). Concerning the evolution of British counter-terrorist legislation from 1970 to 2010, see Martínez-Peñas and Ferández-Rodríguez (n 3) 201. 39

Mariona Llobet-Anglí and Aniceto Masferrer

requirements for coexistence enshrined in the criminal norms and precepts and who must be convicted, but in lieu of that, as enemies, as sheer sources of danger which must be neutralised however.’15 The latter denotes a criminal law that violates those citizens’ fundamental rights whose protection is supposed to constitute the raison d’être of the state itself. Furthermore, both in Spain and the UK, there has been a concealed agenda or dirty tricks against terrorism, encompassing activity from torture16 to the creation of semi-official groups (namely the Grupos Antiterroristas de Liberación in Spain).17 As a consequence, the freedom–security dichotomy in terms of terrorism has always tilted more to the side of security, reaching its apex at the beginning of this century due to the attacks of 11 September.18 In this chapter, we shall first expound the characteristics of the Spanish legal and judicial system, in order to underline that counter-terrorist legislation is exceptional in substance, albeit ordinary in form, which means that, in factual terms, it does not differ from British exceptional legislation. Second, we shall take a stand regarding the (il)legitimacy of a criminal law exclusively focused on combating dangers and pointing at the other (the enemy).

Legislation, legal reforms (or amendments) and case law for the ‘enemy’ Counter-terrorism laws in Spain display unique features, not only in their procedural ambit, but also in their substantive and penitentiary features. Still, no exceptional or emergency laws exist. The laws governing the particularities of the terrorist phenomenon are located in the corpora leges common to all criminal matters. Those are: the Criminal Code,19 concerning substantive questions; the Criminal Procedural Law,20 which deals with procedural norms and the General Penitentiary Organic Act,21 regulating the execution of custodial sentences. All of

15 16

17 18

19 20 21 40

M Cancio Meliá, ‘“Derecho penal” del enemigo y delitos de terrorismo’ (2002) 44 Jueces para la Democracia 19, 20. See, for example, RS Gerstein,‘Tienen derechos los terroristas?’ in DC Rapoport (ed.), La moral del terrorismo (Ariel, Barcelona, 1985) 104, who alludes to the use of sensorial deprivation used during the questioning of IRA suspects by the armed security forces in Northern Ireland, originating in the events of 9 August 1971 (see Sir Compton Report of the enquiry into allegations against the Security Forces of physical brutality in Northern Ireland, arising out of the events of 9th August, 1971 (Cm 4823, London, 1971) 15–17; Lord Diplock Report of the commission to consider legal procedures to deal with terrorist activities in Northern Ireland (Cmnd 5185, London, 1972). In Spain, many people have been allegedly tortured (Amnesty, Poner Fin a la Detención Incomunicada en España (2009). Available at: www.amnesty.org/es/appeals-for-action/poner-fin-detencion-incomunicada-espana accessed 14 July 2014. See M Llobet-Anglí, Derecho Penal del terrorismo (La Ley, Madrid, 2010) 118. Similarly, R Bergalli, ‘Libertad y seguridad: Un equilibrio extraviado en la Modernidad tardía’ in MG Losano and F Muñoz Conde (eds), El derecho ante la globalización y el terrorismo (Tirant lo Blanch, Valencia, 2004) 32; F Muñoz Conde,‘El nuevo Derecho Penal autoritario: consideraciones sobre el llamado “Derecho Penal Enemigo”’ in G Portilla Contreras (ed.), Mutaciones de Leviatán: legitimación de los nuevos modelos penales (Akal, Madrid, 2005) 170; C Prittwitz, ‘La desigual competencia entre seguridad y libertad’ (2007) 7 Revista General de Derecho Penal 6; A Remiro Brotóns, ‘Terrorismo internacional, principios agitados’ in A Cuerda Riezu and F Jiménez García (eds), Nuevos desafíos del Derecho Penal Internacional. Terrorismo, crímenes internacionales y derechos fundamentales (Tecnos, Madrid, 2009) 18; and JL González Cussac, ‘El Derecho Penal frente al terrorismo Cuestiones y perspectivas’ in JL Gómez Colomer and JL González Cussac (eds), Terrorismo y proceso penal acusatorio (Tirant lo Blanch, Valencia, 2006) 59. Ley Orgánica (LO) 10/1995, of 23 November (Código Penal – CP). Royal Decree of 14 September 1882 (Ley de Enjuiciamiento Criminal – LECrim). LO 1/1979, of 26 September (Ley Orgánica General Penitenciaria – LOGP).

Counter-terrorism, emergency, and national laws

them have undergone three sweeping modifications with regard to terrorism since 2000 although none of these stemmed from the attacks of 11 March.22 In Spain, the stiffening of penalties has always been a reaction against the activity of ETA. First, many of the legislative reforms have been mainly symbolic, that is, they belong to what has been called ‘symbolic criminal law’, by seeking to ‘transmit a message or value judgments to society’, without being able to ‘modify the social reality by preventing the commission of undesired behaviours’.23 Thus, these laws do not aim at the protection of legal goods but to have a calming effect on society. Second, the aforementioned reforms have permanently expanded the crimes and penalties related to terrorism.24 That is why it could be said that, even assuming that Spanish counterterrorism legislation is an ‘ordinary exceptionality’ in form, it is, in the cold light of day, exceptional in substance. In this vein, some criminal lawyers have clearly highlighted that such legislation constitutes a prime example of the ‘criminal law of the enemy,’25 as it presents the attributes, according to Jakobs,26 inherent to such criminal law: ‘slackening or suspension of certain procedural safeguards’,‘remarkable comparative increment of penalties face to ordinary criminal law’ and ‘wide anticipation of punishability.’27 Likewise, Spanish courts have recently passed judgments that have also brought into question principles and classic safeguards of liberal criminal law, by expanding quantitatively and qualitatively the definition of the terrorist crime.28 This can be viewed as ‘a legal Guantánamo’, since it entails effects akin to the ones seen in the Guantánamo Bay Naval Base, but purporting to veil it under legal legitimacy, as expanded upon below. This established, we shall proceed to expose, first, the most significant exceptions existing in counter-terrorist matter, despite the fact that, as previously remarked, they are embedded within common legal texts. At a second stage, we shall analyse the ‘criminal case-law of the enemy’, whose scope is so wide that it even includes the ‘friends’ of the aforesaid.

22

23 24

25

26

27 28

Note that the legislative reactions by the British and Spanish governments following the attacks in London and Madrid, differ quantitatively and qualitatively. About the reforms after the 7th July bombings see Walker (n 14) and Martínez-Peñas and Fernández-Rodríguez (n 3) at 214. JL Díez Ripollés, ‘El derecho penal simbólico y los efectos de la pena’ (2001) 1 Actualidad Penal 3. First, the LO 7/2000, of 22 December, reintroduced as crimes statements in support of terrorism (art 578 CP). Second, the LO 7/2003, of 30 June, on the Whole and Effective Execution of Sentences, was elaborated to tighten both the amount and the execution of prison penalties for terrorist criminals. Last, the LO 5/2010, of 22 June, on the reform of the Criminal Code, introduced probation. A Asúa Batarrita, ‘El discurso del enemigo y su infiltración en el Derecho Penal. Delitos de terrorismo, ‘finalidades terroristas’ y conductas periféricas’ in M Cancio Meliá and C Gómez-Jara Díez (eds), Derecho Penal del enemigo. El discurso penal de la exclusión I (Edisofer, Madrid, 2006) 248; Cancio Meliá Los delitos de terrorismo (n 1) 77; J Damián Moreno, ‘Un Derecho Procesal de enemigos?’ in M Cancio Meliá and C Gómez-Jara Díez (eds), Derecho Penal del enemigo. El discurso penal de la exclusión I (Edisofer, Madrid, 2006) 463; and G Jakobs, ‘Derecho Penal del ciudadano y Derecho penal del enemigo’ in G Jakobs and M Cancio Meliá, Derecho penal del enemigo (2nd edn, Civitas, Navarra, 2006) 46. An author who, in three stages, has instituted this term in recent theoretical discussion: 1985, 1999/2000 and 2003/2005. Cf M Cancio Meliá, ‘De nuevo: ‘Derecho penal’ del enemigo?’ in G Jakobs and M Cancio Meliá, Derecho penal del enemigo (2nd edn, Civitas, Navarra, 2006), 88, fn 1 and 111, fn 40. Cancio Meliá ‘Algunas consideraciones preliminares sobre los delitos de terrorismo’ (n 11) 21; Cancio Meliá ‘De nuevo’ (n 26) 79–81, fns 34–35. Reinares, Terrorismo global (n 4). 41

Mariona Llobet-Anglí and Aniceto Masferrer

Ordinary exceptionality Relativisation of procedural rights In the province of criminal procedure, as is the case for the Spanish Constitution (CE),29 ordinary legality foresees a series of exceptions in relation to the investigation of terrorism crimes. Therefore, certain fundamental rights and procedural safeguards of the terrorists are subject to norms less tightly drawn than those for other crimes. Thus, preventive detention can extend up to 48 hours more than the normal limit (72 hours), reaching thus five days.30 Similarly, there is a possibility of dispensing with the ordinary requirements of judicial authorisation previous to search and seizure orders and the wire tapping of conversations (para entradas y registros del domicilio y para la intervención de las comunicaciones).31 In addition, the five days of police custody can take place in conditions of incommunicado detention, which can reach up to thirteen days, the last eight being carried out in a provisional detention incommunicado regime (that is, under court authority rather than in the police headquarters). It is, ultimately, an exceptional, bitterly criticised regime that might facilitate the practice of torture.32

The extreme severity of penalties in terrorism-related crimes Currently, the severity of punishment in the ambit of terrorism is threefold: first, penalties for common offences committed in the framework of these circumstances augment; second, the upper limit in cases where multiple crimes were committed is fixed at forty years; and, third, once the prison sentence ends further probation measures are imposed. In terms of the augmentation of penalties for common offences, all common offences committed by those belonging to, or collaborating with, a terrorist organisation are subject to aggravated penalties under Articles 572 to 574 of the Criminal Code (CP). That is how, for example, an ordinary homicide (article 138 CP) carries a prison sentence of ten to fifteen years, whereas a terrorist homicide is punished with a sentence of twenty to thirty years.

29 30 31

32

42

See Constitución Española (CE) art 55. See art 509 LECrim. See art 55.2 CE and the LO 4/1988, 25 May, on the reform of the Criminal Procedural Act, which develops that precept. The decision of the Spanish Constitutional Court (STC 717/1994, of 3 March) determines the requisites so that the legal development of art. 55 CE is constitutional. See M Catalina Benavente, ‘Los supuestos de detención en los casos de terrorismo: propuesta para una reforma’ in P Faraldo Cabana, LM Puente Aba and EM Souto García (eds), Derecho Penal de excepción.Terrorismo e inmigración (Tirant lo Blanch, Valencia, 2007) 171. I Sánchez García de Paz, ‘Alternativas al Derecho Penal del enemigo desde el Derecho Penal del ciudadano’ in M Cancio Meliá and C Gómez-Jara Díez (eds), Derecho Penal del enemigo. El discurso penal de la exclusión II (Edisofer, Madrid, 2006) 874; I Sánchez García de Paz, ‘Problemas de legitimidad de una respuesta excepcional frente a las organizaciones criminales’ in M Cancio Meliá and L Pozuelo Pérez (eds), Política criminal en vanguardia. Inmigración clandestina, terrorismo, criminalidad organizada (Civitas, Navarra, 2008) 485; H Olásolo Alonso and I Pérez Cepeda, Terrorismo internacional y conflicto armado (Tirant lo Blanch,Valencia, 2008) 68; and AI Pérez Machío, ‘La detención incomunicada en los supuestos de terrorismo: una medida lesiva de derechos humanos?’ in JL De La Cuesta and I Muñagorri, Aplicación de la normativa antiterrorista (Instituto Vasco de Criminología, Donostia-San Sebastián, 2008) 176 and 184. See also (n 16).

Counter-terrorism, emergency, and national laws

Since 2003, the upper limit of a term of imprisonment is, exceptionally, albeit not only for terrorism offences, forty years (instead of thirty years, as hitherto). Specifically, this is applicable in the event of the commission of two or more terrorism crimes, at least one of them being homicide (article 71.1.d. CP). Moreover, given that parole is discretionary (in cases of conviction for terrorism crimes, articles 90 ff. CP), terrorists may be kept imprisoned for the whole duration of their sentence.33 Concretely, the requisites that must be fulfilled (in cases of terrorism crimes) for obtaining parole are an express declaration renouncing, and repudiating, violence and the issuing of an apology to the victims.34 As can be observed, these criteria are susceptible to criticism from a perspective that is consistent with the bedrock of a democratic State,35 in which re-socialisation should merely imply ‘that in the future a subject does not commit crimes again in the society independently of what they might personally think in one way or another.’36 In other words, in order to obtain parole in cases of terrorism crimes, it should be pivotal not to renounce past behaviour but to compromise future behaviour. Turning to probation, since the enactment of the Ley Orgánica (LO) 5/2010, it is possible to impose probation measures of up to ten years that oblige those convicted of terrorism crimes to always be traceable, be it by means of electronic devices or otherwise (article 106.1 CP), at the end of the prison sentence (article 579.3 CP). It naturally follows that it is possible for someone to be sentenced for terrorism for up to fifty years (meaning forty years’ imprisonment and an additional ten years when they must be traceable at all times.

Pre-emptive punishment Spanish law not only punishes the effective commission of terrorist acts, but also behaviour that comes nowhere near to causing effective harm to individual interests (efectiva lesión de bienes jurídicos individuales), hence raising doubts about their legitimacy.37 Thus, article 571 CP

33

34

35 36

37

This way, exceptions are introduced that can well be termed ‘Prison Law of the enemy’ (cf Sánchez García de Paz ‘Alternativas al derecho penal del enemigo’ (n 32) 878; P Faraldo Cabana, ‘Un derecho penal de enemigos para los integrantes de organizaciones criminales’ in P Faraldo Cabana (ed.), Nuevos retos del derecho penal en la era de la globalización (Tirant lo Blanch, Valencia, 2004) 299; and L Gracia Martín, ‘Consideraciones críticas sobre el actualmente denominado “Derecho penal del enemigo”’ (2005) 07-02 Revista Electrónica de Ciencia Penal y Criminología 11. See P Faraldo Cabana ‘Medidas premiales durante la ejecución de condenas por terrorismo y delincuencia organizada: consolidación de un subsistema penitenciario de excepción’ in M Cancio Meliá and C Gómez-Jara Díez (eds), Derecho Penal del enemigo. El discurso penal de la exclusión I (Edisofer, Madrid, 2006) 784; JM Landa Gorostiza,‘Delitos de terrorismo y reformas penitenciarias (1996–2004)’ in M Cancio Meliá and C Gómez-Jara Díez (eds), Derecho Penal del enemigo. El discurso penal de la exclusión II (Edisofer, Madrid, 2006) 198; and NJ De la Mata Barranco, ‘Las reformas penales de 2003’ in P Faraldo Cabana, LM Puente Aba and EM Souto García (eds), Derecho Penal de excepción.Terrorismo e inmigración (Tirant lo Blanch, Valencia, 2007) 23–24. See L Ferrajoli,‘La legge sulla dissociazione: un nuevo prodotto della cultura dell’emergenza’ (1987) 2 Questione giustizia 271. M Acale Sánchez, ‘Terrorismo, delincuencia organizada y sistema de penas’ in P Faraldo Cabana (ed.), Nuevos retos del derecho penal en la era de la globalización (Tirant lo Blanch, Valencia, 2004) 366, text and fn 62. Cf JM Silva Sánchez, ‘“Pertenencia” o “intervención”? Del delito de “pertenencia a una organización criminal” a la figura de la “participación a través de organización” en el delito’ in E Octavio de Toledo y Ubieto, M Gurdiel Sierra and E Cortés Bechiarelli (eds), Estudios penales en recuerdo del profesor Ruiz Antón (Tirant lo Blanch, Valencia, 2004) 1.069. 43

Mariona Llobet-Anglí and Aniceto Masferrer

punishes the members of terrorist organisations regardless of their participation in, or connection to, specific crime. The penalties set for these crimes are very high: six to twelve years of imprisonment for ordinary members and eight to fourteen years for the directors and promoters. Article 576 CP criminalises collaboration with armed bands. Again, it is a crime for anyone, even if not a member, to make contributions to the activities undertaken by a terrorist organisation, regardless of the commission of a specific crime or whether such a crime’s existence cannot be proven or demonstrated. Thus, sentences of between five and ten years’ imprisonment are imposed for acts of collaboration with terrorist groups including information on, or surveillance of, persons, property or installations; construction, conditioning, assignment or use of accommodation or storage facilities; concealment or transport of individuals related to terrorist organisations or groups; and organisation of training practices or attending them and, in general, any other equivalent form of co-operation, aid or mediation, economic or of any other kind whatsoever, with the activities of those terrorist organisations or groups. Together with the material contributions offence above, article 578 CP specifies apology (enaltecimiento or justificación) of terrorism crimes or of their perpetrators. It is consequently a crime of opinion.38 The legislator punishes the expression of ideas in favour of terrorism crimes and their authors, that is, it criminalises the thought that exalts or justifies violence as a means of political struggle. As it stands, its central, insoluble problem is that it sanctions political dissidence that is publicly demonstrated,39 undermining freedom of expression both in its manifestation as an individual basic liberty and in its configuration as a constituting element of the political, democratic system.40 Furthermore, Spanish Courts have interpreted this offence widely in relation to events in which there are ‘rituals of cohesion of the social segment identified with the legitimacy’ of ETA,41 to include: issuing statements that identify the demonstrator with ETA’s armed struggle thesis as a way to attain the right to self-determination;42 paying homage to a member and leader of the terrorist organisation ETA, as well as defender and ideologist of the free determination of the Basque Countries;43 and extolling ETA prisoners for not having surrendered to the Spanish ideology.44

38

39

40 41 42

43 44

44

In this line, Cancio Meliá Los delitos de terrorismo (n 2) 286; C Lamarca Pérez,‘Apología: un residuo de incriminación de la disidencia’ (2007) 28 La Ley Penal: Revista de Derecho Penal, Procesal y Penitenciario 41; and Terradillos Basoco (n 12) 19. See further: P Sánchez-Ostiz Gutiérrez, ‘La tipificación de conductas de apología del delito’ in M Cancio Meliá and C Gómez-Jara Díez (eds), Derecho Penal del enemigo. El discurso penal de la exclusión II (Edisofer, Madrid, 2006) 910. B Feijóo Sánchez, ‘Recensión a Die Strafbarkeit des AuschwitzLeugnens’ (2000) 53 Anuario de Derecho Penal y Ciencias Penales 1.187. See STC 235/2007, of 7 November. Cancio Meliá Los delitos de terrorismo (n 2) 278. STSJ-País Vasco of 31 March 2004 (although the SAN of 23 March 2007 absolved that subject because the prosecution withdrew the accusation; on the case, see JA Ramos Vázquez, ‘Sobre la particular lógica de los procesos por delitos de terrorismo’ in P Faraldo Cabana, LM Puente Aba and EM Souto García (eds), Derecho Penal de excepción. Terrorismo e inmigración (Tirant lo Blanch, Valencia, 2007) 371. Spanish Tribunal Supremo, STS of 20 June 2007. STS of 26 February 2007 (see the commentary by M Llobet-Anglí, ‘El fin justifica los medios?’ (2007) 60 Anuario de Derecho Penal y Ciencias Penales 497.

Counter-terrorism, emergency, and national laws

‘Criminal case-law of the enemy’: The ‘legal Guantánamo’ It is crucial to show that, along with these legal reforms, there have been changes in the interpretation of certain legal provisions in Spain so that some of the most distinctive, counter-terrorism measures taken in recent years have not come from ‘ordinary’ legal changes, but from case law that has interpreted in a broader way legal dispositions that have not been changed in the most recent legal reforms. In this way, case-law has widened terrorism offences, expanding both the scope of the crimes and the penalties that can be awarded. What is more, scope and penalty are precepts freely interpreted by the judge.45 This means that the legality principle is in serious jeopardy, from its lex certa perspective, which peremptorily requests legal security, and its lex praevia, which proscribes unfavourable retroactivity. Particularly, two types of judgments can be distinguished: a first group has aimed to keep imprisoned individuals sentenced for terrorism years ago and who, by application of penitentiary laws applying at the moment of the commission of their felonies, have seen their effective imprisonment shortened. In essence, this first class of judgments is destined to combat the captured enemies, the most resounding example being the Parot case. A second group of judgments is intended to fight the ‘enemies’ friends’, that is to say, the subjects and networks that share terrorist means and ends.46 That is why, in practice, after 2000, the fight against terrorism has included the prosecution of the ideological and political networks linked to terrorist groups, such as the so-called ‘izquierda abertzale’ (patriotic left [in Basque]) or Movimiento de Liberación Nacional Vasco (MLNV) (Free Basque Nation Movement).

The Parot case: The illegal detention of a terrorist The Parot case is a tale with legal drama but luckily with a happy ending. The Spanish Tribunal Supremo (TS), in its judgment of 28 February 2006, reinterpreted the method of calculating the remission of sentences. Until 1995, when the previous sentence adjustment (beneficio) was abrogated (article 100 CP 1973), prisoners could shorten their term of imprisonment by one day for every two days of prison work. This was applied without reference to the nature of the offence that had resulted in imprisonment, or to the prior criminal record of the prisoner. So, in practice, any prison sentence was reduced by a third of its original duration, no matter the criminal record of the convicted (by means of an illustration, the death of hundreds of people, as occurred in the cases of the most murderous ETA terrorists). As a consequence, though under the operation of the 1973 Criminal Code, the maximum legal conviction was thirty years, the remission of sentence for work triggered release after twenty years, having fulfilled two-thirds of the sentence. The Parot doctrine changed this grant of remission. In particular, it sought to reinstate the full range of sentencing terms, up to the thirty-year maximum. According to this new approach, sentence adjustments and remissions were no longer to be applied to the maximum term of imprisonment (condena) of thirty years, but successively to each of the sentences (pena) imposed. With this new interpretation, the TS strayed from all previous precedents. Previously the doctrine of the courts had been unanimous, as had the practice of the other legal operators

45

46

See I Ortiz de Urbina Gimeno, ‘¿Leyes taxativas interpretadas libérrimamente? Principio de legalidad e interpretación del Derecho Penal’ in JP Montiel (ed.), La crisis del principio de legalidad en el nuevo Derecho Penal (Marcial Pons, Madrid, 2012) 173. Cf Asúa Batarrita (n 25) 255, text and fn 50. 45

Mariona Llobet-Anglí and Aniceto Masferrer

(particularly prison officers) that unanimously considered the final term to be served to be thirty years, for prison fulfilment purposes.47 Be that as it may, the ‘Parot doctrine’ was endorsed by the Constitutional Court.48 Notwithstanding the views of the Spanish judges, the ECtHR drew a different conclusion, as it inferred that such doctrine had encroached upon the principle of legality (Article 7 ECHR) and the right to liberty (Article 5 ECHR).49 In brief, the Strasbourg Court ruled that, since the interpretative change of direction by the TS in the Parot case had been unforeseeable and had brought about the unfavourable modification of her penalty, there had been a violation of the right to legal certainty in criminal matters (by applying an unfavourable disposition retroactively). It equally considered the right to freedom to have been infringed, as the detention following the date when the release applied did not respect legality (it was not a regular privation subsumable within article 5 ECHR).50

Criminal law of the ‘enemies’ friends’: Ideological belonging In principle in liberal criminal law, ‘belonging’ to a terrorist (or criminal) organisation must mean more than embracing the ideology of the group. Correspondingly, formal integration should not be punished,51 but there should be some kind of material or logistical support instead, either through facts or experiences.52 From this standpoint, for the attribution of criminal responsibility, the subjects must engage in some conduct contributing to the criminal activities of the armed group:53 a member must be an active one.54 The category of those merely affiliated cannot be legitimately punished, as they would be situated in the orbit of a criminal law more focused upon supposed criminals than upon criminal offences (derecho penal de autor in Spanish; täterstrafrecht in German).55 Likewise, groups merely supporting, either politically or through the media, a political terrorist organisation can be deemed neither as a criminal nor as a terrorist organisation, much as they share ends or ideology – although such assertions do not imply that they must be

47 48 49 50

51

52 53

54

55

46

Cf M Llobet-Anglí,‘El caso Parot’ in P Sánchez-Ostiz Gutiérrez (ed.), Casos que hicieron doctrina en Derecho Penal (La Ley, Las Rozas, 2011) 895. ATC 179/2010. Del Río Prada v Spain, App No 42750/09, 10 July 2012 (Third Section), 21 October 2013 (Grand Chamber) (2014) 58 EHRR 37. Agreement of the Second Chamber of the TS, of 11 November 2013. On the Parot case, see D Rodríguez Horcajo, ‘“Nulla poena sine lege”, materialismo y retroactividad de cambios jurisprudenciales: la “doctrina Parot” y la STEDH as. Del Río Prada c. España (21/10/2013) como banco de pruebas’ (2014) XLI-1 Revista de Ciencias Penales 219. See further: Cancio Meliá Los delitos de terrorismo (n 2) 159–160; Silva Sánchez ‘“Pertenencia” o “intervención”?’ (n 37) 1.076, with further references; Sánchez García de Paz ‘Alternativas al Derecho Penal del enemigo’ (n 32) 473; and JM Paredes Castañón,‘Límites sustantivos y procesales en la aplicación de los delitos de integración y de colaboración con banda armada’ (2008) 6.906 La Ley 3. Silva Sánchez ‘“Pertenencia” o “intervención”?’ (n 37) 1.077–1.078; and Paredes Castañón (n 51) 3. See further: A García-Pablos de Molina, ‘Asociaciones ilícitas y terroristas’ in M Cobo del Rosal and M Bajo Fernández (eds), Comentarios a la Legislación Penal. El Derecho Penal del Estado Democrático II (Edersa, Madrid, 1983) 158. As M Cancio Meliá notes, in a criminal organisation ‘no one registers filling in a form and paying the first membership fees,’ unlike in ‘an association for hamster breeders’ (‘El injusto de los delitos de organización’ (2007) 8 Revista General de Derecho Penal 33.) Similarly, Paredes Castañón (n 51) 2. For another opinion see N Pastor Muñoz, Los delitos de posesión y los delitos de estatus (Atelier, Barcelona, 2005) 62.

Counter-terrorism, emergency, and national laws

allowed to partake in political life.56 Nevertheless, Spanish Courts (especially the Audiencia Nacional) follow, de facto, a very formal conception of the crime of belonging to, and collaboration with, terrorist organisation to punish the ‘enemies’ friends’, namely sympathisers with ETA terrorists. First and foremost, the Sentencia de Audiencia Nacional (SAN) of 19 December 2007 declared the structure Koordinadora Abertzale Sozialista-Ekin (KAS-EKIN) – which managed the political, international and media apparatus of ETA – a terrorist organisation, because it was resolved that its activities ‘directly purported to contribute to the ends of the armed wing’ of ETA.57 Equally, yet the same result followed for the Egin newspaper, which embodied ETA’s mass-media power, broadcasting the propaganda of their secessionist ends and publishing their communiqués. Thereupon, the members were convicted on the grounds of belonging to and collaboration with a terrorist organisation,58 by virtue of the help provided for the purposes of ETA. Second, the SAN of 15 September 200859 branded the group Gestoras Pro-Amnistia, which facilitated the relationship between ETA and its imprisoned members, and which conveyed a public message about the reality of this group (being, in the eyes of the judgment, misleading and pursuing the attraction of new adepts), as a terrorist organisation. As a result, notwithstanding the fact that the acts of helping the prisoners constituted no activity stimulating the commission of felonies (or that could not be proved), penalties of eight years were imposed on the members and of ten years on the leaders, for having undertaken, as the judgment puts it, ‘activities on behalf of ETA’s subversive ends.’ Lastly, the political group Herri Batasuna (HB) has been regarded as terrorist. In effect, the courts have assumed that HB and ETA comprise a unique terrorist organisation, since HB, beyond accomplishing a political function,60 cooperated materially with ETA – a matter that remains obscure, given that the presumed contribution is not proven in any manner of resolution.61 For this reason, forty-one of its members are on trial for belonging to a terrorist organisation.62 In conjunction with that condemnation, the Auto Del Juzgado Central de Instrucción of 5 February 2008 impeached the representatives of a new, pro-independence, Basque party, Acción Nacionalista Vasca (ANV), on the grounds of integration in a terrorist band, as well as collaboration with armed band by lending money to HB.

56

57 58

59 60

61

62

In Spain, see LO 6/2002, of 27 June, on Political Parties, (de Partidos Políticos) and its analysis by F Herrero-Tejedor Algar, ‘La ilegalización de partidos políticos del entorno terrorista’ in JL Gómez Colomer and JL González Cussac (eds), Terrorismo y proceso penal acusatorio (Tirant lo Blanch, Valencia, 2006) 199; and the STS 27 March 2003, criminalising Herri Batasuna, Euskal Herritarrok and Batasuna. For a very critical analysis see Paredes Castañón (n 51) 1. The STS of 22 May 2009 absolves some alleged members. Nonetheless, it still considers KASEKIN as a terrorist organisation and maintains the sentence on the majority of the accused, despite with slightly inferior penalties (six to eleven years of imprisonment). Confirmed by the STS of 13 October 2009, except concerning one of the sentenced who was ultimately acquitted. The AJCI [Auto del Juzgado Central de Instrucción] of 26 August 2002 establishes that HB is constituted to ‘materialise politically the illegal independence plans and projects ETA cannot tackle as a clandestine organisation.’ In the AJCI of 26 August 2002, ETA is accused of funding HB until 1992, but not vice versa. See also: AJCI of 16 October 2002; STS of 27 March 2003; AJCI of 25 January 2005; and AJCI of 7 October 2007 (on all these resolutions in the framework of the judicial investigation 35/2002, see A Fernández Hernández, Ley de partidos políticos y derecho penal (Tirant lo Blanch, Valencia, 2008) 210. AJCI of 25 January 2005. 47

Mariona Llobet-Anglí and Aniceto Masferrer

In short, no proper distinction is being made, between legal and illegal activities performed by the groups revolving around ETA or the ideology of Basque independence. On the contrary, all help, either individual or collective, is treated as terrorism. Certainly, ‘all organisations constituting the MLNV can be categorised as terrorist organisations for being regarded as “groups of ETA.”’63

‘Criminal law of the enemy’: A contradiction in its own terms? In the paragraphs above, it has been emphasised that both Spanish legislation and case-law have encroached, and continue to encroach, on liberal principles and safeguards of the criminal law. The reason – rather the excuse – behind which rulers and judges entrench or take refuge themselves, is the efficacy (and fairness) of the fight against terrorism. Yet is it possible to defend as legitimate even a legislative provision that is effective or necessary to fight against terrorism, if it impinges on those principles and safeguards? As has been shown, at present, there are two provisions that, because of their usefulness, Spain is using in the fight against terrorism. They are debated from the perspective of compliance with criminal law safeguards (garantismo penal). These provisions are: an enhanced penalty as a means to render the subject harmless (inocuización) and extended preventive detention without charge. In relation to the latter, there is no doubt that the measures with more possibilities of combating terrorism efficaciously are linked with procedural investigation,64 so the procedural ambit is where criminal efficiency is more rigorously expressed.65 This explains why, nowadays, procedural law is the sector in which the norm of the ‘criminal law of the enemy’ abounds the most.66

Enhanced penalty as a means to render the subject harmless Nowadays, the reliability of the re-socialisation and preventive capacities of criminal law are undergoing a crisis. On one side, there is disillusion, whether well-grounded or not, concerning the possibilities of a re-socialising intervention by the State on the criminal (the crisis of the special positive prevention).67 On the other side, there is little hope in the intimidating capacity of criminal law (crisis of the general negative prevention), and in its capacity to reaffirm among citizens the values underlying the legal system (crisis of the general positive prevention).68 Therefore, the enhanced penalty is estimated to be the measure to render

63 64

65 66

67 68 48

Fernández Hernández (n 58) 27. A Melchionda, ‘La legislación italiana en materia de terrorismo’ in JL Gómez Colomer and JL González Cussac (eds), Terrorismo y proceso penal acusatorio (Tirant lo Blanch, Valencia, 2006) 213. By contrast, the role played by material criminal legislation is less important. AD Aponte, Guerra y derecho penal de enemigo (Universidad de los Andes, Bogota, 1999) 13. In this sense see: Damián Moreno (n 25) 465; C Pérez del Valle, ‘Derecho Penal del enemigo¿ Escarnio o prevención de peligros’ in M Cancio Meliá and C Gómez-Jara Díez (eds), Derecho Penal del enemigo. El discurso penal de la exclusión II (Edisofer, Madrid, 2006) 550; W Perron,‘La legislación antiterrorista en el Derecho Penal material alemán’ in JL Gómez Colomer and JL González Cussac (eds), Terrorismo y proceso penal acusatorio (Tirant lo Blanch,Valencia, 2006) 249; and Sánchez García de Paz ‘Alternativas al Derecho Penal del enemigo’ (n 32) 869. JM Silva Sánchez, La expansión del Derecho Penal (2nd edn, Civitas, Navarra, 2001) 145. See Pastor Muñoz (n 55) 25.

Counter-terrorism, emergency, and national laws

criminals innocuous;69 having been spurned as ‘incorrigibles,’70 they must be kept imprisoned for as long as possible. Such is a phenomenon that has been termed by Silva Sánchez ‘the return to innocuousness’ (retorno de la inocuización).71 It involves the cognitive dimension of the penalty, that is, the assurance or prevention of future acts through the neutralisation of the criminal, monopolising the leading role. As a result, the criminal law of the penalty and the criminal law of the security measures draw closer together.72 In the context of terrorism, this trend gains special intensity, owing to the fact that, according to criminal law doctrine, terrorists are criminals as a matter of conviction,73 hence they are incorrigibles whom it is impossible to intimidate or re-socialise.74 To that end, the severity of the penalties foreseen for those offences are directed, essentially, to render their authors innocuous75 and to hinder effectively the commission of further felonies by means of security measures. Without doubt, terrorism crimes are more serious, which makes legitimate and proportional their more severe punishment.76 Yet, the ‘criminal law of the enemy’ encompasses the penalty as a further means of rendering dangerous subjects innocuous,77 in other words, by means of the part of the punishment based on a future forecast of riskiness of the author of an act. It is probably a truism that dangerousness is not a ground for penalties, but for security measures. Therefore, a penalty whose duration exceeds the gravity of the criminal act on the basis of the criminal diagnosis of a subject cannot be legitimate. True, imprisonment fulfils a custodial, assurance function, but it must be proportional to the act performed, without further control, at least, under the appearance of a penalty.78 Finally, from the liberal criminal law perspective, the portion of custodial sanctions based on a mere a priori prognosis of future dangerousness is wholly illegitimate, insofar as the increased gravity of punishment applicable to the convicted goes beyond to the culpability principle.79

69

70 71

72 73 74

75 76 77 78 79

Nonetheless, on the other side of the spectrum, there are other proposals, either abolitionists or reductionists of the criminal system (See E Demetrio Crespo, ‘Del “Derecho penal liberal” al “Derecho penal del enemigo”’ (2004) 14 Revista de Derecho Penal y Criminología 88 and 92. F Von Listz, La idea de fin en Derecho Penal (Edeval, Valparaiso, 1994) 115. See Silva Sánchez La expansión del Derecho Penal (n 67) 142; JM Silva Sánchez, ‘El retorno de la inocuización’ in A Nieto Martín (ed.), Homenaje al Dr. Marino Barbero Santos. In memoriam I (ediciones UCM-US, Cuenca, 2001) 699. Pastor Muñoz (n 55) 25. On this category, see J Baucells i Lladós, La delincuencia por convicción (Tirant lo Blanch, Valencia, 2000). A Dershowitz, Why Terrorism Works: Understanding the Threat, Responding to the Challenge (Yale University Press, New Haven, 2002); we used the Spanish version entitled Por qué aumenta el terrorismo? (Encuentro, Madrid, 2004) 35–36; González Cussac (n 18) 79; A Lascuraín Sánchez,‘Qué les corten la cabeza?’ (2004) 145 Claves de razón práctica, 37; and G Quintero Olivares, Adonde va el Derecho Penal (Civitas, Navarra, 2004) 99–100. Cf Pastor Muñoz (n 55) 29. See Llobet-Anglí (n 17) 237. See also Sánchez García de Paz ‘Alternativas al Derecho Penal del enemigo’ (n 32) 865. Cf Jakobs (n 25) 44. It is utterly different from the precaution of after-crime security measures in cases of terrorists prone to recidivism. Cf JM Silva Sánchez ‘El retorno de la inocuización’ (n 71) 146, fn 349. 49

Mariona Llobet-Anglí and Aniceto Masferrer

Prolonged detention without charge80 As indicated, the relaxation of procedural safeguards, namely prolonged detention without filing charges for a term longer than foreseen for common criminality, is one of the distinctive characteristics of counter-terrorist legislation. Its raison-d’être is that such measures seem efficacious from two different views: the police can investigate presumed crimes for longer, while preventive detention can serve as a pre-criminal security measure, especially if indefinite, since anyone suspected of posing a risk to national security is neutralised. Irrefutably, the configuration of terrorism as an organised criminal modality triggers the complexity of the investigation of its activities, chiefly due to its hierarchical structure and task division. In that event, the elucidation of the crimes committed in its core may require the existence of measures adapted to that reality. In concrete terms, more time to detect the commission of the crime and determine the accountability of its perpetrators may be needed.81 For this reason, counter-terrorist legislation, which allows five days of custodial detention, instead of three, perfectly fits in the framework of a democratic state of law.82 In the end, exceptions must also respect human rights to be legitimate, but there is no single procedural safeguard model.83 Rather, the problem lies in those legal systems that allow the detention of a subject to be extended for too long or, even, indefinitely, without need for judicial review or criminal charges. Such legal conditions violate the right to liberty and make more likely the severe violation of human rights on the part of state security agencies.84 Nowadays, on the European stage, it is in the UK where this measure has been most sharply intensified. At one stage, executive detention even became indefinite.85 Even today, police detention without charge extends up to 14 days.86 Without question, in these scenarios, fundamental rights such as the presumption of innocence, freedom and human dignity are not respected, which means that those measures are illegitimate in the light of a criminal law based on legal and constitutional safeguards (or based on the rule of law). In this point there is now a sharp difference between the Spanish and British criminal law models after the 11 September attacks.

80 81

82

83 84

85

86

50

See also Chapters 11 (Vladeck and Walker) and 15 (Kremnizer and Saba) in this book. See HJ Albrecht, ‘Investigaciones sobre criminalidad económica en Europa’ in Modernas tendencias en la Ciencia del Derecho penal y en la Criminología (Universidad Nacional de Educación a Distancia, Madrid, 2001) 263. Of the same opinion, Catalina Benavente (n 31) 178. Cf E Gimbernat Ordeig, Ensayos penales (Tecnos, Madrid, 1999) 46–48; and G Portilla Contreras, ‘El Derecho penal y procesal del “enemigo”’ in J López Barja de Quiroga and JM Zugaldía Espinar (eds), Dogmática y Ley Penal. Libro Homenaje a Enrique Bacigalupo I (Marcial Pons, Madrid, 2004) 708, fn 67. Sánchez García de Paz ‘Alternativas al Derecho Penal del enemigo’ (n 32) 864 and ‘Problemas de legitimidad’ (n 32) 479. F Reinares, Terrorismo y Antiterrorismo (Paidós, Barcelona, 1998) 152, adduces the example of the death of an ETA member in Spain, in February 1981, because of the ill-treatment received during nine years he remained under police custody, precisely when Spanish counter-terrorist legislation allowed the extension of the term to 10 days. See also Gimbernat Ordeig (n 82) 46–47. See Anti-terrorism, Crime and Security Act 2001, Part IV, repealed by the Prevention of Terrorism Act 2005, ss 16(2)-(4) following the House of Lords declaration of incompatibility in A v Secretary of State for the Home Department [2004] UKHL 56. Protection of Freedoms Act 2012, s 57, meaning that the UK has the longest period of detention without charge in the EU.

Counter-terrorism, emergency, and national laws

Conclusion The fight against criminal behaviour must be restrained within the limits of a democratic State of law,87 evident though the enmity between a subject and that legal order might be.88 Democratic ethical commitments are universal and must be applied both to citizens and to enemies.89 Consequently, fundamental rights (such as freedom or dignity90) and constitutional safeguards and principles are not disposable. Even if someone acts as an outlaw, the State is not allowed to accept them as having no legal personality or rights,91 without impairing the bases upon which it is founded.92 Ultimately, the risks posed by dangerous subjects must be divided into (or shared by) the whole democratic society, that is, we all must assume them,93 as long as we desire to attach that denomination to ourselves. Undoubtedly, Government might become more efficacious in forestalling terrorism and might provide greater safety for citizens if any dangerous subject were rendered ‘innocuous’ according to some of the methods outlined in this chapter.94 Yet, that premise supplants our liberal democratic State model for another political kind of system,95 bearing in mind that a democracy must prevail without betraying the values it represents.96 To answer the question of whether a democratic State should use measures in relation to the ‘criminal law of the enemy’, either within ordinary (Spain) or extraordinary (the UK) law, the answer is always negative. Its utilisation would entail the impossibility to claim the aforesaid character to define their model of government.97

87 88 89 90 91 92

93

94

95 96 97

See S Mir Puig, El Derecho penal en el Estado social y democrático de derecho (Arial, Barcelona, 1994) 115. In the same line, F Muñoz Conde, ‘De nuevo sobre “el derecho penal del enemigo”’ (2005) 16 Revista penal 35. See M Ignatieff, El mal menor (Taurus, Madrid, 2005) 23. The English language version is The Lesser Evil (Princeton University Press, New Jersey 2004). JL González Cussac,‘El renacimiento del pensamiento totalitario en el seno del estado de Derecho’ (2007) 19 Revista Penal 58. See Gracia Martín (n 33) 38; and González Cussac (n 90) 59. E Press,‘In Torture We Trust?’ in KB Darmer, RM Baird and SE Rosenbaum (eds), Civil Liberties v. National Security in a Post-9/11 World (Prometheus Books, Amherst, 2004) 2.225; and S Mir Puig, ‘Principio de proporcionalidad y fines del Derecho penal’ in JI Echano Basaldúa (ed.), Estudios jurídicos en Memoria de José María Lidón (Universidad de Deusto, Bilbao, 2002) 349. Silva Sánchez,‘El retorno de la inocuización’ (n 71) 710, text and fn 46. Now, as highlighted by JL Díez Ripollés, the current ‘ideology of the distribution of risks between the individual and the society’ is translated into the fact that ‘society refuses to be burdened with the costs derived from the risks of criminal recidivism,’ for which the former criminal is responsible (‘De la sociedad del riesgo a la seguridad ciudadana’) in M Cancio Meliá and C Gómez-Jara Díez (eds), Derecho Penal del enemigo. El discurso penal de la exclusión I (Edisofer, Madrid, 2006) 575. There are other authors who have highlighted the counter-producing effects of the ‘overreactions’; see U Beck, Sobre el terrorismo y la guerra (Paidós, Barcelona, 2003) 10–11; Reinares Terrorismo y Antiterrorismo (n 84) 166; Cancio Meliá ‘Algunas consideraciones preliminares sobre los delitos de terrorismo’ (n 11) 164, text and fn 11; and D Cole and J Lobel, Less Safe, Less Free (New Press, New York, 2007) 129. See further R Rorty, ‘Fundamentalismo: enemigo a la vista’ (El País, Madrid, 29 March 2004) 11. See Ignatieff (n 89) 22. See also González Cussac (n 90) 60; and M Aguirre, ‘Hay dudas sobre la tortura?’ (La Vanguardia, Barcelona, 22 April 2005) 29. 51

4 What’s in a word? War, law and counter-terrorism Laurie R Blank

Introduction After 9/11, counter-terrorism became a global phenomenon and effort. States had undertaken measures to combat terrorism for many years, but, in the aftermath of the attacks on the World Trade Center and the Pentagon, counter-terrorism became an international buzzword and mission, one to which all countries were summoned. The UN Security Council passed numerous resolutions calling on states to enact, implement and enforce laws that would prevent terrorist attacks, restrict terrorist financing and strengthen international cooperation on counter-terrorist efforts. Counter-terrorism cooperation became a focus for conversation and shared purpose among countries where little might otherwise have existed. Counter-terrorism also served as the impetus for legislative and executive action. Countries around the world passed laws to inhibit terrorist financing, enhance intelligence collection and surveillance, bolster criminal codes for the prosecution of terrorists and restructure government departments to maximise the use of resources.1 At the same time, some countries, notably the US, pursued counter-terrorism through military means simultaneously with domestic and cooperative criminal measures. The US embarked on its ‘war on terror’ in late September 2001 and has remained on that ‘war footing’ ever since, with significant consequences for the interplay of law, war and counter-terrorism. Israel also views its struggle with terrorist groups, namely Hamas and Hezbollah, as an armed conflict. For both countries, therefore, the law of armed conflict (LOAC) provides the applicable legal paradigm for many counter-terrorism measures. In contrast, most other countries do not view responses to terrorism as armed conflict and instead approach counter-terrorism through a law-enforcement paradigm. These two differing approaches to counter-terrorism produce divergent and often directly contrasting frameworks for lawful counter-terrorism efforts and operations, producing a steady debate about the legality and validity of specific counterterrorism mechanisms and approaches.

1

52

For example, Australia enacted forty-eight anti-terror statutes in the six years following 9/11: G Williams, ‘A Decade of Australian Anti-Terror Laws’ (2011) 35 Melbourne University Law Review 1136, 1145.

What’s in a word?

This chapter looks at how a war conception impacts and interacts with counter-terrorism in order to explore the consequences for law of the framing of counter-terrorism as war or, vice versa, war as counter-terrorism. The first section examines three main areas where a war framework – or even the rhetoric of war – has significant consequences: detention, the use of force and prosecutions. The second section explores an equally fruitful area for examining the impact of war determinations on counter-terrorism activities: the re-characterisation of internal conflicts as counter-terrorism operations, such as the Russians in Chechnya or the Sri Lankan government against the Tamil Tigers, which has significant consequences for the application of the LOAC and therefore for the protection of persons and property and international law’s role as a bulwark against unfettered and overreaching governmental power.

War or not war? The consequences for counter-terrorism Soon after the 9/11 attacks, the Bush Administration characterised US efforts to defeat Al Qa’ida and associated terrorist groups as a ‘war on terror.’2 Unlike past rhetorical uses of ‘war’ to denote a major governmental or societal effort to combat an evil that threatens society, national security or another communal good (the ‘war on poverty’ or the ‘war on drugs’), in this case the terminology of ‘war’ went far beyond rhetoric, resource re-allocation and centralising authority. The US responded to the 9/11 attacks with Operation Enduring Freedom in Afghanistan, a military campaign designed to destroy Al Qa’ida and Taliban operations in Afghanistan, capture Al Qa’ida leaders and eliminate the safe haven for Al Qa’ida and other terrorists.3 Since then, the US has engaged in major military operations in Afghanistan and Iraq, carried out an extensive drone campaign in the tribal areas of Pakistan and Yemen and launched strikes and capture operations in Somalia, Libya and Syria. The US continues to maintain that it is engaged in an armed conflict with Al Qa’ida,4 which has been generally accepted, notwithstanding continued resistance to the notion of an armed conflict between a state and a transnational terrorist group in certain quarters. At the same, the ‘war on terror’ includes many activities that remain outside the concept of armed conflict, such as extensive criminal, financial and other efforts to frustrate, capture and prosecute terrorists beyond the use of military force. Israel also characterises some of its counter-terrorism operations as armed conflict, viewing activities such as targeted killing, detention, house demolitions and deportation through the lens of armed conflict and LOAC.5 Furthermore, Israeli operations and measures in the West Bank occur within the context of occupation, adding the additional layer of the law of belligerent occupation, a component of LOAC.

2

3

4

5

President George W Bush, ‘Address to Joint Session of Congress and the American People’ (20 September 2011). Available at: http://georgewbush-whitehouse.archives.gov/news/releases/ 2001/09/20010920-8.html accessed 6 October 2014. President George W Bush, ‘Address to the Nation Announcing Strikes Against Al Qaida [sic] Training Camps and Taliban Military Installations in Afghanistan’ (October 7, 2011). Available at: www.presidency.ucsb.edu/ws/?pid=65088. All three branches of the US government have demonstrated that they view the situation as an armed conflict. See Authorization to Use Military Force, Pub L No 107-40, 115 Stat 224(a) (2001); Hamdan v Rumsfeld 548 US 557 (2006); Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed Reg 57833 (November 13, 2001); Department of Defense Military Commission Order No. 1, Procedures for Trials by Military Commissions of Certain NonUnited States Citizens in the War Against Terrorism (21 March 2002). See, for example, Public Committee Against Torture in Israel v Gov’t of Israel, HCJ 769/02 [2005]. 53

Laurie R Blank

The US and Israeli experiences offer useful opportunities to explore how the armed conflict paradigm affects the implementation of various counter-terrorism measures and how such implementation compares and contrasts with similar counter-terrorism measures in countries that do not view terrorism and counter-terrorism as armed conflict, such as France, Germany, India, Spain or the UK. For example, like many other countries, the primary goal of Germany’s counter-terrorism strategy is ‘to destroy terrorist structures through exerting strong pressure on terrorists and terrorist groups by way of criminal investigation.’6 A brief description of LOAC is useful here to set the stage for the following discussion. LOAC governs conduct during wartime and provides the overarching parameters for the conduct of hostilities and the protection of persons and objects. It authorises the use of lethal force as first resort against enemy persons and objects within the parameters of the armed conflict.7 It also provides for the detention of enemy fighters and civilians posing imperative security risks.8 Along with these authorities, however, come obligations – such as the obligation to use force in accordance with the principles of distinction and proportionality, the obligation to protect civilians and those no longer fighting from the ravages of war to the extent possible and the obligation to treat all persons humanely. LOAC applies in all situations of international and non-international armed conflict, as set forth in the Geneva Conventions. Given this chapter’s focus on the effect of different legal paradigms and on the use of rhetoric or terminology of war, it is important to note that the drafters of the Geneva Conventions specifically declined to use the word ‘war’ and instead used ‘armed conflict’ because of the ease with which countries in the past had used the absence of a declaration of war as a justification for not applying LOAC.9 As a technical legal matter, therefore, characterising counter-terrorism as a ‘war on terror’ should not necessarily have legal consequences in the absence of objective facts demonstrating the existence of an armed conflict; as this discussion demonstrates, however, it can and does.

6

7

8

9

54

H Albrecht, ‘Counterterrorism Policies in Germany’ (2006). Available at: www.mpicc.de/ shared/data/pdf/fa_38_albrecht10_06.pdf accessed 14 February 2015. France takes a similar approach: ‘the fight against terrorism is usually considered in France as a matter of police and justice; hence a certain reluctance to talk about “War on Terror”’ (D Bigo and C Camus,‘Overview of the French Anti-terrorism Strategy’, Working Document, First Inventory of Policy on Counterterrorism: Germany, France, Italy, Spain, the United Kingdom and the United States – ‘Research in Progress’ (2006), 30, https://english.wodc.nl/onderzoeksdatabase/stand-vanzaken-en-effecten-contraterrorismebeleid.aspx). The UK similarly views detention and prosecution as the primary means of countering terrorism (Home Office, CONTEST: the United Kingdom’s Strategy for Countering Terrorism (Cm 8123, London, 2011)). GS Corn, ‘Back to the Future: De Facto Hostilities, Transnational Terrorism, and the Purpose of the Law of Armed Conflict’ [2009] 30 University of Pennsylvania Journal of International Law 1345, 1352–53. Geneva Convention Relative to the Treatment of Prisoners of War, art. 4, August 12, 1949, 6 UST 3316, 75 UNTS 135 (describing various prisoner of war categories) [hereinafter Third Geneva Convention]; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, arts 42, 78,Aug 12, 1949, 6 UST 3516, 75 UNTS 287 (permitting internment) [hereinafter Fourth Geneva Convention]. For example, during the Second War World, the Japanese claimed that their operations in China and Manchuria were merely ‘police operations’ that did not trigger LOAC, an argument rejected by the International Military Tribunal. See International Military Tribunal for the Far East, Judgment of 4 November 1948, at 490. See further O Uhler and H Coursier (eds) Geneva Convention: Relative to the Protection of Civilian Persons in Time of War: Commentary (ICRC, Geneva 1958) 17–25 (hereafter ‘Commentary’).

What’s in a word?

The characterisation of counter-terrorism as armed conflict can have consequences in a wide variety of legal and policy arenas, both domestic and international. Three in particular stand out: detention, use of force and prosecutions. This section examines each of these categories of state action in order to examine how the categorisation of war or conflict impacts their implementation, the protection of individual rights, the balance between individual rights and national security and the development of the law going forward.

Detention Detention is an essential tool for both law enforcement and military operations. Criminal justice authorities arrest and detain individuals in the process of criminal prosecution. Militaries and other parties to armed conflict detain enemy fighters and others posing a security threat during the course of hostilities. In the past thirteen years, the US has detained tens of thousands of individuals in Afghanistan, Iraq, Guantánamo Bay and elsewhere in the course of military operations in Afghanistan and Iraq and counter-terrorism efforts against Al Qa’ida and other terrorist groups. The US considers this detention to be incidental to the relevant armed conflicts in Iraq, Afghanistan and with Al Qa’ida and associated forces. Israel and India both use administrative detention, which is detention without charge or trial and authorised by administrative or executive order rather than judicial order.10 Likewise, the UK has allowed for terrorism suspects to be placed under terrorism prevention and investigation measures,11 and Australian’s Criminal Code creates a ‘preventive detention order’ allowing detention for up to fourteen days where ‘reasonably necessary to prevent an “imminent” terrorist act from occurring or to preserve evidence relating to a recent terrorist act.’12 The fundamental differences between detention in the criminal law system and in armed conflict are essential to understanding the consequences of a war or armed conflict paradigm for counter-terrorism. In an international armed conflict or occupation, LOAC provides for the detention of combatants and of civilians who participate in hostilities or pose a threat to the security of the occupying power.13 Prisoners of war (POWs) may be detained for the duration of hostilities but must be repatriated at the close of hostilities.14 Preventing a return to hostilities is the underlying purpose of detention, as evidenced by the immunity POWs enjoy from prosecution for lawful wartime acts, reinforcing the fact that they are not held as a form of punishment for engaging in combat.15 Historical and modern incarnations of law of war detention rest on this notion, and the Nuremberg Tribunal similarly upheld this purpose for POW detention.16 10

11 12 13 14 15 16

Israel has held anywhere from forty-four to 1,700 Palestinians in administrative detention under one of three laws: Order Regarding Security Provisions [Consolidated Version] (Judea and Samaria) (No. 1651), 5770-2009; Emergency Powers (Detentions) Law; and Internment of Unlawful Combatants Law. India’s administrative detention was originally provided for under the Terrorist and Disruptive Activities (Prevention) Act 1987 and the Prevention of Terrorism Act, 2002 and now is governed by the Unlawful Activities (Prevention) Amendment Act 2008. See Chapter 15 (Kremnizer and Saba) in this book. Terrorism Prevention and Investigation Measures Act 2011. See Chapter 11 (Vladeck and Walker) in this book. Williams (n 1) 1150. Fourth Geneva Convention, art 5. Third Geneva Convention, art 118. United States v Lindh 212 F Supp 2d 541, 553 (ED Va 2002); In re Territo 156 2d 142, 145 (9th Cir 1946). Judgment, 1 Trial of the Major War Criminals Before the International Military Tribunal 171 (1947), reprinted in (1947) 41 American Journal of International Law 172, 229; see also T Taylor, Nuremberg and Vietnam: An American Tragedy (Quadrangle Books, Chicago 1970) 19. 55

Laurie R Blank

Other persons can also be detained during international armed conflict ‘if the security of the Detaining Power makes it absolutely necessary,’ or for ‘imperative reasons of security’ during belligerent occupation.17 For example, the UN Security Council authorised the MultiNational Force-Iraq to ‘take all necessary measures to contribute to the maintenance of security and stability in Iraq,’18 including ‘internment where… necessary for imperative reasons of security.’19 In general, the detaining power’s primary recourse in such circumstances is to assigned residence or internment, only if security reasons make such measures absolutely necessary, and detention can last only for such time as the reasons underlying the initial detention persist. In particular, an individual cannot be detained solely on the grounds that he or she is an enemy national; rather, any detention must be based on an individualised determination of the threat to security the individual poses, such as subversive activity or assistance to the enemy party.20 In non-international armed conflict, LOAC contemplates detention of one or more forms, with Common Article 3 referencing individuals who are hors de combat because of detention, among other reasons. Nonetheless, the law applicable to non-international armed conflict provides few rules governing detention, particularly administrative detention such as that contemplated in the Fourth Geneva Convention and Additional Protocol I. ‘[D]omestic laws, which generally include human rights provisions and due process requirements,’21 govern administrative detention in non-international armed conflict. Detention outside of armed conflict occurs predominantly in the context of the domestic criminal law system. Domestic law and international human rights law therefore provide the framework for detention. Article 9 of the International Covenant on Civil and Political Rights (ICCPR) prohibits arbitrary detention and sets forth the basic parameters for detention, including the requirement that the grounds and procedure for detention must be established in law. Any person who is arrested must be informed of the charges, be brought before a judge promptly and have the opportunity to challenge the detention before a court of law.22 As this description of the various detention regimes demonstrates, detention in armed conflict and detention in criminal law differ in one essential way: whether persons detained can be held without charge for the duration of the conflict or can only be detained as part of ongoing criminal proceedings. Administrative detention forms a middle ground, because it is detention without charge but requires procedural safeguards and judicial review not mandated in law of war detention for enemy personnel and fighters. Although the nature of each type of detention, and the applicable procedures are critically important for the protection of individual rights and the maintenance of the rule of law, for the purposes of this chapter, the main point is the consequence for detention of countries using, or not using, an armed conflict paradigm for counter-terrorism. If a country’s struggle against terrorist groups meets the threshold for an armed conflict but it does not recognise the situation as an armed conflict and therefore uses

17 18 19

20

21 22

56

Fourth Geneva Convention, arts 5, 42, 78. SC Res 1546, art 10 (S/RES/1546, 8 June 2004). SC Res 1546, Annex 11. See R (al-Jedda) v Secretary of State for Defence [2007] UKHL 58; Al-Jedda v Secretary of State for Defence [2010] EWCA Civ 758; Al-Jedda v United Kingdom, App No 27021/08, 7 July 2011 (2011) 53 EHRR 23. Ministry of Defence, The Joint Service Manual of the Law of Armed Conflict (JSP 383, London, 2004) para 9.31; AS Deeks, ‘Security Detention: The International Legal Framework: Administrative Detention in Armed Conflict’, [2009] 40 Case Western Reserve Journal of International Law 403, 407. Deeks (n 20) 413. See International Covenant on Civil and Political Rights, arts 9(1)–(4) (UNGA Res. 2200A (XXI), UN GAOR, Supp No 16 (UNGA Res 6316, 16 December 1966).

What’s in a word?

the ordinary domestic criminal law paradigm for arrest, prosecution and detention of personnel in the course of counter-terrorism operations, such a decision would not generally be seen as detrimental to individual rights and protections.23 In contrast, the use of armed conflict detention in a situation that does not meet the threshold for an armed conflict presents significant challenges to the rule of law. The US use of the term ‘law of war detention’, and the effect of that designation, offers a useful example of these challenges. In March 2011, the Obama Administration issued a new Executive Order establishing indefinite detention ‘under the law of war’ for a designated number of detainees at Guantánamo Bay.24 Many of the detainees at Guantánamo are held because of their suspected involvement in terrorist acts or in providing support for terrorist acts. And yet because the US frames its engagement with Al Qa’ida as an armed conflict, suspected perpetrators of terrorist crimes – crimes that might be otherwise prosecuted in federal court25 – are held in a wartime detention paradigm. This combination raises substantial questions about the risk such a framework poses to individual rights, including the use of detention without charge as a punitive measure, access to judicial review and the conditions of detention.26 Interestingly, the Israeli model operates as a mix of armed conflict and administrative detention, most likely the manifestation of the occupation and the way in which the law of occupation incorporates human rights law as an integral part of the treatment of persons in the hands of the occupying power.27 In this way, the Incarceration of Unlawful Combatants Law of 2002 provides for administrative detention for all persons detained who do not meet the standard for POWs.28 One of the central problems with a war framework for counter-terrorism, given the nature of counter-terrorism and conflicts with terrorist groups, is identifying where the conflict is taking place and when it ends, because to hold persons in detention under the law of war, they must be captured and detained in the context of an armed conflict. Difficulties in defining the scope and duration of the conflict29 create a risk of detaining persons who do not fall within 23 24 25

26

27

28

29

But see Chapter 11 (Vladeck and Walker) in this book. Exec. Order No 13567, 76 Fed Reg 13, 277 (7 March 2011). See press release, US Department of Justice, ‘Departments of Justice and Defense Announce Forum Decisions for Ten Guantánamo Detainees,’ November 13, 2009. Available at: www.justice. gov/opa/pr/departments-justice-and-defense-announce-forum-decisions-ten-guantanamobay-detainees accessed 15 March 2015. See also National Defense Authorization Act of 2012, Sections 1026 and 1027, prohibiting the use of federal funds to transfer Guantanamo detainees to domestic facilities. See L Blank,‘A Square Peg in a Round Hole: Stretching Law of War Detention Too Far’ [2011] 63 Rutgers Law Review 1169. The US has added a variety of procedural protections and requirements that add significantly to those found in LOAC as the length of detention has extended at Guantánamo Bay. On the role of human rights law in the law of occupation, see D Campanelli,‘The Law of Military Occupation Put to the Test of Human Rights Law’ [2008] 90 International Review of the Red Cross 653. See also Chapter 15 (Kremnitzer and Saba) in this book. In A and B v Israel CrA 6659/06, Judgment of 11 June 2008, ILDC 1069 (IL 2008), the Israeli Supreme Court held that the category of unlawful combatants fit within the broader category of civilians in LOAC and therefore did not create a new category of persons that conflicted with the international law framework. As a result, ‘the Court held that the [Incarceration of Unlawful Combatants Law] introduces an administrative detention scheme [that] is consistent with articles 27, 41–43 and 78 of the Fourth Geneva Convention’. Y Shany, ‘The Israeli Unlawful Combatants Law: Old Wine in a New Bottle?’ Research Series of the Max Planck Institute for Foreign and International Criminal Law (2012) 10. See L Blank, ‘Defining the Battlefield in Contemporary Conflict and Counterterrorism: Understanding the Parameters of the Zone of Combat’ [2010] 39 Georgia Journal of International and Comparative Law 1. 57

Laurie R Blank

the parameters of armed conflict. An equally challenging and potentially graver problem lies in the wholly unknown timeframe of the conflict. Terrorism rarely ends; rather, it is managed and minimised, instead of defeated.30 When it is hard to identify the end of hostilities against terrorists, or even what the end of hostilities might look like,‘law of war’ detention can actually become generational or lifetime detention – a paradigm that LOAC does not contemplate and one that raises significant moral and legal questions. These critiques of how war terminology can impact detention in counter-terrorism operations do not mean that non-armed conflict detention regimes are inherently fair or protective of individual rights. Many countries use terrorism as a trump card to limit the rights of suspected terrorists, whether in the length of pre-trial detention,31 the ability to use incommunicado detention32 or the presumptions regarding guilt and innocence.33 The rhetoric of terrorism is also an effective tool for governments seeking additional flexibility and authority in addressing real and perceived threats to national security.

Use of force and targeting LOAC sets forth comprehensive rules for the use of force in armed conflict, based on the principles of distinction, proportionality and precautions. The principle of distinction, one of the ‘cardinal principles’ of LOAC,34 requires that parties to a conflict distinguish between those who are fighting and those who are not and to direct attacks solely at the former.35 Similarly, parties must distinguish between civilian objects and military objects and target only the latter. As a prerequisite to the use of force in armed conflict, distinction thus requires identification of lawful targets: either a combatant,36 member of an organised armed group,37 a civilian directly participating in hostilities38 or a military objective.39 30

31 32

33

34 35

36 37

38 39

58

Terrorist groups may be defeated, although military force is rarely the reason for the end of a terrorist group. S Jones and M Libicki, How Terrorist Groups End: Lessons for Counter al Qa’ida (RAND, Santa Monica 2008). Terrorism Act 2000, sch 8. Caballero v Spain, App No 74016/12, European Court of Human Rights, 7 October 2014; Rojo v Spain, App No 3344/13, European Court of Human Rights, 7 October 2014. See also Human Rights Watch ‘Spain: Setting an Example? Counterterrorism Measures in Spain’ (2005) 17(1) Human Rights Watch Reports 1–2. India’s Prevention of Terrorism Activities Act 2002 established specialised courts with a presumption of guilt for those accused of terrorist activities: South Asia Human Rights Documentation Centre, ‘Prevention of Terrorism Ordinance 2001: Government Decides to Play Judge and Jury’ (New Dehli, 2001). Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 ICJ 226, para 78 (July 8) (Higgins, J, dissenting on unrelated grounds). Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), art 48, June 8, 1977, 1125 UNTS 3 [hereinafter AP I]. Article 4 of the Third Geneva Convention sets forth the requirements for combatant status. Members of an organised armed group fighting in either an international or non-international armed conflict are legitimate targets of attack at all times. J Gurulé and G Corn, Principles of CounterTerrorism Law (West Academic Publishing, St Paul, 2011) 70–76; International Committee of the Red Cross, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (ICRC, Geneva 2008). AP I, art 51(3). Art 52(2) of AP I defines military objectives as objects that by their nature, location, purpose or use make a direct contribution to military action, and whose destruction, capture or neutralisation offers a definite military advantage at the time.

What’s in a word?

The second major principle, the principle of proportionality, requires that parties refrain from attacks in which the ‘expected… incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, … would be excessive in relation to the concrete and direct military advantage anticipated.’40 This principle balances military necessity and humanity, and reaffirms two major LOAC concepts. First, the means and methods of attacking the enemy are not unlimited – the only legitimate object of war is to weaken the enemy’s military forces. Second, the legal proscription on targeting civilians does not extend to a complete prohibition on all civilian deaths, but rather, the law has always tolerated ‘[t]he incidence of some civilian casualties… as a consequence of military action.’41 Last, LOAC mandates that all parties take certain precautionary measures to protect civilians. Precautions are, understandably, a critical component of the law’s efforts to protect civilians and are of particular importance in densely populated areas or areas where civilians are at risk from the consequences of military operations. For this reason, even if a target is legitimate under the laws of war, failure to take precautions can make an attack on that target unlawful.42 With regard to individuals, LOAC therefore initially premises the use of force during armed conflict on their status: members of the armed forces of the enemy (whether a state or organised armed group) can be attacked at any time, regardless of whether they are engaged in a hostile act at the time. In comparison, the use of force outside of armed conflict, when international human rights law and the principles governing the use of force in law enforcement govern, presents a drastically different paradigm. Article 6 of the ICCPR protects the right to life and prohibits arbitrary deprivation of life.43 In a slightly different formulation, the European Convention on the Protection of Human Rights and Fundamental Freedoms establishes the right to life and states that any ‘[d]eprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence…’44 Here the use of lethal force is – appropriately – tightly prescribed and extraordinarily restricted. The UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials comport fully with international treaty law, reaffirming that force can only be used in limited and highly circumscribed circumstances: self-defence or defence of others; to prevent a crime involving grave threat to life; or to arrest or prevent the escape of a person posing danger to life.45 In addition, international human rights law requires that the use of force be both necessary and proportionate.46 These principles of necessity and proportionality have substantially different meanings in international human rights law than in LOAC. In the international human rights law context, the principle of necessity refers to the types of options and alternatives the state has available to it to address threats and hostile action. ‘[I]f the measures taken will result in a possible violation of a right, it must be shown that these measures were necessary in order

40 41

42 43 44 45

46

AP I, art 51(5)(b). J Gardham, ‘Necessity and Proportionality in Jus Ad Bellum and Jus In Bello’, in L Boisson de Chazournes and Philippe Sands (eds) International Law, the International Court of Justice and Nuclear Weapons (Cambridge University Press, Cambridge, 1999). AP I, art 57(2). ICCPR art 6. Convention for the Protection of Human Rights and Fundamental Freedoms art 2(2). Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, Eighth United Nations Congress on the Prevention of Crime and Treatment of Offenders (UNGA Res 45/166, UN Doc A/CONF.144/28/Rev.1, 18 December 1990) 112. Guerrero v Colombia, Comm no R.11/45, (A/37/40, 1982) paras 13.1–13.3. 59

Laurie R Blank

to achieve the legitimate objective.’47 Necessity in LOAC – referred to as the principle of military necessity – is wholly different. The principle of military necessity states that parties to an armed conflict can use all force necessary to achieve the complete submission of the enemy as soon as possible, as long as the law does not prohibit such force. Proportionality in the law enforcement paradigm focuses on the amount of force used against the object of state violence – such force must be proportionate to the state’s objective in using force. Overall, in the context of counter-terrorism outside of armed conflict, therefore, lethal force against suspected terrorists can usually only be used when absolutely necessary to protect potential victims of terrorist acts and when proportionate to that need.48 These contrasting authorities for the use of force demonstrate the dramatic effects of characterising counter-terrorism as armed conflict. Invoking wartime authority is, at base, a decision to harness the authority to use force as a first resort against those identified as the enemy, whether insurgents, terrorists or the armed forces of another state. In the absence of conflict, a state can only use force as a last resort and only on the basis of conduct posing a direct threat at that time,49 a very different and more protective paradigm. LOAC also accepts the incidental loss of civilian lives as collateral damage, within the bounds of the principle of proportionality, which means that innocent individuals do die in conflict without such deaths constituting any violation of the law or triggering criminal accountability. Human rights law, however, contemplates no such casualties. Another notable distinction between the two paradigms regarding the use of force arises in terms of the obligation, or lack thereof, to capture. Although LOAC authorises the use of force as a first resort, any individual who is hors de combat due to sickness, wounds or detention may not be attacked.50 LOAC also forbids any denial of quarter: killing or wounding an enemy fighter who has laid down his arms and surrendered is a war crime under Article 8(2)(b)(vi) of the Rome Statute of the International Criminal Court.51 The prohibition on killing or harming detained persons does not extend to an obligation to seek to capture before killing: LOAC does not impose an obligation proactively to offer opportunities for surrender.52 In contrast, human rights law requires an attempt to capture a suspected terrorist before any lethal targeting. Thus, if non-forceful measures can foil the terrorist attack without the use of deadly force, then the state may not use force in self-defence.53 The supremacy of the right to life means that ‘even the most dangerous individual must be captured, rather than killed, so long as it is practically feasible

47

48 49 50 51

52

53

60

N Lubell, Extraterritorial Use of Force Against Non-State Actors (OUP, Oxford, 2010) 173. Compare, however, with the UK approach which permits lethal force against imagined future harm as well as imminent harm, AG Northern Ireland’s (No 1 of 1975) [1977] AC 105. Although cf AG Northern Ireland’s (No 1 of 1975) [1977] AC 105. See G Corn, ‘Mixing Apples and Hand Grenades: The Logical Limit of Applying Human Rights Norms to Armed Conflict’ [2010] 1 Journal of International Humanitarian Legal Studies 52, 76. See AP I, art 41. Rome Statute of the International Criminal Court, UN Doc A/CONF.183/9 (July 17, 1998), Art 8(2)(b)(vi)), available at: www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be940a655eb30e16/0/ rome_statute_english.pdf accessed 15 March 2015; AP I, art 40; Convention (IV) Respecting the Laws and Customs of War on Land and Its Annex: Regulations Concerning the Laws and Customs of War on Land, at art 23(d), October 18, 1907, 36 Stat 2277,TS 539. D Kretzmer, ‘Targeted Killing of Suspected Terrorists: Extra-Judicial Executions or Legitimate Means of Defence?’, [2005] 16 European Journal of International Law 171, 191; see also M Milanovic, ‘When to Kill and When to Capture?’ (EJIL: Talk! 6 May 2011) www.ejiltalk.org/when-to-killand-when-to-capture/ accessed 3 July 2014. See McCann v United Kingdom App No 18984/91 27 September 1995 (1996) 21 EHRR 97 (noting that lethal force is disproportionate whenever non-lethal alternatives are available).

What’s in a word?

to do so, bearing in mind all of the circumstances.’54 No more, this obligation to capture first rather than kill is not dependent on the target’s efforts to surrender; the obligation actually works the other way: the forces may not use deadly force except if absolutely necessary to protect themselves or innocent persons from immediate danger, that is, self-defence or defence of others. When armed conflict is substituted as a paradigm for counter-terrorism without appropriate justification – because of heightened rhetoric of war or other reasons – the differences between these approaches to the use of force have substantial effects on the protection of persons and individual rights. If, for example, a use of force against an individual is judged based on LOAC proportionality rather than human rights proportionality because all counter-terrorism operations are presented as war, then two sets of rights lose protection. First, the individual’s right to not be targeted with deadly force as a first resort is disregarded. Second, those persons who fall within the category of ‘incidental casualties’, whose death is not a violation of the LOAC but would likely be a violation of human rights law, face equally diminished protections.55 If a consistent terminology of war enables states to use lethal force as a first resort against individuals in situations that would not otherwise be considered armed conflict, the established framework for the protection of the right to life would begin to unravel. Perhaps in response, the opposite conflation is a current trend, with human rights law parameters leaking into the implementation and analysis of LOAC.56

Prosecutions Notwithstanding the extensive international attention centred on targeted killings and detention, the criminal justice system and prosecution remain one of the primary tools of counter-terrorism. The US has arrested, prosecuted and incarcerated hundreds of individuals for terrorism and terrorism-related crimes in federal court.57 Spain records an average of 140 terrorism convictions each year.58 In Australia, thirty-seven individuals were charged and twenty-five convicted as of 2011 under that country’s anti-terror laws.59 From 9/11 to 31 March 2013, 330 terror-related charges resulted in conviction in Great Britain.60

54 55

56

57

58

59 60

Milanovic (n 52). Although ‘the justification of so-called collateral damage… is not illegal per se under international human rights law, [it] would be far more difficult than it is under IHL’ (Robin Geiß and Michael Siegrist, ‘Has the Armed Conflict in Afghanistan Affected the Rules on the Conduct of Hostilities?’ [2011] 93 International Review of the Red Cross 11, 24 and 69). Al-Jedda v UK (n 19); Al-Skeini v UK, App No 55721/07, 7 July 2011 (2011) 53 EHRR 18; AlSaadoon and Mufdhi v UK,App No 61498/08, 2 March 2010 (2010) 51 EHRR 9. Cf Hassan v UK, App No 29750/09, 16 September 2014. See also LR Blank, ‘Targeted Strikes: The Consequences of Blurring the Armed Conflict and Self-Defense Justifications,’ 38 William Mitchell Law Review 1655, 1683–93 (2012). Human Rights First, ‘Fact Sheet: Federal Courts Continue to Take Lead in Counterterrorism Prosecutions’ www.humanrightsfirst.org/wp-content/uploads/Federal-Courts-Continue-to-TakeLead-in-CT-Prosecutions.pdf accessed 3 July 2014 (noting 494 federal court convictions of persons charged with terrorism offenses between 11 September 2001 and 31 December 2011). M Mendoza,‘Global Terrorism: 35,000 Worldwide Convicted for Terror Offenses Since September 11 Attacks’ (Huffington Post, 3 September 2011) www.huffingtonpost.com/2011/09/03/ terrorism-convictions-since-sept-11_n_947865.html accessed 3 July 2014. N McGarrity,‘“Testing” Our Counterterrorism Laws: The Prosecution of Individuals for Terrorism Offences in Australia’ (2010) 34 Criminal Law Journal 92. Home Office, Operation of Police Powers under the Terrorism Act 2000 and Subsequent Legislation (London, 2013). 61

Laurie R Blank

As with detention and the use of force, the legal parameters for prosecutions – and the nature and amount of process afforded to accused persons – can depend in part on whether there is an armed conflict and, if so, on the status of the accused persons. One fundamental premise of the rule of law and due process is that persons charged with a crime must be afforded the opportunity to be brought before a court of law for adjudication of their guilt or innocence. The rights and procedures for fair trials are well established in international human rights law. Article 14 of the ICCPR provides that ‘everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law’.61 During armed conflict, LOAC mandates individual and command criminal responsibility for violations of LOAC.62 The Geneva Conventions require states to suppress grave breaches by enacting penal legislation, searching for perpetrators and investigating crimes and prosecuting or extraditing those so accused.63 Second, LOAC sets forth comprehensive procedures and protections for any trial of both POWs and others detained during international armed conflicts and occupation. POWs can be tried only in a court-martial and only for offences for which soldiers of the detaining state would likewise be tried.64 Most importantly, under the principle of combatant immunity discussed above, LOAC proscribes the trial of a lawful combatant for lawful acts of war committed within the context of an armed conflict; thus, a combatant may not be prosecuted for murder for the otherwise lawful act of killing an enemy combatant.65 Combatants are, however, subject to trial for war crimes, other pre-capture criminal acts unrelated to the conflict and crimes committed during captivity.66 Individuals who engage in hostilities but are not combatants can be tried in a variety of fora, including military commissions, domestic courts, international tribunals and other appropriate venues. In all such cases, however, LOAC mandates a minimum threshold of judicial guarantees and protections. Article 75(4) of Additional Protocol I provides a lengthy catalogue of fair trial guarantees, a notable addition to the corpus of law protecting individuals during conflict. Now codified and recognised as customary international law,67 these guarantees are no longer rights

61 62

63

64 65

66

67

62

ICCPR art 14(1). See also ECHR, art 6. V Hansen, ‘What’s Good for the Goose is Good for the Gander: Lessons from Abu Ghraib: Time for the United States to Adopt a Standard of Command Responsibility Towards its Own, [2007] 42 Gonzaga Law Review 335. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, art 49, 12 August 1949, 6 UST 3114, 75 UNTS 31 [hereinafter First Geneva Convention]; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, art 50, 12 August 1949, 6 UST 3217, 75 UNTS 85;Third Geneva Convention, art 129; and Fourth Geneva Convention, art 146. Third Geneva Convention, arts 84, 87. Third Geneva Convention, art 87 (prohibiting sentencing combatants to any penalties other than those provided for members of the armed forces of the detaining power); and art 99 (prohibiting trial of prisoners of war for any act that was not forbidden by international law or the law of the detaining power at the time the act was committed). US v Lindh (n 15). J Bialke, ‘Al-Qaeda and Taliban Unlawful Combatant Detainees, Unlawful Belligerency, and the International Laws of Armed Conflict’ [2004] 55 Air Force Law Review 1, 9–10; G Corn and S Finegan, ‘American’s Longest Held Prisoner of War: Lessons Learned from the Capture, Prosecution, and Extradition of General Manuel Noriega’ [2011] 71 Louisiana Law Review 1111, 1121–1123. J Henckaerts and L Doswald-Beck, 1 Customary International Humanitarian Law (ICRC, Geneva 2005) 3–8 [hereineafter CIHL]; ‘White House Fact Sheet: New Actions on Guantánamo and Detainee Policy’, 7 March 2011, www.whitehouse.gov/the-press-office/2011/03/07/fact-sheetnew-actions-guant-namo-and-detainee-policy accessed 3 July 2014.

What’s in a word?

from which a state can derogate during times of conflict out of reasons of national security or national emergency.68 During occupation, the Fourth Geneva Convention sets forth detailed procedures and protections for civilians detained by the occupying power and also mandates that the penal laws of the occupied state continue to apply during the occupation.69 In non-international armed conflict, however, LOAC offers little guidance for trials of either persons who are fighting or other individuals. All persons taking no active part in hostilities are protected from extrajudicial sentencing and execution, as informed by general principles of international law.70 Customary international humanitarian law applicable in non-international armed conflict is recognised as guaranteeing a right to fair trial for all detainees.71 Importantly, though, individuals engaged in a non-international armed conflict are not protected by combatant immunity, meaning they may be tried under domestic law for engaging in acts that, had they been committed by a combatant during an international armed conflict, would be considered lawful.72 Ultimately, persons detained during a non-international armed conflict, though protected by Common Article 3, are subject to domestic law. It is this distinction between the role for international law and domestic law that the assertion of an armed conflict paradigm most implicates. When a state proclaims that individuals are being tried under the law of war, both the forum and the nature of the crimes are at issue. The latter issue has proven to be particularly contentious in recent years, as countries have wrestled with the types of crimes that can be prosecuted within the law of war paradigm. Thus, for example, although the US had prosecuted terrorists for years in civilian courts, the decision to use military commissions ‘had real legal ramifications, permitting, for example, the trial of at least some suspected terrorists for war crimes.’73 But which crimes are war crimes? In the context of counter-terrorism, this question has challenged the parameters of war crimes and produced extensive litigation regarding the crimes that fit within the definition of violations of the law of war. A brief discussion of three crimes in particular highlights how bold assertions of armed conflict or the rhetoric of war can gravely impact the use of prosecutions as a tool of counter-terrorism: murder in violation of the laws of war; conspiracy; and material support to terrorism. The latter two crimes lie at the heart of counter-terrorism prosecution: many convictions in US criminal court involve one of these two offences. And yet the laws of war do not include the crime of material support for terrorism and generally do not criminalise the crime of conspiracy as a standalone crime. As a result, prosecuting these two crimes in the military commissions at Guantánamo Bay has exposed the fault lines not only between prosecutions in armed conflict and outside, but also between prosecutions for violations of LOAC and for crimes under domestic criminal law. After several years of litigation in the military commissions

68 69 70 71 72

73

ICCPR art 4; ECCHR art 15; American Convention on Human Rights, art 27, 22 November 1963, 1144 UNTS 123. Fourth Geneva Convention, arts 64–75. Common Article 3. CIHL (n 67) 352–54. J Cerone, ‘Status of Detainees in Non-international Armed Conflict, and Their Protection in the Course of Criminal Proceedings: The Case of Hamdan v. Rumsfeld’ (2006) 10(17) ASIL Insights (noting that ‘non-state combatants in a non-international armed conflict may be prosecuted for all hostile acts, including violations of ordinary domestic law, irrespective of whether they have violated any norms of international law’). D Glazier, ‘Destined for an Epic Fail: The Problematic Guantánamo Military Commissions’, available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2419656 accessed 3 July 2014. 63

Laurie R Blank

and federal court, the Court of Appeals for the District of Columbia has ruled that ‘the international law of war… does not… identify material support for terrorism as a war crime.’74 Similarly, the US Supreme Court held in Hamdan v Rumsfeld that ‘conspiracy is not a recognized violation of the law of war.’75 Finally, murder in violation of the law of war – the crime with which the US charged Omar Khadr, among others – also does not fit within LOAC’s framework. Murder in violation of the law of war is an attempt to criminalise an attack by a person who is not a combatant against another who is a lawful combatant. However, LOAC does not criminalise participation in armed conflict; rather, persons who participate in hostilities without the combatant’s privilege face two consequences: they lose their immunity from attack and they are susceptible to prosecution for violations of domestic law. In essence, murder in violation of the law of war is an attempt by the prosecuting state to ‘have its cake and eat it too’; as some argue, it ‘repudiates the functional equivalence between the conflict parties which is a core element of the LOAC and attempts to transform this law from one even-handedly regulating the conduct of both parties into a unilateral shield for one side’.76 The impact of war on counter-terrorism operations thus manifests in similar ways as with detention and the use of force, with consequences for individual rights and for the development and implementation of international law. As the US experience with military commissions has demonstrated, the mix of LOAC and counter-terrorism can create interesting and problematic applications of law that threaten the ability of individuals to get a fair trial in the appropriate venue or forum. Although the revised and reconstituted military commissions now have procedural protections at least reasonably similar to those of either courts-martial or federal courts,77 in the initial years, protections for accused were inferior. The consequences of bleeding LOAC into counter-terrorism and vice versa therefore meant that certain individuals received lesser protections when facing the same charges as others, simply because the US had declared that such persons were captured and tried in the course of an armed conflict. At the same time, the attempt to incorporate non-LOAC crimes into war crimes jurisdiction poses a threat to the integrity of LOAC. A separate [nation-specific law of war] jeopardizes the principle that war crimes rest on shared conceptions of exceptionally grave conduct. It suggests, moreover, that each state may unilaterally define its own sub-set of war crimes, creating the possibility of multiple and inconsistent definitions of criminal liability during armed conflict.78 These three examples – detention, use of force and prosecutions – demonstrate how either counter-terrorism laws that invoke war, or an effective rhetoric of ‘war’, can lead to the use of LOAC in ways and circumstances not necessarily foreseen within the existing legal framework. This does not mean that LOAC is inapplicable to the challenges of terrorism and counterterrorism or that counter-terrorism should be viewed exclusively as law enforcement or 74 75 76 77 78

64

Hamdan v Rumsfeld 696 F3d 1238, 1241 (DC Cir 2012) 5. See also Al Bahlul v US, 2013 US App LEXIS 8120 (DC Cir Apr 23, 2013). Hamdan v Rumsfeld 548 US 557, 737 (2006). D Glazier, ‘A Court Without Jurisdiction: A Critical Assessment of the Military Commission Charges Against Omar Khadr’ 16 http://ssrn.com/abstract=1669946 accessed 3 July 2014. JK Elsea, ‘Comparison of Rights in Military Commission Trials and Trials in Federal Criminal Court’ (Congressional Research Service, Paper R40932, Washington DC, 2014). J Hafetz, ‘What’s in a Name? Military Commissions and Criminal Liability under a US Common Law of War’ (opiniojuris.org, 12 September 2013).

What’s in a word?

exclusively as armed conflict. Nonetheless, it is important to recognise how LOAC and laws to combat terrorism can either work together or can mix and match legal paradigms in ways that may advance the state’s interest in preserving national security but at the expense of individual rights.

Re-characterising conflict as counter-terrorism For the past thirteen years, the international community’s robust debate about how states can lawfully and effectively respond to terrorist threats has focused almost completely on whether a state can view a struggle against terrorists as an armed conflict and, if so, how LOAC applies to such operations. But recent history also demonstrates an opposite and equally damaging challenge: that of states who characterise an internal armed conflict as counter-terrorism operations and not armed conflict. Doing so allows states to argue that their efforts to combat terrorists are solely a matter of domestic law and that LOAC does not apply, ostensibly providing a freer rein to address the threat with less international oversight. A reader of international and national security news might imagine that States are at war with other States or with non-State armed groups whenever they say they are at war. However, the identification of when LOAC applies is not a rhetorical or political process but rather turns on an objective analysis of the facts of a given situation to determine whether it meets the threshold for triggering LOAC. LOAC applies whenever a situation of violence meets the threshold for armed conflict, either international or non-international. For international armed conflict, Common Article 2 of the 1949 Geneva Conventions states that the Conventions ‘shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognised by one of them.’79 Any dispute between two States involving their armed forces, no matter how minor or short-lived, thus triggers application of Common Article 2 and the full body of LOAC. Of more relevance here, non-international armed conflict – a conflict covered by Common Article 3 of the Geneva Conventions – is marked by protracted armed violence between a state and an organised armed group or between two or more organised armed groups.80 The threshold for non-international armed conflict is thus higher than that for international armed conflict. Two considerations have proven to be particularly important to courts and tribunals faced with determining the existence of a non-international armed conflict: ‘the intensity of the conflict and the organization of the parties to the conflict.’81 These criteria help to ‘distinguish… an armed conflict from banditry, unorganised and short-lived insurrections, or terrorist activities, which are not subject to international humanitarian law.’82 Common Article 3’s extension in 1949 of international legal regulation to non-international armed conflict represented a revolutionary but necessary intrusion of fundamental humanitarian principles into state sovereignty.83 Historically, states resented international involvement

79 80 81

82 83

Common Article 2 to the Four Geneva Conventions. See Commentary (n 9) 20. Prosecutor v Tadic, Case No IT-94-1, Decision on Defence Motion for Interlocutory Appeal on Jurisdiction (ICTY 2 October 1995) para 70. Tadic, Case No IT-94-1-T, Judgment, (ITCY 7 May 1997) para 562; S Vite, ‘Typology of Armed Conflicts in International Law: Legal Concepts and Actual Situations’ [2009] 91 International Review of the Red Cross 76–77. Ibid. Commentary (n 80) 26, 44. 65

Laurie R Blank

in internal disputes, viewing internal conflict as a matter of domestic concern only.84 In some recent conflicts, terrorism has proven to be a magic escape hatch for the state seeking to deflect international attention from their military operations. Thus, for example,‘Russia has described its actions in Chechnya as a tightly focused counter-terrorism operation.’85 It did so in order to maximise free rein in responding to Chechen separatists, notwithstanding the fact that the situation in Chechnya clearly met the threshold for a non-international armed conflict. Indeed, the Russian Constitutional Court declared that Additional Protocol II to the Geneva Conventions applied to the conflict, noting, among other reasons, the Presidential Decree stating that disarmament of the unlawful armed militia raised in [Chechnya], which were using tanks, missile launchers, artillery systems and war planes, ‘was impossible in principle without the use of regular troops.’86 Sri Lanka similarly took advantage of the ‘war on terror’ language of the post-9/11 years to engage in an aggressive and unrelenting campaign to defeat the Tamil Tigers once and for all, marked by extensive and brutal LOAC violations.87 At one point, the former Foreign Minister stated that the situation ‘was not a civil war’ but rather an effort to fight terror ‘relentlessly and globally’ in ‘all its manifestations’.88 The consequences of substituting counter-terrorism for armed conflict in this manner is equally, if not more, damaging to the pursuit and fulfilment of international law’s core purposes in regulating warfare and the treatment of persons in all situations of violence. In many situations, the application of LOAC represents a fundamental demarcation between law and no law at all, between a measure of humanity and unmitigated brutality.89 Although human rights law still applies in such situations, human rights law does not contemplate, nor is it designed to address, the targeting of hospitals and safe zones,90 bombing evacuation routes,91 the protection of cultural property or the determination of legitimate targets and protected objects. The effect of denying the existence of an armed conflict can thus result in a lower level of protection for individuals and property in such situations. Furthermore, the absence of armed conflict and LOAC means the absence of international criminal responsibility for war crimes and other violations of international law during conflict. Although widespread human rights violations

84 85 86

87 88 89 90 91 66

Ibid 27 (noting the resistance of states to recognising internal violence as armed conflict subject to international regulation). Human Rights Watch, In the Name of Counterterrorism: Human Rights Abuses Worldwide (Human Rights Watch, New York, 2003) 18–19. Decision of the Constitutional Court of the Russian Federation on the Constitutionality of Presidential Decrees, July 31, 1995, Rossijskaia Gazeta of August 11, 1995, 3–7, reprinted in (1996) 17 Human Rights Journal 133. Report of the Secretary-General’s Panel of Experts on Accountability in Sri Lanka, 31 March 2004. Channel 4 ‘Sri Lanka Killing Fields’: Is the US War on Terror Responsible? (Channel 4, 17 June 2011). L Blank and G Corn, ‘Losing the Forest for the Trees: Syria, Law and the Pragmatics of Conflict Recognition’ [2013] 46 Vanderbilt Journal of Transnational Law 693. UN Secretary-General,‘Internal Review Panel on United Nations Action in Sri Lanka: Rep. of the Secretary-General’ (November 2012) 9–10. Isayeva v Russia App No 57947/00, 24 February 2005.

What’s in a word?

can certainly result in international criminal responsibility,92 there is little doubt that the accountability mechanisms and framework for LOAC violations are much more predictable – a factor that must inevitably impact deterrence in those situations.

92

Prosecutor v Muthaura, Case no ICC-01/09-02/11, Decision on the Prosecutor’s Application for Summonses To Appear, (8 March 2011) paras 56–57. Available at www.icc-cpi.int/iccdocs/ doc/doc1037052.pdf accessed 3 July 2014 (issuing summonses to the accused due to their reasonable likelihood of committing crimes against humanity); Rep of Int’l Comm. of Inquiry Mandated To Establish the Facts and Circumstances of the Events of 28 September 2009 in Guinea (S/2009/693, 18 December 2009) para 266 (recommending that due to the deficiencies of the Guinean justice system, situations involving crimes against humanity should be referred to the International Criminal Court). 67

5 The migration and derivation of counter-terrorism Kent Roach

Introduction Much research has focused on examining the proliferation of counter-terrorism laws and to a lesser extent on comparing the approaches of different countries. Not enough attention, however, has been paid to the migration and derivation of counter-terrorism laws. Migration refers to a process where a law or a part thereof enacted in one jurisdiction or in one field of law is adapted and migrates to another jurisdiction or other field of law. This process has been called transplantation, harmonisation or even viral propagation, but the concept of migration more accurately captures the subtle changes made to laws as they migrate. Even minor changes are often expressive of important differences in a country’s political, legal or social culture and its history. Even an identical law that migrated would have a different meaning in a different legal or political system. A counter-terrorism law drafted in London has a different meaning when transplanted to Kuala Lumpur. The derivation of a law refers to the original sources of a particular law. Understanding the derivation of a particular law often captures its migration over time and space. There is a literature on the migration of law,1 but it has not focused on counterterrorism law even though the migration phenomena may be particularly intense with respect to counter-terrorism law.2 Transnational bodies, such as the Financial Action Task Force3, the EU4

1

2

3 4

68

See, for example, S Choudhry (ed.), The Migration of Constitutional Ideas (Cambridge University Press, Cambridge, 2006); RA Macdonald, ‘Three Metaphors of Norm Migration in International Context’ (2009) 34 Brooklyn Journal of International Law 603. The post-9/11 growth of counterterrorism laws could be seen as a form of viral propagation, but, as Elspeth Guild has suggested to me, this metaphor has a tendency to downplay questions of agency in migration. See K Roach,‘The Post 9/11 Migration of Britain’s Terrorism Act, 2000’ in S Choudhry (ed.) The Migration of Constitutional Ideas (Cambridge University Press, Cambridge, 2006); K Roach The 9/11 Effect: Comparative Anti- Terrorism Law (Cambridge University Press, Cambridge, 2011) 442–4. See Chapter 16 (Sproat) in this book. For an account of how Spain took advantage of the Council Framework Decision 2008/919/JHA of 28 November 2008 amending Framework Decision 2002/475/JHA on combating terrorism to enact broad terrorism laws in 2010 see Chapter 13 (Cancio Melia and Petzche) in this book.

The migration and derivation of counter-terrorism

and the UN Security Council,5 have promoted the migration of counter-terrorism laws by encouraging countries to enact counter-terrorism laws often with specific requirements. The literature that is available on migration of counter-terrorism law, much of it European, seems mired in a traditional focus on whether members of the EU have successfully harmonised and transposed the 2002 EU Framework Decision into domestic laws.6 The implicit assumption seems to be that a failure to copy the Decision represents a failure of political will and/or capacity. This may be true in some situations, but the alternative hypothesis – that differences may be an expression of legitimate differences in political, social and legal culture – needs to be explored. The EU experience should also be compared with more voluntary processes of migration of terrorism laws that will be examined in this chapter with respect to the UK’s and Egypt’s definitions of terrorism. A full study of the migration and derivation of counter-terrorism laws is obviously beyond the scope of this chapter, so the focus here will be on the migration and derivation of a few definitions of terrorism. Definitions of terrorism are the heart of counter-terrorism codes.7 They often trigger and define broad investigative powers and a wide range of offences. A recurring theme in all counter-terrorism law is the difficulty, some would argue the impossibility, of defining terrorism in a legally and politically satisfactory manner. The UN Security Council fuelled the pump for migration of terrorism law. After 9/11, the Security Council in Resolution 1373 called on all states to ensure that terrorism and the financing of terrorism were treated as serious crimes but at the same time the Resolution provided no guidance on how to define terrorism. This chapter will focus on the migration and derivation of definitions of terrorism taken from the UK’s Terrorism Act 2000, Egypt’s 1992 definition of terrorism and the 2002 EU Framework Decision. A focus on the derivation as well as the migration of terrorism laws can help identify trends in counter-terrorism law.8 This chapter will examine the spread of broad definitions of terrorism from established democracies to those that are at best developing towards democracy. There are also concerns about a lack of transparency about transplantation.9 Migration of law can be a vehicle for a neo-colonialism, whereby developing countries take perhaps inappropriate cues from former colonial and other significant powers. A more optimistic take on migration might be that it also represents a helpful move towards global convergence of counter-terrorism law, which can facilitate legal cooperation. Nevertheless, full convergence remains unlikely and undesirable given the need for self-determination and democracy in each nation.10 A study of how migration facilitates convergence can help identify trends, including post 9/11 trends towards greater state counter-terrorism policing powers and regulation of speech and associations connected with terrorism. Adding a temporal dimension to such studies will also help identify trends. One provocative hypothesis is that countries such as Malaysia, Pakistan,

5 6 7 8 9

10

Roach The 9/11 Effect (n 2) ch 2. See Council Framework Decision of 13 June 2002 on combating terrorism (2002/475/JHA). See Chapter 2 (Saul) in this book. K Roach, ‘Sources and Trends in Post 9/11 Anti-Terrorism Law’ in B Goold and L Lazurus (eds) Human Rights and Security (Hart Publishing, Oxford, 2007). L Donohue, ‘Transplantation’ in V Ramraj and others (eds) Global Anti-Terrorism Law and Policy (2nd edn, Cambridge University Press, Cambridge, 2012) 86 (calling for use of ‘a sort of Kantian condition of publicity’ about transplantation of counter-terrorism ideas both within different types of law and among countries). V Ramraj, ‘The Impossibility of Global Anti-Terrorism Law?’ in V Ramraj and others (eds) Global Anti-Terrorism Law and Policy (2nd edn, Cambridge University Press, Cambridge, 2012). 69

Kent Roach

Egypt and Israel that have relied on ‘older’ security laws derived from colonial emergency and wartime rule may now be in a position where they can adopt modern counter-terrorism laws patterned after European laws without sacrificing much, if anything, in terms of state power to prevent terrorism.

Influence of the UK Definition of Terrorism It is not difficult to understand why the definition of terrorism in the UK’s Terrorism Act 2000 was so influential as countries responded to 9/11 and Security Council Resolution 1373 when enacting new counter-terrorism laws. The law was brand new at the time and benefited from the UK’s reputation as a steady and experienced hand in matters of terrorism, a reputation symbolised by the fact that British security officials were the very first allowed in American airspace to provide their sympathies and advice to their American counterparts. Britain’s enviable reputation should not, however, disguise the breadth of the definition of terrorism in the Terrorism Act 2000 or the fact that it includes membership, speech, preventive arrest, random search powers and extremely vague offences that would not be acceptable in many countries with a constitutional bill of rights. Although the USA PATRIOT Act became a symbol of post-9/11 repression, it is a more restrained counter-terrorism code compared with the Terrorism Act 2000.11 The USA PATRIOT Act’s complex nature and its reliance on various predicate offences in its definitions of terrorism also explain why it is much less influential than the British definition. Section 1 of the Terrorism Act 200012 as enacted provides: (1)

(2)

(3) (4)

11 12

70

In this Act ‘terrorism’ means the use or threat of action where – (a) the action falls within subsection (2); (b) the use or threat is designed to influence the government or to intimidate the public or a section of the public; and (c) the use or threat is made for the purpose of advancing a political, religious or ideological cause. Action falls within this subsection if it – (a) involves serious violence against a person; (b) involves serious damage to property; (c) endangers a person’s life, other than that of the person committing the action; (d) creates a serious risk to the health or safety of the public or a section of the public; or (e) is designed seriously to interfere with or seriously to disrupt an electronic system. The use or threat of action falling within subsection (2) that involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied. In this section – (a) ‘action’ includes action outside the UK, (b) a reference to any person or to property is a reference to any person, or to property, wherever situated;

Roach, The 9/11 Effect (n 2) 175–95. c11. See Lord Carlile, The Definition of Terrorism (Cm 7052, London, 2007) and Government Reply (Cm 7058, London, 2007); C Walker, Terrorism and the Law (Oxford University Press, Oxford, 2011) chap 1; D Anderson, Report on the Operation in 2013 of theTerrorism Act 2000 and Part I of theTerrorism Act 2006 (Home Office, London, 2014).

The migration and derivation of counter-terrorism

(c)

(5)

a reference to the public includes a reference to the public of a country other than the UK; and (d) ‘the government’ means the government of the UK, of a part of the UK or of a country other than the UK. In this Act a reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation.

The breadth of this definition is difficult to understate. It includes not only actions but also the undefined concept of a ‘threat of action’. It includes actions designed not only to intimidate the public, but ‘to influence the government’. It singles out religiously and politically motivated crimes that can include those that only involve serious damage to property or serious interferences with electronic systems or any use of firearms or explosives. It also includes any ‘action taken for the benefit of a proscribed organisation’ as a form of terrorism. As will be seen, a number of countries while influenced by this broad definition, would take more restrained approaches to defining terrorism and in particular provide some exemptions for protesters, strikers and freedom fighters. The British definition of terrorism also includes terrorism aimed at influencing all governments. The Supreme Court in R v Gul13 has recognised with some regret that this provides protection for the most repressive governments. The problem of drawing a line between freedom fighters and terrorists is well known, but the Terrorism Act 2000 did not even bother to draw such a line. Another recent case affirms that politically motivated leaks of information that could endanger any person’s life also falls within the broad definition of terrorism in the Terrorism Act 2000.14 The UK definition did not until 200615 include attempts to influence international organisations in line with many international conventions. This amendment was in part a belated response to the 2002 EU Framework Decision, which following international conventions included this concept. The Terrorism Act 2000 also reflected the novelty of the internet and concerns about possible computer crashes at the Millennium by targeting interferences with ‘electronic systems’. As will be seen, other countries have expanded this reference to electronic systems to cover a broader range of critical infrastructure. Although the Terrorism Act 2000 was enacted by a Labour government, its refusal to provide any exemption for protesters, strikers or freedom fighters was perhaps a faint echo of Prime Minister Thatcher’s famous views that terrorism is simply an inexcusable crime: ‘[c]rime is crime is crime. It is not political.’16 In any event, these features of the law underline the importance of national sovereignty and democratic debate about the definition of terrorism. They raise questions about whether a focus on harmonising definitions of terrorism makes sufficient allowance for these attributes. Lord Lloyd conducted an inquiry into British terrorism laws and recommended in 1996 that definitions used in Northern Ireland based on the use of violence for political ends and placing the public in fear were inadequate given the vulnerabilities of modern society and the growth and evolution of international terrorism to include religious terrorism. Drawing on a broad definition used by the Federal Bureau of Investigation, he recommended a new definition of

13 14 15 16

[2013] UKSC 64 [62]-[67]. Miranda v SSHD [2014] EWHC 255. Terrorism Act 2006, c11, s 34. B Levin and L Donosky, ‘Death wish in Ulster’ (1981) Newsweek 40. 71

Kent Roach

terrorism quite similar to that eventually enacted.17 Professor Clive Walker has raised the valid point that the working definitions used by the police or intelligence agencies may legitimately be broader than legal definitions for use in criminal law.18 US law, including in the USA PATRIOT Act, defined terrorism in a more limited manner than the Terrorism Act 2000 and without reference to the political or religious motivation of terrorism.19 New research, facilitated by a helpful database compiled by the UN Office of Crimes and Drugs,20 helps reveal the wide influence of the definition of terrorism in the Terrorism Act 2000. One of the first adopters of the British definition was Pakistan, which amended its Anti Terrorism Act 1997 in August 2001 under the leadership of President Parvez Musharraf.21 The 1997 legislation had also featured a broad definition of terrorism, which in its reference to overawing government, disrupting social harmony and disrupting essential services and supplies, seems to have been inspired by the definition of terrorism in section 3 of India’s infamous Terrorist and Disruptive Activities Act of 1987, which had been repealed and was discredited in India by 1995. The 2001 changes were part of an effort to demonstrate that Pakistan would be more engaged with international terrorism. Borrowing from the British law provided a vehicle to demonstrate such a commitment and a form of modernisation without sacrificing the breadth of prohibited conduct or the power that it provided to the state. The Pakistani amendments were enacted in a distinct legal and political context. The law as amended would be administered in special and military courts. In any event, the Pakistani Supreme Court was stacked at the time with Musharraf ’s supporters. The law could also be used against dissenters from the regime, including the former Prime Minister, Nawaz Sharif, who was convicted in 2000 in a special court of a newly scheduled terrorism hijacking offence for not allowing a plane carrying Musharraf to land in Karachi.22 The new August 2001 definition was clearly influenced by the British definition by providing in an amended section 2: (1)

17 18 19 20 21

22

72

In this Act, ‘terrorism’ means the use or threat of action where: (a) the action falls within the meaning of sub-section (2), and (b) the use or threat is designed to coerce and intimidate or overawe the Government or the public or a section of the public or community or sect or create a sense of fear or insecurity in society; or (c) the use or threat is made for the purpose of advancing a religious, sectarian or ethnic cause.

Inquiry into Legislation Against Terrorism (Cm 3420, London, 1996). See C Walker, Blackstone’s Guide to the Anti-Terrorism Legislation (Oxford University Press, Oxford, 2002) 21–2. Roach, The 9/11 Effect (n 2) ch 4. See www.unodc.org/tldb/en/index.html accessed 14 February 2015. See Anti Terrorism Act 1997, XXVII, s 6 as translated at www.unodc.org/tldb/showDocument. do?documentUid=7785&node=docs&cmd=add&country=PAK accessed 14 February 2015. For additional discussion of terrorism and counter-terrorism in both Pakistan and Malaysia see Chapter 26 (Razak, Rehman and Skoczylis) in this book. C Kennedy, ‘The Creation and Development of Pakistan’s Anti-Terrorism Regime 1997–2002’ in SP Limaye, M Malik and RG Wirsing (eds), Religious Radicalism and Security in South Asia (Honolulu, Asia-Pacific Center for Security Studies. Available at: www.apcss.org/Publications/ Edited%20Volumes/ReligiousRadicalism/PagesfromReligiousRadicalismandSecurityinSouthAsia ch16.pdf, 2004 accessed 14 February 2015. The conviction was overturned in 2009: Sharif v State Criminal Petition No 200 of 2009. Available at: http://supremecourt.gov.pk/web/user_files/ file/crl.p.200of2009.pdf accessed 14 February 2015.

The migration and derivation of counter-terrorism

(2)

An ‘action’ shall fall within the meaning of subsection (1), if it: (a) involves the doing of anything that causes death; (b) involves grievous violence against a person or grievous bodily injury or harm to a person; (c) involves grievous damage to property; (d) involves the doing of anything that is likely to cause death or endangers a person’s life… (i) creates a serious risk to safety of the public or a section of the public, or is designed to frighten the general public and thereby prevent them from coming out and carrying on their lawful trade and daily business, and disrupts civic life… (l) is designed to seriously interfere with or seriously disrupt a communications system or public utility service.23

This definition also contains other subsections (e to n) covering acts such as kidnapping, inciting hatred or contempt on ‘religious, sectarian or ethnic basis’, ‘stoning’, ‘brick batting’ and ‘firing on religious congregations’. These sections are particular to Pakistan including violence between Shia and Sunni sects.24 The parts of the August 2001 Pakistani definition quoted above have striking similarities to the UK definition. For example, both definitions include a ‘threat of action’ within the definition. Section 6(5) of the Pakistani definition follows section 1(5) of the British law by including actions carried out for the benefit of a proscribed organisation within the broad definition of terrorism. Both definitions also include serious or grievous violence and property damage. Both require motives relating to the intimidation of the public, but the British legislation is broader in its reference to political motives and influencing, as opposed to intimidating, the government. This textual difference, however, is in a sense misleading as the Pakistani definition was enacted against a backdrop of using terrorism prosecutions against political opponents. Terrorism laws might be broader in the UK, but it is not a real prospect that they would be used in a similar manner against political opponents of the government. In this sense, what is left out and unstated in the Pakistani definition, namely the concept of terrorism as a politically motivated crime designed to influence the government, is almost more important than what is included. This is another reminder of the importance of paying attention to what is left behind and what is added in terms of the larger political, legal and social environment when a similar law migrates to a new country. The Pakistani legislation is much less broad than the British legislation because it limits the definition of governments to domestic ones and does not include all foreign governments as the British legislation does. The UN Counter-Terrorism Committee (CTC) questioned Pakistan about this omission, implicitly encouraging it to enact an even broader terrorism law25 to deal with well-grounded concerns that elements of Al Qa’ida, including ultimately bin Laden himself, were using Pakistan as a safe haven. This omission in Pakistani terrorism law is significant. It suggests that the differences between developed and developing countries may be found not only in the ‘law in action’26 but also in the law on the books. The Pakistani definition

23 24 25 26

Available at: www.unodc.org/tldb/pdf/Pakistan_Anti-terrorism_Act_1997.pdf accessed 14 February 2015. I am indebted to Javaid Rehman for this point. Pakistan report to the CTC S/2003/307. As suggested in Ramraj ‘The Impossibility of Global Anti-Terrorism Law?’ (n 10). 73

Kent Roach

can be criticised for not joining international battles against terrorism, but at least it was relatively clear and transparent on this point. Malaysia also borrowed from the UK’s Terrorism Act 2000 in its Penal Code (Amendment) Act 2003. Malaysia had in its original 2002 report to the CTC relied on its infamous Internal Security Act 1960 (‘ISA’), inherited from British colonial rule, as its prime response to terrorism. Malaysia soon found it expedient to supplement the ISA by adding a new chapter on terrorism to its Penal Code that defined terrorism to mean: an act or threat of action within or beyond Malaysia that– (a) involves serious bodily injury to a person; (b) involves serious damage to property; (c) endangers a person’s life; (d) creates a serious risk to the health or the safety of the public or a section of the public; (e) involves the use of firearms, explosives or other lethal devices; (f) involves releasing into the environment or any part of the environment or distributing or exposing the public or any part of the public to-(i) any dangerous, hazardous, radioactive or harmful substance; (ii) any toxic chemical; or (iii) any microbial or other biological agent or toxin; (g) is designed or intended to disrupt or seriously interfere with, any computer system or the provision of any services directly related to communications infrastructure, banking or financial services, utilities, transportation or other essential infrastructure; (h) is designed or intended to disrupt, or seriously interfere with, the provision of essential emergency services such as police, civil defence or medical services; (i) involves prejudice to national security or public safety; or (k) involves any combination of any of the acts specified in paragraphs (a) to (i), where the act or threat is intended or may reasonably be regarded as being intended to(aa) intimidate the public or a section of the public; or (bb) influence or compel the Government of Malaysia or the Government of any State in Malaysia, any other government, or any international organisation to do or refrain from doing any act27 The Malaysian law has several important similarities to the British definition. Both laws criminalise ‘threat of action’ and actions designed to ‘influence’ any government. Both laws include serious damage to property, health and safety, electronic systems and the use of firearms and explosives as forms of terrorism. The latter phrase links the modern Terrorism Act 2000 with the older British-inspired ISA which had defined a terrorist as one who used or possessed firearms and explosives.28 It is important to study the migration of security ideas over time as well as over space. The 2003 Malaysian law, influenced by the ISA, also contains vaguer notions of prejudice to national security or public safety29 not found in the Terrorism Act 2000. In this sense, the 2003 27 28 29

74

Penal Code of Malaysia s 130B, inserted by Penal Code (Amendment) Act 2003, A1210. Available at: www.unodc.org/tldb/showDocument.do?documentUid=6805&q= accessed 14 February 2015. ISA 1960, Act 82, s 2. An alternative definition of a terrorist under the ISA, one which also indicates some of the antecedents to modern terrorism financing laws, is one who demands, collects or receives supplies for those who act ‘in a manner prejudicial to public safety or the maintenance of public order’. Ibid s 2.

The migration and derivation of counter-terrorism

Malaysian law has a foot in colonial Britain and a foot in modern Britain. Although Malaysia repealed the ISA in 2012,30 its 2003 law demonstrated some support for the ISA’s sweeping vision of security and its concern with internal enemies of the state. The 2003 law departed from the Terrorism Act in not requiring proof of religious or political motive illustrating some sensitivity, also found in neighbouring Indonesia and Singapore, to criminalising religious motive. Countries with Muslim majorities or as in Singapore with significant Muslim minorities have often not used the political or religious motive requirement perhaps to avoid any suggestion that terrorism is defined even in part by religion. The use that Pakistan and Malaysia made of the definition of terrorism in the Terrorism Act 2000 should give supporters of that definition pause for thought. In 2007, Lord Carlile wrote a report supportive of the 2000 definition. Although he surveyed definitions of terrorism in over 60 countries, neither Pakistan nor Malaysia were on his long list.31 Might it be possible that the use of the 2000 definition in countries with poor human rights records might be somewhat embarrassing to defenders of the definition? Lord Carlile’s remit was, of course, limited to the question of whether the definition of terrorism had been abused in the UK. Nevertheless, the influence of the definition had spread well beyond the UK’s borders by 2007. The British legislation was very influential in many Commonwealth countries. Section 1 of Grenada’s Terrorism Act 2003 is almost an exact copy of section 1 of the Terrorism Act 2000.32 Kenya enacted a Prevention of Terrorism Act in 201233 that borrows heavily from the UK definition, but section 1 expands the prohibited act to disruption of essential services as well prejudicing ‘national security or public safety’. In this respect, the Kenyan law borrows from older British colonial emergency in a manner somewhat similar to the 2003 Malaysian law. The Kenyan law also borrows from an exemption for strikes and protests that Canada grafted onto its British-inspired definition, but narrows the scope of the Canadian exemption by providing that it does not apply to strikes and demonstrations that result in serious damage to property. Although Canada used the Terrorism Act 2000 as a template when it quickly enacted its first counter-terrorism law in December 2001,34 it departed from it in several important respects. Canada required that substantial property damage must also endanger life, and it exempted protests and strikes that did not endanger life. The latter exemption has been quite influential and shaped laws in Australia, Bahamas, Kenya, South Africa and Tanzania. The Canadian legislation also provided some exemptions for freedom fighters and armed forces acting in armed conflicts governed by international law. The UK Supreme Court has recently cited this Canadian exemption as one that should be considered by Parliament.35 Courts will encourage comparisons between the terrorism laws of different countries especially in applying proportionality tests that focus on whether the aim of suppressing terrorism can be achieved by less-restrictive means. The UK Supreme Court, perhaps reflecting the absence of a constitutional bill of rights, stopped short of declaring the more expansive British definition to be invalid because it did not provide the limited protections for freedom fighters contained in the Canadian definition. Nevertheless, the Canadian comparison does cast some doubt on Lord 30

31 32 33 34 35

Note that Malaysia has enacted broad terrorism laws after the repeal of its ISA. See Security Offences (Special Measures) Act 2012, Prevention of Crime Act 2013, Prevention of Terrorism Act, 2015. Lord Carlile (n 12) 11–15. Available at: www.unodc.org/tldb/showDocument.do?documentUid=8885&q= accessed 14 February 2015. Act 30 of 2012. Criminal Code of Canada RSC 1985, c C-34, s 83.01. Gul (n 13) [64-69]. See further D Anderson, Report on the Operation in 2013 of the Terrorism Act 2000 and Part I of the Terrorism Act 2006 (Home Office, London, 2014). 75

Kent Roach

Carlile’s conclusion that only prosecutorial discretion can protect freedom fighters because of ‘international commitments to zero tolerance of terrorism as a political tool’.36 The Canadian changes from the British law reflect the influence of Canada’s 1982 constitutional bill of rights enacted in part in response to the abuse of emergency powers when two separatist cells engaged in terrorism in October 1970.37 Canada’s constitutional commitment to respect multiculturalism38 may also explain why Canada qualified the requirement for proof of religious and political motive by providing an interpretative clause indicating that expressions of political or religious beliefs and opinion would not normally fall within the definition of terrorism.39 Although Australia followed the Canadian model in many respects, including the deletion of the requirement that strikes and protests must be lawful to be exempted from the definition of terrorism,40 it did not follow this Canadian innovation, which speaks to a particular sensitivity in Canada towards multiculturalism. Close and contextual study of changes made to migrating counter-terrorism laws provides an important window into differences among countries. The Canadian law was broader than the British definition in some respects. It made reference to the concept of economic security and expanded reference to electronic systems to all essential public or private services. These changes may reflect Canada’s concerns about the economic impact of false reports that the 9/11 hijackers had entered the US through Canada as well as concerns about anti-globalisation and indigenous protests. South Africa adopted these neo-liberal Canadian expansions into its Protection of Constitutional Democracy Act 2004 counter-terrorism law. Given the historical use of terrorism against the African National Congress (ANC) and South Africa’s constitutional law, the South African terrorism law is surprisingly broad and vague. At the same time, South Africa reflected its history by adding in section 1(4) a unique and broad exemption for freedom fighters: ‘any act committed during a struggle waged by peoples, including any action during an armed struggle, in the exercise or furtherance of their legitimate right to national liberation, self-determination and independence against colonialism, or occupation or aggression or domination by alien or foreign forces, in accordance with the principles of international law, especially international humanitarian law’.41 This is another reminder that changes in laws as they migrate may be indicative of important historical and political differences between countries.

Influence of Egyptian definitions of terrorism Just as the UK emerged as a net exporter of its definition of terrorism, Egypt has emerged as a superpower that exported its definition of terrorism to Arab states.42 The 1992 Egyptian definition applies to:

36 37

38 39 40 41 42

76

Lord Carlile, (n 12) para 78. The October Crisis and illegalities committed by the Royal Canadian Mounted Police (RCMP) eventually lead to a civilian intelligence agency taking over security intelligence functions from the RCMP. Canadian Charter of Rights and Freedoms, 1982, s 27. Criminal Code of Canada RSC 1985, c C-34, s 83.01 (1.1). Criminal Code s 100.1 (Aust). See K Roach, ‘A Comparison of South African and Canadian Anti-Terrorism Legislation’ (2005) 18 South African Journal of Criminal Justice 127. Lynn Welchman ‘Anti-Terrorism Law and Policy in Arab States’ inV Ramraj and others (eds) Global Anti-Terrorism Law and Policy (2nd edn, Cambridge University Press, Cambridge 2012).

The migration and derivation of counter-terrorism

all use of force, violence, threatening, or frightening, to which a felon resorts in execution of an individual or collective criminal scheme, with the aim of disturbing public order, or exposing the safety and security of society to danger, if this is liable to harm the persons, or throw horror among them, expose their life, freedom or security to danger, damage the environment, causes detriments to communications, transport, property and funds, buildings, public or private properties, occupying or taking possession of them, preventing or obstructing the work of public authorities, worship houses, or educational institutions, or interrupting the application of the constitution, laws, or statues.43 This is an extremely broad definition of terrorism that includes acts that have ‘the aim of disturbing public order’ or ‘exposing the safety and security of society to danger’. It also includes various forms of property damage and actions that obstruct public authorities and essential services. It includes obstructions of the constitution and a wide range of public and private actors including ‘public authorities’, ‘worship houses’ and ‘educational institutions’ as a form of terrorism. It is supplemented in Article 86bis by an even broader definition of terrorist groups that includes groups with the aims of ‘impairing national unity or social peace’.44 In 2003, the Ben Ali regime in Tunisia enacted a new terrorism law that featured a definition that borrowed the broad concept of ‘disturbing public order’ from the Egyptian law but added a post 9/11 twist of ‘disturbing international peace and security’.45 Like the Egyptian law, the Tunisian law protected a broad range of harms to property and infrastructure. The Tunisian law also drew a link between speech and terrorism that the UK, the UN Security Council and the European Council would only make some years later. Article 6 of the 2003 law provided that ‘acts of incitement to hatred or religious fanaticism shall also be dealt with as terrorist offences’.46 In 2004, the United Arab Emirates defined terrorism as the execution of crimes: individually or collectively, with intention to cause terror between people or terrifying them, if the same causes breach of the public order or endangering the safety and security of the society…or causes damage to environment, any of the public, private utilities or domain, occupying, seizing the same or exposing any of the natural resources to danger.47 This definition borrows vague references to ‘public order’ and endangering ‘the safety and security of society’ from the Egyptian definition. This law also provides broad offences relating to membership and support of terrorist organisations found in the Terrorism Act 2000. Like the 2003 Tunisian law, the 2004 UAE law also includes speech associated with terrorism by making it an offence to have written material ‘recommending a terrorist act’.48

43 44 45

46 47

48

Penal Code Article 86 as translated at www.unodc.org/tldb/showDocument.do?document Uid=2512&country=EGY accessed 14 February 2015. Penal Code Article 86bis as translated at: www.unodc.org/tldb/showDocument.do?document Uid=2512&country=EGY accessed 14 February 2015. Loi n° 2003-75 du 10 Décembre 2003 Contre le Terrorisme et le Blanchiment de l'Argent www.unodc.org/tldb/showDocument.do?lng=fr&documentUid=1836 accessed 14 February 2015. See Welchman (n 42) 648. Decree by Federal Law No 1 of 2004, Article 1. Available at: www.unodc.org/tldb/show Document.do?documentUid=6397&node=docs&cmd=add&country=UAE accessed 14 February 2015. Ibid Article 8. 77

Kent Roach

In 2004, Qatar defined terrorism following the Egyptian model by relying on the broad concepts of: breaching the public order or exposing the public safety and security to danger or damaging the national unity that results or could have resulted in injuring the public, or terrifying them, exposing their life, liberty or security to danger, harming the environment, public health, the national economy, public or private utilities, establishments, or properties, or seizure thereof or hindering their functions, or obstructing or hindering the public authorities from exercising their duties.49 The characterisation of damage to national unity as a terrorist purpose allows authorities to characterise peaceful separatism as terrorism. The equation of threats to national unity with terrorism is also found in the 2005 counterterrorism law of the reconstituted Iraq. The law defines terrorism as a: criminal act committed by an individual or an organised group targeting an individual, a group of individuals, communities, official or non-official organisations, causing damage to public or private property for the purpose of breaching the security situation, stability and national unity or of causing panic, fear and alarm among people or of causing chaos and disorder in order to attain terrorist ends.50 The broad definition of terrorism in the 2005 Iraqi terrorism law is particularly striking because it was used after the 2003 invasion to execute many people associated with Sunni terrorism. A 2004 Iraqi terrorism financing law employed a much more restrained general definition taken from the 1999 UN Convention on Terrorism Financing.51 The incoherence and inconsistency of the Iraqi approach is an important reminder that observers must be cautious about reading too much into differences in counter-terrorism laws. Although some differences may reflect legal, political and historical differences, others may simply reflect the influence of neo-colonial advisors and groups such as the Financial Action Task Force, which pressures states to enact counter-terrorism laws. Jordan enacted a temporary law in October 2001 that broadly defined terrorism with reference to concepts such as disturbing public order, infringing safety and security and spreading fear and frightening people, all found in the 1992 Egyptian definition.52 The 2001 law also regulated speech in the interest of ‘national unity’.53 A permanent 2006 Jordanian law retains but softens some of these qualities. It defines terrorism as intentional acts against persons, property or infrastructure intended to disturb public order, endanger public safety and security, cause suspension of the application of the provisions of the Constitution and laws, affect the policy of the State

49 50 51 52 53 78

Law No 3 of 2004 On Combatting Terrorism. Available at: www.unodc.org/tldb/show Document.do?documentUid=6338&country=QAT accessed 14 February 2015. Law on Combatting Terrorism, 2005, Article 1 Available at: www.unodc.org/tldb/show Document.do?documentUid=6740&country=IRQ accessed 14 February 2015. Anti-Money Laundering Law of 2004, Article 4.2 Available at: www.unodc.org/tldb/pdf/ Iraq/IRQ_AML_2004_EN.pdf accessed 14 February 2015. Provisional Act 2001, No 54. Welchman (n 42) 642–3.

The migration and derivation of counter-terrorism

or the government or force them to carry out an act or refrain from the same, or disturb national security by means of threat, intimidation or violence.54 The trend to broad definitions of terrorism that include damage to national unity and stress subjective notions of acts inspiring fear or terror is also seen in a 2006 law enacted by Bahrain.55 Terrorism is defined to include ‘disrupting public order’ and ‘threatening the Kingdom’s safety or security’ as well as the idea of: damaging national unity or security of the international community if this would result in harming persons, terrorizing and intimidating them and endangering their lives, freedoms or security or causing damage to the environment, public health, national economy or public utilities, facilities or properties or seizing them and obstructing the performance of their business activities, preventing or obstructing the government authorities, places of worship or academic institutions from carrying out their activities. The Penal Law for Crimes of Terrorism and its Financing 2014 in Saudi Arabia also employs the concepts of disturbing public order and endangering national unity.56 The metaphor of a chain novel captures some of the process as different Arab and Islamic countries started with the Egyptian definition of terrorism but subsequently expanded on that definition to include even broader concepts such as ‘damaging national unity’ and a broader range of prohibited acts.57 As always, the process of migration should be studied both across jurisdictions and over time. Egypt is seriously considering expanding its influential 1992 definition of terrorism to include actions aimed ‘at damaging national unity’; ‘hampering the work national institutions and damage the economy’ and ‘damaging communications, or information systems, or financial and banking systems, or the national economy’.58 Such an expansion in this influential jurisdiction has the potential to start another process of consolidating and expanding the reach of counterterrorism codes in the region. Another consideration in the migration of counter-terrorism law is the complicity of established western democracies in producing broad definitions of terrorism and increased investigative powers that when they migrate to different environments can have some very nasty consequences. Although not impossible, it becomes more difficult for western countries and human rights advocates to criticise laws in the developing world that are accepted in established democracies even though even similar laws change when they migrate to other legal, political and social systems.

54 55

56

57 58

Anti-Terrorism Law No 55 of 2006, Art 2. Available at: www.unodc.org/tldb/showDocument. do?documentUid=8459&country=JOR accessed 14 February 2015. Law 58 of 2006 with Respect to Protecting the Community Against Terrorist Act, Article 1. Available at: www.unodc.org/tldb/showDocument.do?documentUid=8520&country=BAH &pageNum=2 accessed 14 February 2015. Human Rights Watch, ‘Saudi Arabia: Terrorism Law Tramples Rights’. Available at: www.hrw.org/news/2014/02/06/saudi-arabia-terrorism-law-tramples-rights accessed 14 February 2015. Roach ‘Sources and Trends in Post 9/11 Anti-Terrorism Laws’ (n 8). As translated in Amnesty International, ‘Egyptian President must reject flawed anti-terrorism laws’ 11 April 2014. 79

Kent Roach

Influence of the European Union’s 2002 Framework Decision on terrorism The 2002 Framework Decision by the Council of the EU started a final and more formal example of the migration of a definition of terrorism. Article 1 provides that: Each Member State shall take the necessary measures to ensure that the intentional acts referred to below in points (a) to (i), as defined as offences under national law, which, given their nature or context, may seriously damage a country or an international organisation where committed with the aim of: – seriously intimidating a population, or – unduly compelling a Government or international organisation to perform or abstain from performing any act, or – seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organisation, shall be deemed to be terrorist offences: (a) attacks upon a person’s life which may cause death; (b) attacks upon the physical integrity of a person; (c) kidnapping or hostage taking; (d) causing extensive destruction to a Government or public facility, a transport system, an infrastructure facility, including an information system, a fixed platform located on the continental shelf, a public place or private property likely to endanger human life or result in major economic loss; (e) seizure of aircraft, ships or other means of public or goods transport; (f) manufacture, possession, acquisition, transport, supply or use of weapons, explosives or of nuclear, biological or chemical weapons, as well as research into, and development of biological and chemical weapons; (g) release of dangerous substances, or causing fires, floods or explosions the effect of which is to endanger human life; (h) interfering with or disrupting the supply of water, power or any other fundamental natural resource the effect of which is to endanger human life; (i) threatening to commit any of the acts listed in (a) to (h).59 This definition of terrorism is broad but in some respects is less broad than that found in the Terrorism Act 2000. The EU definition only protects governments and international organisations from being ‘unduly compelled’ as opposed to being ‘influenced’ as in the UK legislation. It also provided some recognition of the freedom to strike and to assemble and freedom fighters in an armed conflict, albeit only in its long preamble. It does not rely on proof of political or religious motive as a means to distinguish terrorism from other crimes. Property damage and damage to electronic systems must be of such a magnitude as to endanger human life or result in ‘major economic loss’.

59

80

Council Framework Decision of 13 June 2002 on combating terrorism (2002/475/JHA), as amended by Council Framework Decision 2008/919/JHA of 28 November 2008. See F Galli and A Weyembergh, EU Counter Terrorism Offences (Ed. de l’Universite de Bruxelles, Brussels 2012).

The migration and derivation of counter-terrorism

At the same time, the EU definition in some respects is broader than the UK definition. The EU Council did not have the same hesitancy as the UK in targeting crimes that disrupted a variety of essential services as terrorism. Cian Murphy has observed how this definition is broader than the general definition of terrorism in the 1999 Financing Convention. He also notes conflicts between the executive-dominated Council and the European Parliament over the definition. The Council was prepared to run the risk of targeting anti-globalisation protesters in its reference to ‘seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organisation’ while the European Parliament preferred a more rights-friendly reference to ‘the fundamental freedoms, democracy, respect for human rights, civil liberties and the rule of law on which our societies are based.’60 This raises interesting questions about the domination of law-making by expert executives both in the EU and in member states as opposed to law-making by elected representatives either in the European Parliament or the legislatures of member states. Elected members may be more likely to be concerned that some of their constituents that engage in protest could be treated as terrorists while executives may be more attentive to the concerns of security officials. Member states were obliged to report their progress on implementation by the end of 2002, but only two had implemented the legislation by that time. A 2007 report reveals more compliance, but also quite a bit of non compliance and singled out: The deficient implementation of Article 1 in Germany, Italy, Lithuania, Luxembourg, Poland, Slovenia and the UK. This provision is of crucial importance not only for the Framework Decision but for counter-terrorism policy in general. A common definition of terrorism constitutes the basis on which all other provisions in the Framework Decision are built and allows for the use of law enforcement co-operation instruments.61 This means that ‘merely half of EU residents are subject to a criminal law that defines terrorism in accordance with the framework decision.’62 The low form of compliance may suggest that the EU’s hierarchical vision of requiring member states to transpose or copy draft framework laws is not realistic given political and cultural differences among member states and their different experiences of and reactions to terrorism. One recent study of EU counter-terrorism policy repeatedly criticises states that do not transpose and copy laws as ‘laggards’; in doing so, the study ignores the implications of an interview with one Council official who admitted that ‘even the Danes or the Swedes never implemented the participation in a terrorist organisation because they don’t use the concept’ because guilt of the basis of membership ‘is an awkward concept for their legal system’.63 Although a failure to transpose slavishly the Framework Decision seems to be considered as something of a drafting error by some European commentators, it is much more common when observed in the light of the way that Commonwealth or Arab countries have borrowed from, and added to, the basic definitions of terrorism found in British and Egyptian law. Additions and subtractions from a base definition may be seen as expressions of national sovereignty

60 61

62 63

CC Murphy, EU Counter-Terrorism Law (Hart Publishing, Oxford, 2012) 58. Report from the Commission based on Art 11 of the Council Framework Decision of 13 June 2002 (COM) 2007 681 final at 10. Available at: http://eur-lex.europa.eu/legal-content/ EN/TXT/PDF/?uri=CELEX:52007DC0681&from=EN accessed 14 February 2015. Murphy (n 60) 60. J Argomaniz, The EU and Counter-Terrorism (Routledge, London, 2011) 131. 81

Kent Roach

or at least something that is entitled to some degree of deference and acceptance. Given the recent and influential impact of the 2000 British definition of terrorism and its broad similarity with the 2002 Framework decision, it seems unrealistic to have expected the UK to amend its laws to comply with the Framework Decision.64 Germany was one of the non-compliant countries. Germany can be criticised and dismissed as a ‘laggard’, but it is more helpful to examine whether it drew on its distinct legal system and history in defining terrorism. In any event, Germany’s non-compliance seems relatively minor as the relevant provisions of the German Penal Code refer to a variety of predicate offences and then more or less faithfully follow the Framework Decision.’65 The differences with the 2002 Framework decision seem to be minor and cosmetic. The same can be said for a 2005 Italian law, which also follows the Framework Decision quite closely, while including other conduct prohibited by international conventions, which are binding on Italy.66 There is considerable evidence of convergence even in those jurisdictions that are labelled by EU authorities to be deficient and non-compliant. This raises the danger that EU directives may inhibit the type of expression of small differences seen in countries that have used either British or Egyptian definitions of terrorism as templates. The expression of even small differences may be legitimate reflections of local experiences, democratic debate and legal cultures including domestic constitutional norms. The EU experience also raises questions about whether the definition of terrorism imposed in the Framework Decision can be subject to meaningful democratic debate before being transposed into the laws of member states. Countries like Canada were free to make their own changes from its starting point of the broad definition of terrorism in the Terrorism Act 2000. There was extensive democratic debate in Canada about even small changes in the wording of the definition of terrorism and a broad range of civil society groups and Parliamentarians participated in these debates. By contrast, in many cases in the EU, the starting point of the Framework Decision was also the end point and there seemed little point in debating what was imposed on member states by the EU Council. There are some examples of substantive non-compliance in the EU. Poland faithfully reproduces the requirements of serious intimidation and compulsion of governments and international organisations but adds, as a terrorist intent, the intent to ‘cause serious disturbance to the constitutional system or to the economy of the Republic of Poland…’67 The inclusion

64 65 66

67

82

Minor changes were made in 2006 in including references to international organisations that made the UK definition a bit more compliant with the EU directives. German Penal Code article 129A. Available at: www.unodc.org/tldb/showDocument. do?documentUid=943&node=docs&cmd=add&country=GER accessed 14 February 2015. By Legge 31 luglio 2005, n 155, Article 270 sexies of the Italian Penal Code defines terrorist purposes as ‘those conducts which, due to their nature or context, can cause considerable damage to a Country or international organisation and are committed in order to intimidate the population and force public authorities or an international organisation to perform or restrain from performing any deed or destabilise or destroy the fundamental political, constitutional, economic and social structures of a Country or international organisation, as well as the other conducts defined as terrorist or committed for the purpose of terrorism by conventions or other international law provisions which are binding on Italy.’ As translated at: www.unodc.org/tldb/showDocument.do?document Uid=8863&q accessed 14 February 2015. Polish Penal Code, Article 115 s 20. Available at: www.unodc.org/tldb/showDocument.do? documentUid=7424&q=economy&edit_btn=SEARCH accessed 14 February 2015.

The migration and derivation of counter-terrorism

of harm to the economy as one of the prohibited harms or aims of terrorism is debatable, but it is a choice that a number of other countries including Canada and South Africa have made. It would seem that Poland’s democratic choice on its definition of terrorism should be entitled to some respect. The EU Framework Decision approach seems particularly inapt for imposing something as debatable as a definition of terrorism. At the same time, there is some evidence that the 2002 Framework Decision influenced some states outside of the EU that made more voluntary decisions whether to borrow from it. For example, Article 2 of Gambia’s 2002 Anti-Terrorism law, Article 4 of Tanzania’s 2002 Prevention of Terrorism Act and Article 3 of Ethiopia’s 2009 Anti-Terrorism Proclamation all make reference to the EU Council’s concept that terrorism destabilises or destroys ‘the fundamental political, constitutional, economic or social structures’ of a country while also borrowing to varying degrees from the UK’s Terrorism Act 2000.68 A less-elegant version of a similar idea is contained in Article 52 of Zimbabwe’s 1960 Law and Order Act,69 which defines terrorism in terms of acts seeking ‘political aims’ including seeking ‘social and economic change’. British colonial emergency laws inspired the Zimbabwe law. Again this reminds us how concepts approved by established democracies may migrate to other lands and have very different effects in those countries.

Conclusion It is impossible in this relatively short chapter to do justice to the full subject of the migration and derivation of counter-terrorism codes, but it is clear that this is a fruitful and largely neglected field of inquiry. The derivation of counter-terrorism codes is a particularly neglected subject and may help reveal trends in counter-terrorism laws and a process through which countries can launder and legitimate repressive laws and practices by adopting laws taken from established democracies. There is a need to be as attentive to migration over time as well as migration between and within jurisdictions. There is a need to understand how broad security concepts have been modernised and often legitimised in more modern terrorism laws. British colonial emergency laws were often quite blunt in revealing their interests in ensuring the incapacitation of those who would interfere with the delivery of essential services. The Terrorism Act 2000, otherwise not known for its restraint, only includes serious interferences and disruptions of ‘electronic services’. Nevertheless in the post 9/11 laws of many jurisdictions this concept was expanded to include the protection of all ‘essential services’. To be sure, a reference to essential services means one thing in a Canadian or Australian counter-terrorism law and quite another when included in 2003 amendments to Malaysian criminal law. That said, closer study of the derivation of counter-terrorism codes could reveal much about their underlying values. This chapter has indicated how British and Egyptian definitions of terrorism have been quite influential, but more work remains to be carried out to explain the mechanisms of

68

69

Anti-Terrorism Act 2002 (Gambia). Available at: www.unodc.org/tldb/showDocument. do?documentUid=2489&q accessed 14 February 2015 (Tanzania) Prevention of Terrorism Act 2002, available at: www.unodc.org/tldb/showDocument.do?documentUid=2588&q= accessed 14 February 2015; (Ethiopia) Anti-Terrorism Ordinance 2009, www.refworld.org/publisher, NATLEGBOD,,,4ba799d32,0.html accessed 14 February 2015. Law and Order (Maintenance Act) 1960, Art 52. Available at: www.unodc.org/tldb/browse_ country.html?country=ZIM&cmd=add&node=docs accessed 14 February 2015. 83

Kent Roach

influence. The more hierarchical process used by the EU Council’s 2002 Framework Decision underlines the degree of agency that countries influenced by the British or Egyptian definitions had to modify them. In Canada, there was important democratic debate, including amendments after the terrorism bill was introduced, about the proper definition of terrorism. Similar debates and even minor expressions of differences by countries such as the UK, Germany, Poland and Italy are, however, seen as aberrant under the EU’s Framework Decision approach. Commentators should be attentive to even subtle changes in laws as they migrate and not dismiss such changes as a failure to engage in ‘harmonisation’ or ‘correct transposition’ of a model law. Even minor changes in a migrating law may reflect political, social, historical and legal differences between the influencing and receiving jurisdiction. It may also be a product of democratic debate. Minor differences in migrating counter-terrorism laws provide a window into the degree that local circumstances influence counter-terrorism law. Although there are frequent demands for convergence in counter-terrorism law to facilitate increased law enforcement and intelligence cooperation, counter-terrorism law remains an important site for domestic politics and sovereignty. Conversely, uncritical borrowing of other country’s counter-terrorism codes would also beg the question of whether a state is truly committed to a law that they have borrowed from elsewhere. Finally, the Pakistan and Malaysia examples of borrowing from the definition of terrorism in the Terrorism Act 2000 should serve as a sobering reminder of how even strikingly similar laws will change as they migrate into a different legal, political and social context.

84

6 The interaction of terrorism laws with human rights Federico Fabbrini

Introduction Terrorism, and the responses to it, have represented during the last decade one of the most significant challenges to the protection of the fundamental rights entrenched in national constitutions and international human rights treaties. Terrorist attacks across the globe – from New York, to London, Madrid, and Bali – have produced death and destruction, undermining fundamental values of peaceful co-existence, and shattering citizens’ expectations of security. Yet, since 9/11, national governments, international organisations, and supranational institutions have responded to these threats with a panoply of counter-terrorism measures that themselves have threatened the protection of core fundamental rights. Taking stock of more than a decade of political action and legal deliberation on the balance between liberty and security, this chapter maps the interaction between terrorism laws and human rights. Consistent with the nature of this book, this chapter offers a summary of the main legal and policy instruments developed to fight global terrorism, discusses its impact on procedural and substantive fundamental rights, and considers in a comparative perspective some of the most remarkable failures and successes of jurisdictions world-wide in correcting the excesses of counter-terrorism and re-establishing respect for fundamental rights even in the struggle against terrorism. Specific aspects are analysed more fully elsewhere in this book. As the chapter makes clear, counter-terrorism measures enacted by executives and legislatures have interacted with human rights in multiple ways. At the same time, courts have increasingly been involved in the oversight of counter-terrorism laws and policies, sometimes operating as an effective bulwark of protection against governments’ overreach. Yet, a number of challenges remain. As this chapter suggests, although the struggle against terrorism may be winding down, the interaction between counter-terrorism laws and human rights will continue to characterise constitutional law and practice for years to come. The chapter is structured as follows. Section 2 surveys the main laws and policies adopted in the fight against terrorism, distinguishing between preventive and responsive measures, and discussing their features. Section 3 evaluates the impact of counter-terrorism laws on human rights, considering both procedural and substantive provisions of national constitutions and international human rights treaties. Section 4 explains what limitations have reduced the capacity of courts to effectively protect human rights in the post-9/11 world. Section 5, instead, considers in comparative perspective a number 85

Federico Fabbrini

of courts’ successes in restoring an appropriate balance between liberty and security in the fights against terrorism. Section 6 concludes and outlines the outstanding challenges for the future.

Counter-terrorism laws and policies The rise of terrorist attacks world-wide and the perceived inadequacies of pre-existing national security frameworks in fighting a cross-border phenomenon have pushed governments to adopt a sweeping set of legal and policy measures to tackle the terrorist threat. Counter-terrorism laws and policies have been designed at the national level: in the US and the UK, in particular, governments and legislatures have responded to the terrorist attacks that occurred on their domestic soil with new executive measures and legislation strengthening national security.1 However, the global dimension of contemporary terrorism has increasingly pushed national governments to develop a framework to fight terrorism at the international level – notably within the arena of the UN.2 Moreover, in the context of regional organisations such as the EU, the threat of terrorism has prompted the creation of new instruments to prevent and disrupt terrorism at the supranational level.3 And – as Kim Lane Scheppele has explained in detail – international and regional organisations have systematically promoted the enactment of new counter-terrorism measures at the state level, fostering a complex process of transnational migration of national security models across the globe.4 Although extensive literature has examined in detail the features of the counter-terrorism laws and policies enacted since 9/11, for the purpose of this contribution it suffices to summarise the key areas of intervention by national governments and international organisations.5 Policy-makers at various levels of governments have sought to respond to the cross-border threat posed by global terrorism through a multi-pronged strategy. On the one hand, national governments and international organisations have strengthened preventive mechanisms to fight terrorism, by adopting legal instruments designed to reduce ex ante the financial capacity of terrorist networks to carry out their attacks, and by expanding the surveillance powers of intelligence agencies to anticipate possible threats.6 On the other hand, political branches have developed new responsive mechanisms, tackling national security threats ex post with new tools, such as the authority to detain suspected terrorists and the development of new techniques of interrogation of terrorist suspects – not to mention, at its extreme, the exercise of force under the law of war to respond in military terms to terrorist threats abroad, including through preventive strikes and targeted killings.7 1

2 3 4

5

6 7

86

See D Cole and J Dempsey, Terrorism and the Constitution (The New Press, New York, 2002) (on the US) and C Walker, Terrorism and the Law (Oxford University Press, Oxford, 2011) (on the UK in comparative perspective). See E de Wet, The Chapter VII Powers of the United Nations Security Council (Hart Publishing, Oxford, 2004). See C Murphy, EU Counter-Terrorism Law: Pre-emption and the Rule of Law (Hart Publishing, Oxford, 2012). KL Scheppele, ‘The Migration of the anti-constitutional ideas’ in S Choudhry (ed.), The Migration of Constitutional Ideas (Cambridge University Press, Cambridge, 2006) 347. See also Chapter 5 (Roach) in this book. See K Roach, The 9/11 Effect: Comparative Counter-Terrorism (Cambridge University Press, Cambridge, 2011); V Ramraj, M Hor and K Roach (eds), Global Counter-Terrorism Law and Policy (2nd ed, Cambridge University Press, Cambridge, 2012). See also Chapters 3 (Llobet-Anglí and Masferrer) and 26 (Razak, Rehman and Skolcyzylis) in this book. See also Chapters 4 (Blank), 11 (Valdeck and Walker), 14 (Ni Aolain and Gross), and 15 (Kremnizer and Saba) in this book.

The interaction of terrorism laws with human rights

A first key area of legal development in the fight against terrorism has been the adoption of measures preventing terrorism financing. On the understanding that the perpetration of acts of terrorism – especially of the scale of 9/11 – required significant amount of financial resources, national governments have adopted legislation to freeze the bank accounts of individuals suspected of financing terrorism. In the US, in particular, the Office of Foreign Assets Control within the Treasury Department has been entrusted with the task to manage a list of natural and legal persons suspected of financing terrorism:8 once designated as a global terrorist, the person’s assets in the US are subject to an administrative freeze.9 Yet, the fight against terrorism financing has also become one of the top priorities of the UN. Besides the promotion of an International Convention for the Suppression of Terrorism Financing,10 the UN Security Council has established an Auxiliary Committee empowered to draw up a blacklist of individuals and entities suspected of financing terrorism based on the information received by the intelligence agencies of the member states.11 UN member states have then been required to implement domestically the decision of the UN Auxiliary Committee, by freezing all bank accounts of blacklisted persons.12 And in the context of the EU, member states have decided to give effect to UN resolutions in the field through supranational regulations.13 A second area in which counter-terrorism law and policy has expanded since 9/11 has been that of surveillance. Given the failure of national security agencies to anticipate the occurrence of major terrorist attacks in the US, the EU, and elsewhere, executive measures and legislation have increased the surveillance powers of intelligence agencies – often in ways that did not became evident until years afterwards. In the US, for instance, a secret presidential order in early 2002 granted to the National Security Agency (NSA) extensive authority to monitor internet and telephone communications, not only between non-US persons overseas, as had been the case since the 1978 Foreign Intelligence Surveillance Act,14 but also within the US.15 Moreover, the USA PATRIOT Act 2001 vested in the NSA new powers to intercept electronic communications, and to request without court approval that telecommunications providers hand over information to intelligence and law enforcement authorities.16 Similarly, the EU’s Data Retention Directive of 2006 introduced an obligation for telecommunication providers to retain for at least two years the meta-data – although not the data – of telephone calls, email messages, and text messages, and to make them available to national security agencies.17 In India, otherwise, sweeping surveillance powers have been granted to intelligence agencies.18

8 9 10 11 12 13 14 15 16 17 18

See Executive Order 13,224, 3 CFR 785 (2001). See NN Petersen, ‘Justice for the “Designated”: The Process that is due to alleged U.S. financiers of terrorism’ (2005) 93 Georgetown Law Journal 1387. 2178 UNTS 197 (1999). See S/RES/1267 (1999) (creating the Auxiliary Committee); S/RES/1390 (2002) (expanding the listing power of the Auxiliary Committee). See E Rosand,‘The Security Council’s efforts to monitor the implementation of Al Qaeda/Taliban Sanctions’ (2004) 98 American Journal of International Law 745. See eg Council Regulation 881/2002/EC OJ 2002 L 139/09 (giving effect to UN resolutions). See further Chapter 16 (Sproat) in this book. Pub.L. 95–511 (1978) See S Matheson, Presidential Constitutionalism in Perilous Times (Harvard University Press, Cambridge, 2008) 108. Pub.L. 113–99 (2001) s 215. 2006/24/EC OJ 2006 L 105/54, art 3. But see infra text accompanying n 103. See U Singh, ‘Surveillance Regimes in India’ in F Davis, N McGarrity and G Williams (eds), Surveillance, Counter-Terrorism and Comparative Constitutionalism (Routledge, Abingdon, 2013) 42. See further Chapters 9 (McKay and Moran) and 10 (Macdonald) in this book. 87

Federico Fabbrini

Moving to the responsive side of counter-terrorism law and policy, a third major development in the fight against terrorism post-9/11 has been the creation of a new system of detention of suspected terrorists. The US government, in particular, asserted its power to detain in the military prison of Guantánamo Bay, Cuba, the suspected terrorists it captured first in the war theatres of Afghanistan and Iraq, and later world-wide.19 Based on a strong claim of executive supremacy, supported by wide grant of authority by Congress through the Authorization for the Use of Military Force,20 the US government detained as enemy aliens over 700 individuals suspected of being connected to global terrorism. Furthermore, endorsing a war-like approach to the fight against terrorism, the US government asserted its right to try these individuals through military tribunals, rather than civilian courts.21 Yet it refused to apply the rules of international humanitarian law, which govern detention and trial of enemies under the law of war – de facto creating a legal black hole.22 Although the action of the US government was the most far reaching, new policies restrictive of personal liberty were developed also elsewhere. Notably, in the UK,23 and other Commonwealth countries such as Canada24 and Australia,25 control orders allowed the government to subject individuals suspected of involvement with terrorism to special conditions of physical restraints, without the need to sustain criminal proceedings against them. Finally, a fourth area in which policy responses to terrorism have produced relevant changes has been the interrogation of suspected terrorists. Often framed under the dramatic image of the ‘ticking bomb scenario’,26 new policies set up mechanisms of interrogation bordering on the use of torture also in well-established western democracies. At its extreme, in a now infamous example, in the US, secret documents framed by the Office of the Legal Counsel of the US President authorised the Central Intelligence Agency (CIA) to adopt enhanced interrogation techniques, aimed at extracting information from terrorist suspects.27 Yet, the taint of torture has expanded well beyond the US. Pursuant to a programme known as extraordinary rendition, the CIA has secretly transferred suspected terrorists into third countries, including a number of member states of the EU, to subject them to enhanced interrogation, outside any international framework for extradition.28 Information obtained through torture by these and other means has then been at the centre of a complex process of transnational exchange between intelligence agencies.29 19 20 21 22 23 24 25 26 27 28

29

88

See for a legal rationalisation J Yoo, The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11 (University of Chicago Press, Chicago, 2005). PubL 107–40 (2001). See Order of the Deputy Secretary of Defense Establishing Combatant Status Review Tribunal, 7 July 2004. See famously J Steyn,‘Guantanamo Bay: the legal black hole’ (2004) 53 International and Comparative Law Quarterly 1. See Prevention of Terrorism Act 2005 (UK), now replaced by the Terrorism Prevention and Investigation Measures Act 2011 (UK). See C Bell, ‘Subject to exception: security certificates, national security and Canada’s role in the “War on Terror”’ (2006) 21 Canadian Journal of Law & Society 63. See Anti-Terrorism Act (No 2), 2005 (Australia). See A Dershowitz, ‘The torture warrant’ (2004) 48 New York Law School Law Review 275. See generally D Cole, The Torture Memos: Rationalizing the Unthinkable (The New Press, New York, 2009). See the reports of the Parliamentary Assembly of the Council of Europe: Alleged Secret Detentions in Council of Europe Member States (AS/Jur (2006) 03, 22 January 2006) and Secret Detentions and Illegal Transfers of Detainees Involving Council of Europe Member States (AS/Jur (2007) 36, 7 June 2007). See Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar: Report of the Events Relating to Maher Arar: Analysis and Recommendations (Public Works and Government Services, Ottawa, 2006).

The interaction of terrorism laws with human rights

Impact on human rights The development of a new legal framework for the fight against terrorism, briefly described in the previous section, has had a profound impact on the protection of human rights. Although in a number of illiberal states the threat of global terrorism has been used just as an excuse to tighten pre-existing measures restricting individual rights and liberties, also in western democracies the enactment of counter-terrorism laws and policies has produced major constitutional challenges. The protection of fundamental rights, constitutes a defining feature of state constitutions – binding the action of executive and legislative branches at the national level.30 Moreover, a growing body of international human rights law constrains the action of states, and subjects their behaviour to compliance with international treaties.31 In the framework of the EU, in particular, supranational charters act as an additional level of protection of human rights, and empower special courts to review member states’ laws and policies.32 State constitutions, international treaties, and supranational charters enshrine a long list of fundamental rights. As explained by Martin Scheinin in his capacity of UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, post-9/11 laws and policies have significantly impacted on both substantive and procedural rights.33 To begin with, counter-terrorism laws and policies have had a direct effect on the protection of the right to liberty. Whereas terrorist attacks certainly threatened citizens’ right to security, several of the responses to terrorism designed by national governments and international organisations have challenged the principle that governments cannot restrict individual freedom, except on the basis of the law, for the commission of specific facts, and in execution of the decision of a court (or pending the decision thereof).34 This principle, which is rooted in the tradition of western constitutionalism since Magna Carta, finds recognition in Article 1, Section 9, clause 2 of the US Constitution (prohibiting Congress from suspending the writ of habeas corpus, save when in case or rebellion or invasion, the public safety may require it), and is now codified in Article 5 of the ECHR,35 which affirms that ‘everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in [specific] cases and in accordance with a procedure prescribed by law.’ In particular, the policies of administrative detention of enemy aliens in the legal black hole of Guantánamo have raised concerns for their compatibility with the right to habeas corpus.36 Similarly, the system of administrative detention in the UK has affected the Article 5 ECHR rights of individuals suspected of being involved in terrorism but never subject to a criminal process.37

30

31 32 33 34 35 36 37

See L Fisher, The Constitution and 9/11 (Kansas University Press, Lawrence, 2008) (on the US); A Kavanagh, ‘Constitutionalism, counterterrorism and the courts’ (2011) 9 International Journal of Constitutional Law 17 (on constitutional protections in the UK). See M Scheinin, ‘Counter-Terrorism and Human Rights’ in S Sheeran and N Rodley (eds), Handbook of International Human Rights Law (Routledge, Abingdon, 2013) 581. See F Fabbrini, Fundamental Rights in Europe (Oxford University Press, Oxford, 2014). See the reports of the UN Special Rapporteur to the UN Human Rights Council. Available at: www2.ohchr.org/english/issues/terrorism/rapporteur/reports.htm accessed 24 June 2014. See generally A Sajó, Limiting Government:An Introduction to Constitutionalism (CEU Press, Budapest, 1999). 1950 ETS 5. See F Ni Aolain and O Gross (eds), Guantanamo and Beyond: Exceptional Courts and Military Commission in Comparative Perspective (Cambridge University Press, Cambridge, 2013). See A et al. v Secretary of State for the Home Department [2004] UKHL 56 (holding indefinite administrative detention in violation of Article 5 ECHR). 89

Federico Fabbrini

Furthermore, counter-terrorism policies have raised an unprecedented challenge to the prohibition of torture. This principle, which is at the heart of the tradition of constitutionalism, is recognised both in national constitutions and in international treaties. Pursuant to Article 15 ECHR, the prohibition of torture and inhumane and degrading treatments enshrined in Article 3 ECHR is a non-derogable provision, meaning that even in states of war or public emergencies threatening the life of the nation, contracting parties may not derogate from it.38 Moreover, almost all states of the international community are parties to the UN Convention Against Torture,39 which prohibits tout court resort to inhumane treatment. In fact, the prohibition of torture is without dispute part of jus cogens, the hard core of principles of international law that cannot be set aside by states even via the adoption of treaty law.40 Despite the importance of the prohibition of torture under constitutional and international human rights law, a number of policies, especially in the field of interrogation, have undermined this core value. Enhanced interrogation techniques, as well as the practice of extraordinary rendition to torture, represent well-known slides into this direction.41 Counter-terrorism laws and policies have next affected the right to privacy. This right, which has been developed in the second half of the twentieth century through the case law of national supreme and constitutional courts – witness the US Supreme Court decision in Katz,42 holding that the Fourth Amendment of the US Constitution (prohibiting unreasonable searches and seizures) protects a reasonable expectation of privacy – is regarded as particularly relevant in the contemporary digital age. As such, it is explicitly protected in the EU Charter of Fundamental Rights recently adopted in 2001,43 which enshrines both a right to privacy and a right to the protection of personal data. In the field of surveillance, in particular, new mechanisms to intercept and monitor communications, as well as new legislation requiring the retention of personal data, have called into question individuals’ right to privacy in electronic communications.44 At the same time, revelations of vast programmes of warrantless government surveillance have raised worries about respect for the right to protection of personal data.45 Moreover, counter-terrorism policies have impacted on the right to family life, which under Article 8 ECHR is protected jointly with privacy. Freezing measures adopted to prevent the financing of terrorism, in particular, have reduced the capacity of targeted individuals to enjoy normal interaction with family members.46

38

39 40 41

42 43 44 45

46

90

See M Scheinin, ‘Epilogue: Human Rights and Counter-Terrorism: Lessons from a Long Decade’ in D Jenkins, A Jacobssen and A Heriksen (eds), The Long Decade: How 9/11 Changed the Law (Oxford University Press, Oxford, 2014) 289. 1465 UNTS 85. See E De Wet,‘The prohibition of torture as an international norm of jus cogens and its implications for national and customary law’ (2004) 15 European Journal of International Law 96. See Association of the Bar of the City of NewYork & Center for Human Rights and Global Justice, ‘Torture by Proxy: International and Domestic Law Applicable to ‘Extraordinary Renditions’ (ABCNY & NYU School of Law, New York, 2004). Katz v United States, 389 US 347 (1967). OJ 2007 C 303/17. See e.g. D Cole,‘Preserving privacy in a digital age’ in F Davis, N McGarrity and G Williams (eds), Surveillance, Counter-Terrorism and Comparative Constitutionalism (Routledge, Abingdon, 2013) 95. See M Tzanou, ‘The EU as an emerging “Surveillance Society”’ (2010) 4 Journal of International Constitutional Law 407; and F Fabbrini (ed.), Special Issue: ‘Privacy & National Security in the Digital Era’ (2015) 20 Tilburg Law Review 5. See e.g. Nada v Switzerland, App No 10593/08, 12 September 2012 (GC) (2013) 56 EHRR 18 (emphasising impact of freezing measures on the capacity of black-listed persons to enjoy the right of family life).

The interaction of terrorism laws with human rights

Moreover, other rights profoundly affected by counter-terrorism legislation have been the rights to property, free speech, and association. These civil rights are well entrenched in national constitutions, and they feature prominently in international human rights treaties, including the UN International Covenant on Civil and Political Rights of 1966.47 The measures designed to prevent terrorism financing directly impact on the right to property.48 At the same time, widespread surveillance of electronic communications arguably affect the right to association, potentially chilling free speech and the capacity of individuals to organise dissent.49 Next, a significant threat associated with most of the legal and policy measures adopted to fight counter-terrorism has been to undermine the principle of equality or non-discrimination, particularly on the basis of race or religious orientation. Given the Islamic ideology underpinning much of the post-9/11 terrorist phenomenon, Muslim communities have protested about being the target of more invasive oversight measures, especially so far as surveillance and interrogation policies are concerned.50 Nevertheless, counter-terrorism laws and policies have had a strong impact also on the protection of procedural rights, notably the right to due process and, related to this, the right of access to courts. In the tradition of constitutionalism, no governmental authority is allowed to restrict individual liberty or property without due process of law.51 As codified in the Fifth and Fourteenth Amendments to the US Constitution, as well as in Article 6 ECHR, the idea of due process implies that an individual subject to restrictive measures must receive information about the reasons justifying the measures being taken, access an independent institution to obtain redress, and receive fair and just proceedings by which claims can be impartially heard and adjudicated. Many of the policies devised to fight international terrorism have done away with these requirements. Freezing of assets of suspected terrorists have been carried out both domestically, and by the UN Security Council, without providing substantive information to suspected persons or granting them a right to be heard.52 The detention of suspected terrorists in Guantánamo escaped for a long time any judicial oversight.53 Similarly, control orders have sometimes been imposed without sufficient disclosure to protect the due process rights of the suspect.54

47 48 49

50 51 52 53 54

999 UNTS 171. See I Cameron,‘UN targeted sanctions, legal safeguards and the European Convention on Human Rights’ (2003) 72 Nordic Journal of International Law 159. See US v Jones, 565 US (2012) (J Sotomayor concurring) at 4 [slip opinion] (stating that surveillance ‘by making available at a relative low cost such a substantial quantum of intimate information about any person whom the Government in its unfettered discretion, choses to track – may alter the relationship between citizen and government in a way that is inimical to democratic society’ (internal citations omitted)). See generally D Cole, Enemy Aliens (The New Press, New York, 2004). See J Orth, Due Process of Law (University Press of Kansas, Lawrence, 2003). See B Fassbender,‘Targeted sanctions imposed by the UN Security Council and due process rights’ (2006) 13 International Organizations Law Review 437. See N Katyal and L Tribe,‘Waging war, deciding guilt: trying the military tribunals’ (2002) 111 Yale Law Journal 1259. See A Lynch, T Tulich and R Welsh, ‘Secrecy and control orders’ in D Cole, F Fabbrini and A Vedaschi (eds), Secrecy, National Security and the Vindication of Constitutional Law (Edward Elgar, Cheltenham, 2013) 154. 91

Federico Fabbrini

Judicial attempts to restore human rights: Failures Given the profound impact of national, international, and transnational counter-terrorism laws and policies upon human rights, it is not surprising that since 9/11 multiple challenges have been brought before the courts to restore the protection of core fundamental liberties. In constitutional systems, courts operate as key institutions for the protection of human rights, especially when they are empowered (as is the case almost everywhere nowadays) to review action of the executive and legislative branches of government for compliance with the rights enshrined in the basic law.55 Needless to say, this is not to deny the importance of legislative institutions in ensuring promotion and respect for human rights.56 In a number of instances, in fact, legislatures have acted as a curb on executive excesses – witness the Detainee Treatment Act of 2005,57 with which the US Congress prohibited the use of torture vis-à-vis detainees, or the recent resolution of the EU Parliament to block surveillance of electronic communications by intelligence agencies.58 Nevertheless, it is clear that institutional rules and political incentives may often weaken the ability of legislatures to act as effective checks on executives in the field of national security. On the one hand, in parliamentary systems a relation of confidence binds legislatures to the government. This implies that only the opposition – but not the majority – in Parliament may have an interest in keeping the government in check. Yet the opposition has by definition only limited capacity to block action by the government.59 Otherwise, the same dynamic often occurs even in separation-of-powers systems. Although here the legislature and the executive are constitutionally separated and have an institutional incentive to check and balance each other, when both institutions belong to the same political party the motivations for the legislature to control action of the executive are dramatically reduced.60 All in all, this results in weaker legislative oversight on the action of the executive branch. On the other hand, political pressures, especially in times of emergency, push legislatures to be tough on terrorism.61 In this way, members of the legislatures can defend themselves in the electoral game from the accusation of being insensitive to the security concerns of their constituents. Yet, this stance favours overreaction and implies once again a reduced capacity on the part of the legislative branch to curb the excesses of the executive branch in fighting terrorism.

55

56

57 58 59

60 61 92

On the spread of judicial review world-wide see A Stone Sweet, ‘Constitutional Courts’ in M Rosenfeld and A Sajó (eds), The Oxford Handbook of Comparative Constitutional Law (Oxford University Press, Oxford, 2012) 816. See F de Londras and F Davis, ‘Controlling the executive in times of terrorism’ (2010) 30 Oxford Journal of Legal Studies 19; A Horne and C Walker, ‘Lessons learned from political constitutionalism?’ [2014] Public Law 267. Pub.L. 109–148 (2005). European Parliament, LIBE Committee Report, 8 January 2014, 2013/2188 (INI). See A Tomkins, ‘Parliament, human rights and counter-terrorism’ in T Campbell, K Ewing and T Tomkins (eds), The Legal Protection of Human Rights: Sceptical Essays (Oxford University Press, Oxford, 2011) 13. See further also Chapter 8 (Dickson) in this book. See D Levinson and R Pildes, ‘Separation of parties, not powers’ (2006) 119 Harvard Law Review 2311. See S Setty, ‘National security interest convergence’ (2012) 4 Harvard National Security Journal 185.

The interaction of terrorism laws with human rights

In this context, it seems clear that courts would be in constitutional terms the institutions best placed to moderate the excesses of executives and legislatures in responding to terrorism. As Miguel Maduro put it in his capacity as Advocate General before the ECJ, ‘especially in matters of public security, the political process is liable to become overly responsive to immediate popular concern, leading the authorities to allay the anxiety of the many at the expenses of the rights of the few. This is precisely when courts ought to get involved.’62 At all levels of government, therefore, courts have been asked to adjudicate cases involving alleged human rights violations that occurred in response to terrorism. Yet courts have not always been that successful in reviewing action by the political branches and restoring a proper balance between the need to protect national security and the duty to respect human rights.63 Leaving aside questions of procedure (how courts can be activated?) and of time (when a case can reach a court?), a number of factors have weakened the capacity of the judiciary to restore the protection of human rights. First, jurisdictional rules have sometimes prevented courts from stepping in and adjudicating upon alleged human rights violations connected to the fight against terrorism. In some cases the jurisdiction of the courts has been reduced on purpose, to make sure they could not take up possible cases or controversies. In other cases, ordinary rules on jurisdictional reach have limited judicial oversight. For instance, the US Military Commission Act 2006 excluded the jurisdiction of federal courts from hearing habeas corpus petitions initiated by enemy aliens detained in the military prison of Guantánamo.64 Although this Act was subsequently declared unconstitutional,65 it prevented for some time federal courts from hearing plaints from Guantánamo detainees. Moreover, even when the limitations of federal courts’ oversight of Guantánamo were set aside, basic concerns about the scope of jurisdictional reach into the territory of other states made US federal courts refrain from adjudicating habeas corpus petitions brought by individuals detained in Afghanistan.66 In a similar vein, the ECJ could not review action by the UN Security Council – or ask it to present evidence – since the latter, as an organ of the UN, escapes oversight from a court that only operates within the EU.67 Second, executive claims of authority, coupled with rules of judicial deference in the field of national security and foreign affairs, have often led courts to adopt a hands-off approach, leaving the political branches wide room for manoeuvre in devising policies to fight terrorism. In the US, for instance, the federal courts have recognised the controversial view that there are ‘political questions’ unfit for judicial decision.68 Based on this doctrine, the US Supreme Court has set aside litigation challenging legislation criminalising material support to terrorism for compliance with free speech,69 and lower federal courts have dismissed cases challenging the

62 63 64 65 66 67 68 69

Joined Cases C-402/05 P and C-415/05 P Yassin A. Kadi and Al Barakaat International Foundation v EU Council and Commission, Opinion of AG Maduro, para 45. See M Tushnet, ‘The political constitution of emergency powers’ (2008) 3 International Journal of Law in Context 275. Pub. L. 109–366 (2006) s 7a. See text below accompanying n 95. See Al Maqeleh v Gates 605 F3d 84 (DC Cir 2010). See L Ginsborg and M Scheinin,‘You can’t always get what you want.The Kadi II conundrum and the Security Council 1267 Terrorist Sanctions Regime’ (2011) Essex Human Rights Review 7, 18. See critically T Franck, Political Questions, Judicial Answers (Princeton University Press, Princeton, 1992). See Humanitarian Law Project v Holder 561 US 1 (2010) (rejecting freedom of speech challenge of material support statute). 93

Federico Fabbrini

domestic freezing of funds of suspected terrorists without due process of law.70 Similarly, in the context of the ECHR, the ECtHR has developed a doctrine of the margin of appreciation, which gives to the contracting parties some autonomy in the implementation of human rights.71 As a result, the ECtHR has ruled that measures restricting the right to privacy or data protection of EU citizens did not constitute an undue interference with the ECHR, as member states enjoyed some latitude in devising their preferred policies to fight terrorism.72 And supreme courts in countries from Japan73 to France,74 have upheld the national security measures under review on similar grounds. Third, a major obstacle to the capacity of courts to protect human rights has been the assertion of secrecy privilege by governments. Since 9/11, national governments have invoked as never before the right to oppose disclosure of information in courts on the grounds that this infringes state secrets.75 This has often resulted in the dismissal of litigation seeking to hold governments accountable for gross human rights violations committed in the fight against terrorism. For instance, US federal courts accepted the government’s claim of a secrecy privilege, which finds its roots in case law of the US Supreme Court dating to the 1950s,76 to set aside civil lawsuit requiring compensation against the CIA for cases of extraordinary renditions.77 In Italy, where the state secret privilege is codified in national legislation,78 the Italian Constitutional Court has repeatedly ruled that public prosecutors, and criminal courts, cannot use information that the government has declared as state secrets as the basis for their incrimination and conviction of intelligence agents involved in extraordinary renditions.79 In both legal systems, therefore, the state secret privilege has de facto prevented courts from investigating criminal acts committed in the fight against terrorism or from awarding compensation to alleged victims of governments’ abuses.80 Given the victories following the assertion of the secrecy privilege in courts, executives have recently increased the number of cases in which they invoke the privilege, profoundly affecting the capacity of the judicial process to provide justice.81

70 71 72 73

74 75 76 77 78 79 80 81

94

See J Davenport, ‘Freezing terrorist finance in its tracks: the Fourth Amendment, due process and the Office of Foreign Assets Control after KindHearts v Geithner’ (2011) 61 Syracuse Law Review 173. See E Benvenisti,‘Margin of appreciation, consensus and universal standards’ (1999) 31 NYU Journal of International Law & Policy 843 See e.g. Uzun v Germany, App No 35623/05, 2 September 2010 (2011) 53 EHRR 24 (rejecting right to privacy challenge of GPS surveillance). See A Ejima,‘From the West to the East: Migration of Surveillance Policy’ in F Davis, N McGarrity and G Williams (eds), Surveillance, Counter-Terrorism and Comparative Constitutionalism (Routledge, Abingdon, 2013) 192. See C.E. No. 262626, Association Secours Mondial de France, 3 November 2004 (French Council of State deferring to the decision of the executive branch to subject an association to an assets’ freeze). See ‘Introduction’ in D Cole, F Fabbrini and A Vedaschi (eds), Secrecy, National Security and the Vindication of Constitutional Law (Edward Elgar, Cheltenham, 2013) 1. See United States v Reynolds, 345 US 1 (1953). See Mohamed v Jeppesen Dataplan Inc, 2010 US App. LEXIS 18746 (9th Cir. 2010), cert. denied Mohamed v Jeppesen Dataplan Inc, 2011 US LEXIS 3575. See now Legge 3 agosto 2007, n 124 (It). See C Cost., sent. 106/2009, 11 March 2009 and now C Cost., sent. 14/2014, 14 January 2014 (Italian Constitutional Court defending broad view of the state secrets privilege). See further F Fabbrini,‘Extraordinary renditions and the state secret privilege: Italy and the United States compared’ (2011) 2 Italian Journal of Public Law 255. See also L Donohue, ‘The shadow of the state secret’ (2010) 159 University of Pennsylvania Law Review 77.

The interaction of terrorism laws with human rights

Judicial attempts to restore human rights: Successes Despite the difficulties, limitations, and shortcomings discussed in the previous section, a comparative constitutional analysis reveals that courts have been effective on several occasions in protecting fundamental rights. On a number of issues, supreme and constitutional courts have been able to review counter-terrorism laws and policies, subject these to strict scrutiny, and restore a healthy balance between national security and human rights.82 Extensive literature has examined the plurality of judicial rulings delivered in the field of counter-terrorism in the US, the EU, Israel, and elsewhere.83 For the purpose of this contribution, it will suffice to recall here four areas in which decisions by high courts have delivered key victories for the protection of human rights in the fight against terrorism. To begin with, the ECJ succeeded in introducing judicial oversight over the asset-freezing measures adopted to prevent the financing of terrorism. In the celebrated Kadi saga, the ECJ step by step affirmed its power to review EU regulations implementing resolutions of the UN Security Council black-listing persons suspected of financing terrorism, and eventually struck down these measures as in violation of the rights to due process and access to court.84 After a lower EU court had initially ruled in 2005 that it did not have jurisdiction to review the freezing measures because they were mandated by the UN and hence prevailed over contrasting EU human rights law,85 in 2008 the ECJ dismissed the claim that the UN Security Council could trump the protection of the fundamental rights enshrined in the EU Charter and concluded that if the EU institutions wanted to freeze the plaintiff ’s assets they must provide him with adequate information, putting him in the condition to defend himself.86 Following this decision, the EU Commission subjected the plaintiff to a new freezing measure and paid only lip service to the due process requirements set by the ECJ. This led to a new round of litigation in which both the lower EU court,87 and ultimately also the ECJ,88 ruled once again that the plaintiff ’s procedural and substantive rights had been violated. The rulings of the ECJ in Kadi restored the protection of due process rights for suspected terrorists and served as a template also for other courts, for instance the UK Supreme Court,89 in dealing with the challenge posed by counter-terrorism financing measures.90

82

83 84 85 86 87 88 89

90

See Public Commission against Torture in Israel v Government of Israel, 53(4) PD 817, 845 [1998-9] (Barak CJ holding for the Supreme Court of Israel that the preservation of the rule of law and recognition of individual liberties constitutes an important component of understanding security). See for example, M Rosenfeld, ‘Judicial balancing in times of stress: comparing the American, British and Israeli approaches to the war on terror’ (2006) 27 Cardozo Law Review 2079. See C Eckes, EU Counter-Terrorist Policies and Fundamental Rights: The Case of Individual Sanctions (Oxford University Press, Oxford, 2009). See Case T-351/01 Yassin A Kadi v Council of the EU and Commission of the EC [2005] ECR II3649. Joined Cases C-402/05 P and C-415/05 P Yassin A Kadi and Al Barakaat International Foundation v EU Council and Commission [2008] ECR I-6351. Case T-85/09, Kadi v Commission (Kadi II) [2010] ECR II-5177. Joined Cases C-584/10 P, C-593/10 P and C-595/10 P, Commission, Council and United Kingdom v Kadi, judgment of 18 July 2013. HM Treasury v Ahmed [2010] UKSC 2 [67], [68] (UK Supreme Court, citing example of the ECJ, striking down the Orders in Council that formed the entirety of the UK counter-terrorism financing regime for violation of due process standards). See F Fabbrini and J Larik, ‘Global Counter-terrorism sanctions and European due process rules: The Dialogue Between the CJEU and the ECtHR’ in M Avbelj, F Fontanelli and G Martinico (eds), Kadi on Trial (Routledge, Abingdon, 2014). 95

Federico Fabbrini

Another area in which courts – in this case, in the US – have been successful overall in restoring a measure of due process is in relation to detention policy. As explained above, the US administration decided to detain individuals captured in the war against terrorism as enemy aliens in the military prison of Guantánamo on the understanding that normal judicial oversight would not apply. Through a series of decisions, however, the US Supreme Court ultimately held that habeas corpus provisions did apply in Guantánamo, and that detainees there had a constitutional right to challenge their detention before federal courts.91 In the Hamdi case of 2004,92 the US Supreme Court cautiously ruled that enemy aliens had the right to rebut the government’s factual assertion before a neutral decision-maker, hinting that a special military tribunal could meet this requirement. In 2006, however, in the Hamdan case,93 the US Supreme Court used rules of statutory construction to circumvent the US Congress’ attempt in reaction to Hamdi to shield US courts from Guantánamo litigations and affirmed the principle that international humanitarian law rules applied in that military prison. Finally, in the milestone Boumediene decision of 2008,94 the US Supreme Court ruled that the Constitution’s habeas corpus provision applied in Guantánamo and took the unprecedented step of declaring unconstitutional a federal statute denying habeas corpus to detainees there, making clear once and for all the principle that procedural guarantees applied as far as Guantánamo’s detainees were concerned.95 Courts have somehow succeeded also in tackling the use of abusive interrogation techniques in the post-9/11 era. Whereas the UK House of Lords had already in 2005 prohibited the use of evidence tainted by torture in criminal trials,96 it has been especially the ECtHR that has restored accountability for gross human rights abuses committed in the fight against terrorism.97 This emerges especially in its El-Masri ruling of 2012, concerning a case of extraordinary rendition.98 The plaintiff – who had been mistaken for another person suspected of being connected to terrorism – had been kidnapped by the CIA in Macedonia and secretly transferred to Iraq and Afghanistan where he was tortured. US federal courts, bowing to the claims of secrecy made by the US government, had refused to hear his case.99 The ECtHR, on the contrary, broke the wall of impunity at the domestic level, and vindicated his claims. The ECtHR ruled that Macedonia, by capturing the plaintiff and handing him over to the CIA, had violated the prohibition of torture and inhumane and degrading treatment, the prohibition of arbitrary detention, the right to private and family life, and the right to access to court, and ordered the respondent government to pay damages in compensation. At the same time, the ECtHR, relying on the extensive parliamentary inquiries on the involvement of EU member states intelligence agencies in extraordinary renditions, endorsed a new right for the victims and the public at large to know about the abuses committed by governments in the field of

91 92 93 94 95 96 97 98 99 96

See D Cole, ‘Rights Over Borders: Transnational Constitutionalism and Guantanamo Bay’ [2008] Cato Supreme Court Review 47. Hamdi et al v Rumsfeld et al, 542 US 507 (2004). Hamdan v Rumsfeld et al, 548 US 557 (2006). Boumediene v Bush, 553 US 723 (2008). See also M Katz, ‘Guantanamo, Boumediene and Jurisdiction-Stripping: The Imperial President Meets the Imperial Court’ (2009) 25 Constitutional Commentary 377. A (FC) et al v Secretary of State for the Home Department [2005] UKHL 71. See further F Fabbrini, ‘The European Court of Human Rights, extraordinary renditions and the right to the truth’ (2014) 14 Human Rights Law Review 85. El-Masri v Macedonia, App No 39360/09, 13 December 2012 (GC). See El-Masri v US, 479 F3d 296 (4th Cir. 2007) cert. denied El-Masri v US, 552 US 947 (2007).

The interaction of terrorism laws with human rights

national security. The ECtHR in subsequent cases then reaffirmed this logic of accountability, where extraordinary renditions were also ruled in violation of the right to life and the prohibition of the death penalty enshrined in the ECHR and its sixth additional protocol.100 Finally, a last area in which courts have sought to push back the excesses of governments’ actions in the fight against terrorism has been that of surveillance. In particular, various state courts in the EU – notably the German Constitutional Court101 and the Irish High Court102 – had raised concerns that the legislation adopted by the EU to enhance the capacity of intelligence and law enforcement agencies to monitor electronic communications violated the right to privacy and data protection. In 2014, the ECJ ruled in Digital Rights Ireland103 that the EU Data Retention Directive of 2006, which forced telecommunication service providers to retain for at least two years all meta-data about emails, phone calls, and text messages, constituted a disproportionate interference with the rights to privacy and data protection enshrined in the EU Charter of Fundamental Rights. As the ECJ stated, the retention of practically everyone’s personal data created a feeling of surveillance inimical to the functioning of a democratic society. As such, the ECJ struck down the EU Directive, de facto empowering national courts to set aside the domestic measures adopted to implement the Directive at the state level.104 A number of factors may explain the willingness and ability of courts to step into the thorny field of national security and deliver important decisions on the protection of fundamental rights, despite the imperative of fighting terrorism. On the one hand, as I have suggested elsewhere, courts operate under the influence of time.105 In the immediate aftermath of a terrorist attack, judges are more reluctant to put limits on the action of the political branches; as time goes by, however, courts may find fewer reasons to defer to the executive or the legislature and stronger arguments to remedy perceived limitations of human rights.106 On the other hand, however, the issue of institutional design does play a role on the capacity of courts to intervene in the field of national security. In my view, in particular, supranational and international courts may often be more successful in redressing human rights abuses than national courts.107 First, they are more detached from the domestic political context. Second, they are not subject to the cut-off application of secrecy claims (because, for example, even if the government asserts a state secret privilege, the court can shift the burden of proof onto the

100 101 102

103 104

105

106

107

See Al Nashiri v Poland, ECHR, App No 28761/11, 24 July 2014 (2013) 57 EHRR 25 and Abu Zubaydah v Poland, App No 7511/13, 24 July 2014. BVerfG, 1 BvR 256/08, 3 March 2010 (striking down the German act implementing the EU Data Retention Directive). See High Court of Ireland, Digital Rights Ireland Ltd v Minister for Communication et al, Rec No 2006/3785P, 19 May 2010 (referring to the ECJ the question whether the Data Retention Directive is compatible with human rights). Joined Cases C-293/12 and C-594/12, Digital Rights Ireland Ltd v Minister for Communication and Kärtner Landesregierung et al, 8 April 2014, nyr. See further F Fabbrini, ‘Human Rights in the Digital Age: The European Court of Justice Ruling in the Data Retention Case and its Lessons for Privacy and Surveillance’ (forthcoming 2015) 28 Harvard Human Rights Journal. F Fabbrini,‘The Role of the judiciary in times of emergency: judicial review of counter-terrorism measures in the United States Supreme Court and the European Court of Justice’ (2009) 28 Yearbook of European Law 664. See also B Ackerman, Before the Next Attack: Preserving Civil Liberties in an Age of Terrorism (Harvard University Press, Cambridge, 2006); C Walker,‘Counter-terrorism and human rights in the UK’ in M Breen-Smyth (ed.), The Ashgate Research Companion to Political Violence (Ashgate, Farnham 2012). See further Fabbrini (n 97). 97

Federico Fabbrini

government and hold it accountable for its inability to demonstrate that the human rights claims of the applicants are false). Third, they are less constrained by procedural rules and can rely on sources of information collected by other human rights bodies. Be that as it may, courts at multiple levels of government have reviewed counter-terrorism laws and policies and often re-established a balance between national security and human rights.108 Yet, many challenges remain.

Conclusion As this chapter has outlined, terrorism and the responses to it have had a profound impact on human rights. Legal and policy developments in multiple areas, including counter-terrorism financing, surveillance, detention, and interrogation, have raised challenges to the protection of substantive and procedural rights enshrined in national constitutions, supranational charters, and international human rights treaties. In this context, courts have been asked to step in, and in several cases have delivered watershed rulings restoring the protection of core human rights, even in the face of national security concerns advanced by national governments and international organisations. From Kadi, to Boumediene, El-Masri and now Digital Rights Ireland, high courts in the EU, the US, and the ECHR, among others, have reaffirmed the centrality of rights such as due process, access to court, liberty, property, privacy, and the prohibition of torture. However, courts have not always been so successful: jurisdictional limits, judicial deference to executive claims in national security and foreign affairs, and the ever-growing resort to secrecy privileges by governments in counter-terrorism litigation have reduced their capacity to protect human rights and hold governments accountable for abuses committed in the fight against terrorism. Although the fight against terrorism may now be slowing down or moving into a different dimension, the interaction between counter-terrorism law and policy will continue to affect constitutional and international law and practice. 109 In the future, therefore, courts will continue to face challenges. Among these is the capacity of the judiciary to develop procedural rules that allow for the effective adjudication of controversial counter-terrorism policies – witness the recent decision of the US Supreme Court to dismiss a constitutional challenge by a privacy group against the NSA surveillance programme because the programme had not been officially acknowledged by the government (although subsequent revelations have shed light on widespread secret monitoring of electronic communications).110 Courts must increasingly interact in a global context, in which the action of national governments or international organisations produce spill-over effects and require judicial cooperation to handle human rights cases.111 Although executives and legislatures at all levels of government must prevent and disrupt the threat of terrorism, it remains an important duty of the judiciary to make sure that responses to terrorism remain constitutional.

108 109

110 111

98

See also L Garlicki, ‘Concluding Remarks’ in D Cole, F Fabbrini and A Vedaschi (eds), Secrecy, National Security and the Vindication of Constitutional Law (Edward Elgar, Cheltenham, 2013) 322. See also US President Barak Obama, speech at National Defense University. Available at: www.whitehouse.gov/the-press-office/2013/05/23/remarks-president-national-defenseuniversity, 23 May 2013 (stating that the war on terror must come to an end and suggesting new challenges ahead) accessed 14 February 2015. See Clapper v Amnesty International, 568 US (2013) (refusing to review NSA surveillance). See further F Fabbrini, ‘Global Sanctions, State Secrets and Supranational Review: Seeking Due Process in an Interconnected World’ in D Cole, F Fabbrini and A Vedaschi (eds), Secrecy, National Security and the Vindication of Constitutional Law (Edward Elgar, Cheltenham, 2013) 284, 291.

7 Terrorism laws and constitutional accountability John Ip

Introduction The term ‘terrorism law’ potentially encompasses a vast range of subject matter. Plainly, it includes the many laws enacted throughout the world around the time of the terrorist attacks of September 11, 2001, to deal with the phenomenon of twenty-first century terrorism. Examples from the UK are legion. They include: the Terrorism Act 2000 (the one terrorism law here predating the 9/11 attacks); the Anti-Terrorism, Crime and Security Act 2001 (ATCSA); the Prevention of Terrorism Act 2005 (PTA); the Terrorism Act 2006; the Counterterrorism Act 2008 (CTA); and the Terrorism Prevention and Investigation Measures Act 2011.1 Examples from elsewhere in the world include Canada’s Anti-Terrorism Act (ATA),2 the Authorisation of Use of Military Force (AUMF), enacted by the US Congress immediately after 9/11, and the USA PATRIOT Act.3 This list is far from complete: various reforms to immigration law, criminal law and procedure, international finance and the structure of security and intelligence agencies, could also be plausibly considered as falling under the rubric of terrorism law.4 However, for the sake of simplicity and concision, this chapter will confine itself to the examples noted above, and focus particularly on terrorism laws from the UK. The other concept signalled in the title to this chapter is constitutional accountability. This idea refers to the existence within a legal system of constraints on executive counter-terrorism. The need for constitutional accountability is based on the premise that allowing unfettered executive discretion in this domain is undesirable. Ensuring constitutional accountability entails an insistence on making the executive answerable to other institutions and entities in relation 1 2 3

4

See C Walker, Terrorism and the Law (Oxford University Press, Oxford, 2011). See R Diab, Guantanamo North: Terrorism and the Administration of Justice in Canada (Fernwood, Nova Scotia, 2008). Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub L No 107–56. See H Ball, U.S.A. Patriot Act of 2001 (ABCCLIO, Santa Barbara, 2004). J Finn,‘Counterterrorism Regimes and the Rule of Law:The Effects of Emergency Legislation on Separation of Powers, Civil Liberties, and Other Fundamental Constitutional Norms’ in M Crenshaw (ed.), The Consequences of Counterterrorism (Russell Sage Foundation, New York, 2010) 34. 99

John Ip

to its activities in a particular domain, and using constitutional norms as the standard for evaluation. In the present context, constitutional accountability requires that the executive’s proposals for terrorism laws and its exercise of powers conferred by those laws be subject to scrutiny by other institutions and actors.5 The most obvious candidates for performing this scrutinising role are legislatures and courts.6 In the case of legislatures, taking constitutional accountability seriously requires that a legislature critically considers the executive’s legislative proposals, as opposed to simply acquiescing to every item on the executive’s counter-terrorism laundry list, as well as monitoring the executive’s exercise of counter-terrorism powers. In the case of courts, when faced with litigation brought by affected persons, ensuring constitutional accountability requires that judges squarely confront issues of legality and proportionality, as opposed to the recurring historical phenomenon of excessive judicial deference upon the government’s invocation of national security. With judicial review of terrorism laws being covered elsewhere in this book,7 this chapter will concentrate on the role of non-judicial institutions and mechanisms in ensuring governance of executive counter-terrorism. At this point, it is important to emphasise that the legislative and executive branches are not monolithic. Legislatures typically consist of houses and various legislative committees; executives consist of a host of departments, agencies and other entities.8 The discussion in this chapter reflects this array by emphasising the work of legislative committees when discussing scrutiny of proposals for counter-terrorism powers prior to enactment by legislatures, and by emphasising the role of legislative committees as well as other review bodies in monitoring the exercise of counter-terrorism powers after enactment. To be clear, none of this is to discount the importance of robust judicial review. As discussed later in this chapter, there are some significant challenges to the effectiveness of non-judicial mechanisms in ensuring constitutional accountability. Indeed, the position advanced in the final section of this chapter is that it is a combination of political and legal constraints that develops through the interaction between non-judicial and judicial means of scrutiny and oversight that is the most likely to ensure constitutional accountability in relation to terrorism laws.

Scrutiny of terrorism laws during the legislative process The comparative advantage that legislatures have over courts is their ability to scrutinise the executive’s proposals for counter-terrorism powers before they gain the force of law. It is possible for the legislature to suggest modifications to the detail of those proposals, and, on occasion, to defeat those proposals outright. As Tomkins observes, the record of the UK Parliament’s scrutiny of government proposals after 9/11 suggests as much:

5 6

7 8

100

Ibid 35. See for example F de Londras and FF Davis, ‘Controlling the Executive in Times of Terrorism: Competing Perspectives on Effective Oversight Mechanisms’ (2010) 30 Oxford Journal of Legal Studies 19; A Horne and C Walker, ‘Lessons learned from political constitutionalism? Comparing the enactment of control orders and terrorism prevention and investigation measures by the UK Parliament’ [2014] Public Law 267. See Chapter 8 (Dickson) in this book. AZ Huq,‘Structural Constitutionalism as Counterterrorism’ (2012) 100 California Law Review 887, 904. See also K Roach,‘Public inquiries as an attempt to fill accountability gaps left by judicial and legislative review’ in F de Londras and F Davis (eds), Critical Debates on Counter-Terrorism Judicial Review (Cambridge University Press, Cambridge, 2014) 183.

Terrorism laws and constitutional accountability

For sure, the government’s bills have been enacted. But, in the process, all have been passed only subject to amendments. While, as we shall see, parliamentarians have not been successful in insisting on all the amendments they would have liked, at the same time, the government has been required to make a series of concessions and in some instances even to abandon core aspects of its preferred policies.9 Much of the nitty-gritty work has been carried out in various parliamentary committees during the legislative process.10 Especially prominent in this regard has been the Joint Committee on Human Rights (JCHR), a select committee constituted by members from both the House of Lords and House of Commons.11 One of the first tasks that the JCHR undertook was scrutiny of the 2001 Bill that became the ATCSA. Despite operating under a tight timetable, the JCHR authored two of the five reports produced by Parliament’s select committees concerning the Bill. The evidence and recommendations in these reports ‘strengthened Parliament’s ability to force concessions from the government’.12 These concessions included a qualification of the Secretary of State’s power to certify a person a suspected international terrorist (a prelude to the detention of that person under the legislation), the inclusion of a sunset clause and provision for various kinds of review, including a review of the legislation by a committee of Privy Counsellors.13 The JCHR continued to scrutinise the government’s proposals for a replacement for the detention regime in Part IV of the ATCSA after it was ruled incompatible with certain rights under the ECHR in the Belmarsh decision.14 The replacement scheme, created by the PTA, authorised control orders – sets of restrictions on rights imposed on an individual to restrict or prevent that person’s involvement in terrorism-related activity. In its reports on the Bill that became the PTA, the JCHR criticised the government’s rush to legislate and the subsequent lack of opportunity for proper scrutiny,15 identified as problematic the limited judicial role in the control order regime and questioned whether the use in control order proceedings of closed material – that is, material not disclosed to the affected person – rendered those proceedings unfair, notwithstanding the use of special advocates to mitigate the prejudice arising from non-disclosure.16 The extent of judicial supervision of control orders was one of the focal points of the legislative debate,17 and, as enacted, the PTA provided for greater judicial involvement in the making of the more onerous category of derogating control orders. Similarly, in relation to the Bill that became the CTA, the JCHR was again active, producing

9

10 11 12 13

14 15 16 17

A Tomkins, ‘Parliament, Human Rights and Counter-terrorism’ in T Campbell, KD Ewing and A Tomkins (eds), The Legal Protection of Human Rights: Sceptical Essays (Oxford University Press, Oxford, 2011) 18. For a differing view, see de Londras and Davis (n 6) 35. J Tham, ‘Parliamentary Deliberation and the National Security Executive: the case of control orders’ [2010] Public Law 79, 97. C Evans and S Evans,‘Legislative Scrutiny Committees and Parliamentary Conceptions of Human Rights’ [2006] Public Law 785, 788. Tomkins (n 9) 19. Ibid; JL Hiebert,‘Parliament and the Human Rights Act: Can the JCHR help facilitate a culture of rights?’ (2006) 4 International Journal of Constitutional Law 1, 29–30; JL Hiebert, ‘Parliamentary Review of Terrorism Measures’ (2005) 68 Modern Law Review 676, 677. A v Secretary of State for the Home Department (2004) UKHL 56 (the ‘Belmarsh case’). Joint Committee on Human Rights, Prevention of Terrorism Bill: Preliminary Report (2004-05 HL 61/HC 389) paras 6–8. Ibid paras 11–14, 16. Joint Committee on Human Rights, Prevention of Terrorism Bill (2004-05 HL 68/HC 334) paras 2–10. On closed material, see further Chapter 18 ( Jenkins) in this book. Tham (n 10) 92. 101

John Ip

six reports.18 Again, while not every substantive position that it advocated was incorporated into the resulting legislation, it did bring human rights considerations to the fore during the legislative process.19 Perhaps the most dramatic example of wider parliamentary resistance to government proposals for terrorism laws concerned the extension of the maximum duration for the power of pre-charge detention under the Terrorism Act 2000. After the London bombings of July 2005, the Blair government brought forth a further raft of proposals, including one to increase the maximum period for pre-charge detention from 14 days to 90 days. On this, Prime Minister Blair suffered his first defeat in the House of Commons by a margin of 31 votes (including 49 Labour Party members).20 Parliament did, however, agree to an extension of the maximum period to 28 days, which was enacted as part of the Terrorism Act 2006. In 2008, a subsequent attempt to increase the maximum period from 28 days to 42 days was stymied in the House of Lords and subsequently abandoned by the government.21 The actions of the US Congress in relation to the USA PATRIOT Act provide another example of the contribution that legislatures can make to scrutinising terrorism laws prior to their enactment. The Act in large part provides for amendments to existing laws and investigative powers;22 its evocative reputation is due to a relatively small number of provisions.23 These include provisions that: allow the government to apply for a judicial order granting access to any tangible item;24 relax the requirements for obtaining administrative subpoenas, known as national security letters (NSLs), which compel the production of certain business records;25 and allow investigators to obtain search warrants under the more permissive standard and procedures of the Foreign Intelligence Surveillance Act of 1978 provided that a significant purpose of the search remains the obtaining of foreign intelligence.26 The USA PATRIOT Act was enacted in October 2001, amid a pressurised environment of political urgency stemming from the perceived need to implement a swift legislative response to the 9/11 attacks. The system of committees was largely bypassed, and the law was passed by overwhelming majorities in both the House of Representatives and the Senate after limited debate.27 Congress did not, however, simply do as it was told by the Bush Administration.28 For

18 19

20 21 22 23

24 25 26 27 28

102

Tomkins (n 9) 22. Ibid 23. For further examples of the JCHR’s work, see Joint Committee on Human Rights, Legislative Scrutiny:Terrorist Asset Freezing etc. Bill (Preliminary Report) (2010-11 HL 41/HC 535); Joint Committee on Human Rights, Legislative Scrutiny:Terrorism Prevention and Investigation Measures Bill (2010-12 HL, 180/HC 1432). R Bellamy, Political Constitutionalism (Cambridge University Press, Cambridge, 2007) 253. Tomkins (n 9) 23. WC Banks, ‘The United States a decade after 9/11’ in V Ramraj and others (eds), Global AntiTerrorism Law and Policy (2nd edn, Cambridge University Press, Cambridge, 2012) 470. As Kent Roach observes, the Act is unexceptional in comparative terms, and was not the actual legal basis for many of the most controversial counter-terrorism policies of the Bush administration. See K Roach, The 9/11 Effect: Comparative Counter-Terrorism (Cambridge University Press, Cambridge 2011) 161–2. J Ip, ‘Sunset Clauses and Counterterrorism Legislation’ [2013] Public Law 74, 78. S Sinnar, ‘Protecting Rights from Within? Inspectors General and National Security Oversight’ (2013) 65 Stanford Law Review 1027, 1044. Banks (n 22) 471–2. JE Owens, ‘Congressional Acquiescence to Presidentialism in the US ‘War on Terror’’ (2009) 15 Journal of Legislative Studies 147, 161. BA Howell, ‘Seven Weeks: The Making of the USA PATRIOT Act’ (2004) 72 George Washington Law Review 1145, 1178.

Terrorism laws and constitutional accountability

example, despite opposition from the Bush Administration, the Act included a four-year sunset clause that applied to many of the more controversial provisions.29 Similarly, the Bush Administration’s original proposal included a provision that authorised the Attorney General to indefinitely detain any alien reasonably believed to pose a terrorist threat. This provision was modified to require reasonable grounds for believing the alien was a terrorist threat, and the duration of detention was limited to seven days.30 In the case of Canada’s ATA, parliamentary committees provided an important forum for allowing interested parties the opportunity to give their input and voice their concerns about the government’s proposals. The Special Senate Committee on Bill C-36 issued a report in November 2001, which made a number of recommendations regarding the Bill that became the ATA. Among these recommendations were suggested amendments to the definition of terrorist activity and the addition of a five-year sunset clause.31 There were also concerns expressed by civil society groups about the potential consequences of including an element of political or religious motive as part of the definition of terrorist activity.32 Some of these recommendations resulted in amendments to the legislation. The exemption for protests and strikes in the definition of terrorist activity was broadened, and an avoidance of doubt provision regarding the mere expression of political, religious or ideological thought was added. The government also agreed to the inclusion of a sunset clause, but one that was limited to the controversial powers of preventive arrest and investigative hearings.33

Scrutiny of terrorism laws after enactment Scrutiny of terrorism laws and their operation can occur after enactment as well. As discussed further below, the site where scrutiny occurs may be the legislature or another review body.

Legislative reconsideration as a result of sunset clauses Some post-enactment parliamentary review has occurred in the UK because certain terrorism laws, such as Part IV of the ATCSA and the PTA, were enacted subject to relatively short sunset clauses with provision for twelve-month extensions. Although one of the major rationales for sunset clauses is to create the opportunity for meaningful reconsideration of the law by the legislature at a future point in time, the quality of the subsequent legislative consideration that has taken place has often proved disappointing. For example, the renewal debates for Part IV of the ATCSA fell well short of the consideration that the same provisions received at the time of their enactment.34 The annual renewal debates for the PTA fared little better and were generally notable for being brief and poorly attended.35

29 30 31 32 33 34 35

Ibid 1172–9. Ibid 1203–4. It has never been used. K Roach, September 11: Consequences for Canada (McGill-Queen's University Press, Montreal, 2003) 66. K Roach, ‘The Role and Capacities of Courts and Legislatures in Reviewing Canada's AntiTerrorism Law’ (2008) 24 Windsor Review of Legal and Social Issues 5, 11. Ibid; Roach, September 11: Consequences for Canada (n 31) 66. These two provisions expired in 2007 as per the sunset clause but were reintroduced by the Combating Terrorism Act in 2013. de Londras and Davis (n 6) 35. L Zedner, ‘Preventive Justice or Pre-Punishment? The Case of Control Orders’ (2007) 60 Current Legal Problems 174, 176; Walker, Terrorism and the Law (n 1) 324. 103

John Ip

In the US, the debate occasioned by the USA PATRIOT Act’s sunset clause, which was originally set to trigger at the end of 2005, did lead to Congress reconsidering the potentially expiring provisions. In the end, Congress made permanent fourteen of the sixteen sections originally subject to the sunset clause. Along the way, it made various adjustments, including increased provision for judicial review and reporting obligations in relation to the use of certain surveillance powers.36 The two provisions that were not made permanent were also modified to include new safeguards. These two provisions remain subject to sunset, with their expiry date having been extended several times.37 Moreover, in addition to the reforms made to the provisions subject to the Act’s original sunset clause, modifications and additional accountability mechanisms were added to certain non-expiring provisions as well, such as the authority to issue NSLs.38

Scrutiny of legislatively conferred powers by other review bodies Various committees and review bodies have done much of the work of reviewing the quotidian operation of terrorism laws. These reviews can be one-off or ad hoc, or periodic and ongoing. The work of the Newton Committee is an example of the first category. Section 122 of the ATCSA required that the Secretary of State appoint a committee with the task of reporting to Parliament about the Act by the end of 2003. The committee, headed by Lord Newton, comprised ‘life peers, judges, and elected members of Parliament from all major parties’.39 It drew upon a wide range of information from various sources.40 This included some of the secret closed material, upon which some of the persons detained under Part IV were certified as suspected international terrorists, and both open and closed sessions of the Special Immigration Appeals Commission, where review of the Secretary of State’s certification decisions occurred.41 In late 2003, the Newton Committee issued a report that was particularly critical of Part IV of the ATCSA. It identified several major problems with the ATCSA’s detention scheme that would later be the subject of litigation. These included: the extensive use of closed material, which it noted was ‘a significant limitation in what is an essentially adversarial legal process’;42 the necessity of derogation from Article 5 of the ECHR given that only the UK had found it necessary to derogate;43 and the ineffectiveness and discriminatory nature of a detention power limited to non-citizen terrorist suspects.44 The Newton Committee accordingly recommended that Part IV of the ATCSA be repealed and replaced with a scheme that would apply to citizen and non-citizen terrorist suspects and not require derogation.45 Among its recommendations as to possible replacements was the

36 37 38 39 40 41 42 43 44 45 104

Ip, ‘Sunset Clauses and Counterterrorism Legislation’ (n 24) 78. The two provisions are ss 206 (roving wiretap orders, which attach to a suspect rather than a particular communication device) and 215 (judicial orders granting access to any tangible item). Ibid 87. Roach, The 9/11 Effect (n 23) 274. Privy Counsellor Review Committee, Anti-Terrorism, Crime and Security Act 2001 Review: Report (2003–04 HC 100) para 72. Ibid para 74. Ibid para 187. Ibid para 189. Ibid paras 192–96. Roach, The 9/11 Effect (n 23) 274.

Terrorism laws and constitutional accountability

imposition of a set of less onerous restrictions on the movement and communications of certain persons – what would later become known as control orders.46 Section 123 of the ATCSA stipulated that any part of the ATCSA specified by the Newton Committee would cease to have effect six months after the laying of the Committee’s report, unless there was a motion made in each house of Parliament considering the report. While particularly critical of Part IV, the Newton Committee specified the entire Act, meaning that the ATCSA would expire after six months unless both houses of Parliament made the requisite motion. This forced Parliament to consider and discuss the issues identified in the Newton Report.47 Similar to the ATCSA, Canada’s ATA provided that either a legislative house or a joint committee was to review the Act’s provisions and operation within three years. Committees in the House of Commons and the Senate commenced work in December 2004, and although it was envisaged that the reports would be available by the end of 2005, the reports were delayed until early 2007.48 During that time, there was considerable change in the composition of the Commons committee. This meant that a substantial number of committee members who were involved in drafting the final Commons report were not those who had heard from the witnesses earlier on in the review process.49 As for the reports that the committees produced, the Commons report is notable for either overlooking or failing to address several controversial aspects of the ATA. The recommendations that it did make were also minor.50 The Senate report, by contrast, was ‘more assertive in proposing significant changes to the functioning of Canadian anti-terrorism law’.51 However, the Canadian government only responded to the recommendations in the Commons report, and assessments as to the meaningfulness of the government’s response differ.52 Inspectors General (IGs) in the US, created by Congress for the purpose of monitoring executive agencies, are another example of one-off oversight of terrorism laws. Since 9/11, IGs have made some significant contributions to the monitoring of executive counter-terrorism, including activities that have not been the subject of judicial review.53 On occasion, Congress has delegated to IGs the task of investigating certain matters relating to the operation of terrorism laws. The most relevant example is the role played by the Inspector General (IG) for the Department of Justice (DOJ) in monitoring the impact of NSLs. As noted earlier, the USA PATRIOT Act relaxed the requirements for obtaining NSLs.54 When Congress came to reconsider the Act in 2006 because of the Act’s sunset clause, among the additional mechanisms

46

47 48 49

50 51 52

53 54

Privy Counsellor Review Committee (n 40) para 251. For the immediate response, see Home Office, Counter-Terrorism Powers: Reconciling Security and Liberty in an Open Society (Cm 6147, London, 2004). Ip ‘Sunset Clauses and Counterterrorism Legislation’ (n 24) 97. Ibid 96. C Forcese, ‘Fixing the Deficiencies in Parliamentary Review of Anti-terrorism Law: Lessons from the United Kingdom and Australia’ (IRPP Choices, Montréal, May 2008) 7–8. Avalable at: www.irpp.org/events/archive/20070921/participants/forcese.pdf accessed 21 February 2011. Ibid 3. Ibid 9. Forcese’s view that many of the recommendations were dealt with in a cursory fashion (ibid 11) is disputed by Lynch: A Lynch, ‘The Impact of Post-Enactment Review on Anti-Terrorism Laws: Four Jurisdictions Compared’ (2012) 18 Journal of Legislative Studies 63, 70. Sinnar (n 25) 1031. Ibid 1044–5. 105

John Ip

of oversight introduced by Congress was a requirement that the DOJ’s IG audit the use of NSLs. Subsequently, the DOJ’s IG issued three reports that revealed the widespread failures of the Federal Bureau of Investigation (FBI) to comply with the law and its own internal guidelines regarding the obtaining of NSLs. These reports resulted in immediate changes in the FBI’s practices, the revision of internal procedures and congressional hearings.55 A final example of a one-off review, this time not specified in legislation, is the UK government’s Review of Counter-Terrorism and Security Powers,56 which was announced by the then newly elected Coalition government in 2010. This Review, undertaken by Home Office officials but subject to the independent oversight of Lord Macdonald,57 was a self-conscious attempt on the part of the Coalition to ‘provide a correction in favour of liberty’,58 this correction being seen by the Coalition’s two constituent political parties as necessary to counteract the diminution of civil liberties under the previous New Labour government.59 The Review focused on six areas, which included the maximum period of pre-charge detention under the Terrorism Act 2000, the reform and replacement of control orders under the PTA and the reform of the suspicionless stop and search power under section 44 of the Terrorism Act 2000.60 The Review concluded that certain counter-terrorism powers were ‘neither proportionate nor necessary’,61 and made a series of recommendations that formed the basis of several reforms to terrorism laws in the UK. These reforms included setting the maximum period of pre-charge detention at 14 days,62 replacing the section 44 stop and search regime with a more circumscribed stop and search power63 and replacing control orders with milder terrorism prevention and investigation measures.64 In addition to the one-off reviews discussed above, other review bodies work on a periodic and ongoing basis. For example, in addition to examining the government’s legislative proposals concerning counter-terrorism, the JCHR has regularly issued reports concerning the renewal of counter-terrorism legislation such as the control order regime under the PTA. Here, the JCHR focused on whether the obligations imposed by control orders were so onerous as to amount to deprivations of liberty under article 5 of the ECHR, and whether the process for imposing control orders, which involved the use of closed material and special advocates, was sufficiently fair so as to be compatible with article 6 of the ECHR. It also advocated improved parliamentary scrutiny over the annual renewal process for the control order regime, and greater emphasis on criminal prosecution as a means of dealing with terrorist suspects.65 55 56 57 58 59 60 61 62 63

64 65

106

Ibid 1045–6. Home Office, Review of Counter-terrorism and Security Powers (Cm 8004, London, 2011). See Lord Macdonald, Review of Counter-Terrorism and Security Powers: A Report by Lord Macdonald of River Glaven QC (Cm 8003, London, 2011). Ibid 4. C Walker, ‘The Reshaping of Control Orders in the United Kingdom: Time for a Fairer Go, Australia!’ (2013) 37 Melbourne University Law Review 1, 5. Home Office (n 56) 4. Ibid 5. Protection of Freedoms Act 2012, s 57. Ibid, s 61. See generally J Ip, ‘The Reform of Counterterrorism Stop and Search after Gillan v United Kingdom’ (2013) 13 Human Rights Law Review 729. See also Chapter 22 (Lennon) in this book. Terrorism Prevention and Investigation Measures Act 2011. See C Walker, The Anti Terrorism Legislation (3rd ed, Oxford University Press, Oxford, 2014) chap 7. See for example Joint Committee on Human Rights, Counter–Terrorism Policy and Human Rights (Ninth Report): Annual Renewal of Control Orders Legislation 2008 (2007-08 HL 57/HC 356); Joint Committee on Human Rights, Counter–Terrorism Policy and Human Rights (Fourteenth Report): Annual Renewal of Control Orders Legislation 2009 (2008-09 HL 37/HC 282).

Terrorism laws and constitutional accountability

The other site of ongoing review of counter-terrorism legislation in the UK is the Independent Reviewer of Terrorism Legislation. As the current holder of that office (David Anderson) has written, the UK has a tradition of independent review of terrorism laws that dates back to the 1970s.66 The Reviewer has the statutory obligation to report annually on the operation of the Terrorism Act 2000, Part 1 of the Terrorism Act 2006, the Terrorism Prevention and Investigation Measures Act 201167 and the Terrorist Asset-Freezing etc. Act 2010.68 To produce these reports, the Reviewer has access to a wide variety of information, including secret documents, court judgements, personal observation of the powers in action and consultation with persons involved in the operation of the powers conferred by particular terrorism laws and with persons affected by those powers.69 Because of the Reviewer’s access to this unique range of sources, the Reviewer can provide authoritative information about the operation of terrorism laws to inform the deliberative processes of other legal and political actors. Additionally, the Reviewer can, on occasion, influence the operation of those laws or contribute to their reform.70 The Reviewer has functional equivalents in other jurisdictions, with the closest analogue being Australia’s Independent National Security Monitor (INSLM). Established under a 2010 statute,71 the INSLM is tasked with ongoing oversight of Australia’s counter-terrorism and national security legislation. Unlike the UK’s Reviewer, the INSLM has formal powers to obtain information.72 Government support for the office has proved, however, to be less than stable, with only a late change of heart preventing the office’s abolition in 2014. An independent agency within the executive branch, the Privacy and Civil Liberties Oversight Board (PCLOB), fulfils a similar review function in the US. Although originally proposed by the National Commission on Terrorist Attacks on the US (the ‘9/11 Commission’) in 2004, the PCLOB did not exist in any real sense until 2012.73 Its stated purpose is to analyse and review executive counter-terrorism, and to ensure that civil liberties are given proper emphasis in the development and implementation of terrorism laws.74

Assessment Having outlined some of the non-judicial mechanisms for scrutinising terrorism laws both before and after enactment, the chapter now turns to address the extent to which these

66

67 68 69 70

71 72 73 74

D Anderson,‘The independent review of terrorism legislation’ (2011) 5 European Human Rights Law Review 544, 544; D Anderson, ‘Independent Review of Terrorism Laws: Searchlight or Veil?’ (SSRN, 24 February 2014); [2014] Public Law 403. Previously, the Reviewer reported on the PTA’s control order regime. The Reviewer can also produce ad hoc reports. See Anderson,‘The independent review of terrorism legislation’ (n 66) 545. Ibid 546. Examples include the internal review of control orders, the two-year maximum for terrorism prevention and investigation measures and port and border controls. See ibid; Anderson, ‘Independent Review of Terrorism Laws: Searchlight or Veil?’ (n 66) paras 49–54. See also A Lynch (n 52) 73; J Blackbourn, ‘Evaluating the Independent Reviewer of Terrorism Legislation’ (2012) 65 Parliamentary Affairs 1. Independent National Security Monitor Act 2010. Anderson, ‘Independent Review of Terrorism Laws: Searchlight or Veil?’ (n 66) para 30. See Privacy and Civil Liberties Oversight Board, ‘About the Board’. Available at: www.pclob.gov/ about-us accessed 29 August 2014. See 42 USC 2000ee. 107

John Ip

mechanisms are effective in ensuring constitutional accountability. It does so by examining four criticisms of non-judicial mechanisms.

Party loyalty and electoral incentives There are two embedded obstacles to the legislature engaging in meaningful scrutiny of terrorism laws. The first is the existence of political parties and party discipline. While some commentators take an optimistic view of the possibilities of cross-party civil libertarian dissent in Parliament, such dissent is rare.75 Dissent in numbers sufficient to actually defeat a government proposal – as opposed to making the government modify aspects of its proposal – is rarer still.76 The oft-discussed defeat of the Blair government’s proposal for increasing the maximum period of pre-charge detention to 90 days is very much the exception rather than the rule.77 The potency of party loyalty is also evident in the US, where the legislature and executive are separately elected. After the initial legislative action of the PATRIOT Act and AUMF, Congress did little legislating on counter-terrorism. The passivity of Congress during this time can to a significant degree be attributed to the fact that the same political party controlled Congress and the Presidency for most of the period between the 9/11 attacks and 2006.78 This also explains the lack of congressional oversight over such matters as the detention and treatment of detainees.79 Second, even where party loyalty is not a consideration, electoral incentives are skewed in favour of greater security and granting the executive more counter-terrorism powers. While there is electoral risk in being seen to deny the executive sufficient counter-terrorism powers, there is not the same risk for giving the executive too much in the way of counter-terrorism powers.80 This is especially the case where the costs and impact of those powers is disproportionately borne by discrete and politically marginalised groups, such as foreign nationals.81

Issues of scope The reforms advocated by certain entities engaged in post-enactment review tend to be of modest scope, more micro than macro in nature. For example, Walker described the early reports of Lord Carlile, the Independent Reviewer of Terrorism Legislation from 2001 to 2011, on the control order regime as being ‘very thorough but also relatively conservative.’82 On Lord Carlile’s reports in the area of pre-charge detention, Blackbourn offers this assessment: ‘Lord Carlile typically made minor recommendations on narrow, practical details, or offered suggestions in line with existing government policy.’83 As Lynch notes, Lord Carlile’s suggestions for 75 76 77 78 79 80 81 82 83

108

See Bellamy (n 20) 251. de Londras and Davis (n 6) 34–5. G Phillipson, ‘Deference, Discretion and Democracy in the Human Rights Act Era’ (2007) 60 Current Legal Problems 40, 55. DJ Levinson and RH Pildes, ‘Separation of Parties, Not Powers’ (2006) 119 Harvard Law Review 2312, 2352. S Issacharoff, ‘Political Safeguards in Democracies at War’ (2009) 29 Oxford Journal Legal Studies 189, 207; Owens (n 27) 178. Huq (n 8) 921; Phillipson (n 77) 45–6. See generally D Cole, Enemy Aliens (The New Press, New York, 2003). C Walker, ‘Keeping Control of Terrorists without Losing Control of Constitutionalism’ (2007) 59 Stanford Law Review 1395, 1446. J Blackbourn, ‘Evaluating the Independent Reviewer of Terrorism Legislation’ (2012) 65 Parliamentary Affairs 1, 10.

Terrorism laws and constitutional accountability

reform were usually related to some aspect of the practical implementation of a counterterrorism power, and he ‘very rarely applied a critical judgment to whether specific measures were justifiable or legally sound.’84 Middleton makes a similar criticism of the Coalition’s Review of Counter-Terrorism and Security Powers, which, in his view, proposed changes that amounted to tinkering at the edges rather than root and branch reform.85 Aside from cautious conservatism, non-judicial mechanisms of post-enactment review may also, for varying reasons, have selective coverage. In the case of the Review of Counter-Terrorism and Security, the inclusion of some of the six issues covered was dictated by adverse judicial decisions from domestic courts and from Strasbourg. The inclusion of certain other issues, however, was the result of political commitments made by the parties constituting the Coalition.86 The result was the inclusion of the issue of surveillance by local authorities, while an issue like the scope of various criminal offences in terrorism laws, arguably at least as significant if not more so, was not included.87 As the law stands, the Independent Reviewer’s remit also has certain blind spots: the Reviewer is obliged to periodically review the operation of certain terrorism laws and not others – the ATCSA and CTA are notably not subject to review.88 As the current Reviewer has observed, the limited coverage is particularly anomalous in relation to the four regimes for the freezing of terrorist assets: only the operation of one regime, that of the Terrorist Asset-Freezing etc. Act 2010, falls within the Independent Reviewer’s remit.89 Further complicating matters is the fragmentation of review in relation to Northern Ireland. While the Independent Reviewer considers the operation of terrorism laws across the UK, certain powers contained in the Justice and Security (Northern Ireland) Act 2007 are reviewed by a separate reviewer, while other parts of that Act are not subject to review at all.90 David Anderson’s suggestion is that Reviewer’s remit should be reformed to include all of the terrorism laws, and also that the Reviewer should be given greater flexibility in choosing what issues to report on.91 The Home Office’s recently announced proposal for a Privacy and Civil Liberties Board, which would replace the Reviewer, also envisages the Board being able to review a broader range of terrorism laws than the current Reviewer.92

Toothlessness A further criticism about the scrutiny provided by non-judicial bodies concerns the lack of tangible consequences. Even where a review body makes a recommendation in relation to a certain terrorism law, there is nothing to compel the government to take note of, consider or act on that recommendation. For example, the Newton Committee noted that its powers were essentially ‘those of persuasion only’.93 Despite the Committee’s detailed and considered

84 85 86 87 88 89 90 91 92 93

A Lynch (n 52) 72. B Middleton, ‘Rebalancing, Reviewing or Rebranding the Treatment of Terrorist Suspects: the Counter-Terrorism Review 2011’ (2011) 75 Journal of Criminal Law 225, 246. Ibid 225–6. Ibid 226. D Anderson, ‘The independent review of terrorism legislation’ (n 66) 549. Ibid. Walker, Terrorism and the Law (n 1) 515. D Anderson, The Terrorism Acts in 2013 (Home Office, London 2014) paras 11.17–11.28. See D Anderson, ‘Review reviewed – review’ (16 July 2014). Available at: https://terrorism legislationreviewer.independent.gov.uk/whirligig/ accessed 29 August 2014. Privy Counsellor Review Committee (n 40) para 109. 109

John Ip

criticisms of Part IV of ATCSA, the government was not persuaded, and asserted its continued belief that the regime was a necessary response to the terrorist threat.94 The Independent Reviewer also lacks formal power.95 On certain issues, such as the problems with the section 44 stop and search power,96 the repeated admonitions of the Reviewer were seemingly ignored.97 As for the JCHR, its reports, which have frequently been referred to in debates concerning terrorism laws,98 clearly raise awareness about the relevant human rights issues. But its record of being able to change the government’s view on terrorism laws or to change voting outcomes in Parliament is considerably weaker.99 Similarly, in the US context, Sinnar observes that even the more rigorous investigations by IGs ‘rarely led to individual relief for most victims, repercussions for high level officials, or significant rights-protective constraints on agency discretion’.100 In Canada, as was noted earlier, only one of the two reports regarding the ATA undertaken by legislative committees elicited a formal response from the government.

Cherry-picking The fact that the recommendations of a particular committee or review body generally create no binding obligations on the government creates the further difficulty of cherry-picking. Certain recommendations may be acted upon but not others. A report advocating a continuation of the status quo can be relied on to bolster the government’s existing position; the recommendations for reform in a report adverse to the government’s preferred policy position can be ignored. The possibility of cherry-picking is greater where there are multiple sites of post-enactment review. For example, the Senate and Commons Committees, which were engaged in concurrent reviews of the Canadian ATA, came to opposite conclusions regarding whether the definition of terrorist activity ought to be modified. The Senate Committee recommended removal of the motive element (which required a political, religious or ideological motivation for the act),101 while the Commons committee recommended the definition remain the same.102

94 95 96 97

98

99 100 101

102

110

Home Office (n 46). See alsoV Lowe,‘“Clear and Present Danger”: Responses to Terrorism’ (2005) 54 International and Comparative Law Quarterly 185, 195. Anderson, ‘The independent review of terrorism legislation’ (n 66) 546. Ip, ‘The Reform of Counterterrorism Stop and Search after Gillan v United Kingdom’ (n 63) 732. The Independent Reviewer, however, rightly observes that ‘recommendations accepted by the Government’ is an imperfect metric for measuring influence and value. See Anderson,‘Independent Review of Terrorism Laws: Searchlight or Veil?’ (n 66) para 32. See M Hunt, H Hooper and P Yowell,‘Parliaments and Human Rights’ (Arts & Humanities Research Council, 2012) 7, 41. Available at: www.ahrc.ac.uk/News-and-Events/Publications/Documents/ Parliaments-and-Human-Rights.pdf accessed 29 August 2014. JL Hiebert, ‘Governing Like Judges?’ in T Campbell, KD Ewing and A Tomkins (eds), The Legal Protection of Human Rights: Sceptical Essays (Oxford University Press, Oxford, 2011) 63. Sinnar (n 25) 1031. Special Senate Committee on the Anti-terrorism Act,‘Fundamental Justice in Extraordinary Times’ (February 2007) 13. Available at: www.parl.gc.ca/39/1/parlbus/commbus/senate/com-e/antie/rep-e/rep02feb07-e.htm accessed 29 August 2014. Subcommittee on the Review of the Anti-terrorism Act, ‘Rights, Limits, Security: A Comprehensive Review of the Anti-Terrorism Act and Related Issues’ (March 2007) 9. Available at: www.parl.gc.ca/content/hoc/Committee/391/SECU/Reports/RP2798914/sterrp07/sterrp 07-e.pdf accessed 12 December 2013.

Terrorism laws and constitutional accountability

As Lynch observes, ‘[f]aced with this diverse array of opinion, the government could safely move in any direction it wished’.103 In the end, the government agreed with the more conservative position taken by the Commons committee.104 This phenomenon was also evident in the UK, with the government able to navigate between the generally accommodating views of Lord Carlile and the more critical views of the JCHR. This selectivity is illustrated by the post-enactment scrutiny of the PTA. Lord Carlile’s view of the operation of the PTA’s control order regime was consistently more sanguine than that of the JCHR. For example, Lord Carlile stated that the fairness of the process whereby control orders were imposed (in particular, the use of special advocates to represent the controlled person during proceedings from which that person was excluded) was satisfactory. By contrast, the JCHR, relying on evidence from actual special advocates involved in such proceedings, was persistently critical of the fairness of the process.105 Perhaps unsurprisingly, the government ‘tended to accept Carlile’s assurances rather than the JCHR’s view that improvements were required’.106 The same can be observed in relation to the recommendations of Lord Carlile and the JCHR in relation to the length of pre-charge detention. Here as well, the government accepted Lord Carlile’s recommendations more often than it accepted those of the JCHR. The government’s apparent preference for the views of Lord Carlile is explicable by the fact that his recommendations typically amounted to endorsements of the government proposals for extensions.107 By contrast, the JCHR’s recommendations, which often suggested changes to the proposals, were rejected by the government.108

A network of accountability The discussion so far may seem rather pessimistic about the prospect of ensuring constitutional accountability over terrorism laws. While various forms of non-judicial mechanisms of review, operating both before and after enactment, have contributed towards this goal, there is, as the previous section has shown, no silver bullet. However, this does not mean that the only recourse is then to judicial review. The choice is not simply one between legislatures and courts, between non-judicial and judicial mechanisms, or between politics and law.109 Rather, the non-judicial mechanisms for ensuring constitutional accountability should be viewed as part of a larger network of accountability that also includes judicial review. On this

103 104 105

106 107 108 109

Lynch (n 52) 68. Ibid. Joint Committee on Human Rights, Counter–Terrorism Policy and Human Rights (Ninth Report): Annual Renewal of Control Orders Legislation 2008 (n 65) para 56; Joint Committee on Human Rights, Counter–Terrorism Policy and Human Rights (Sixteenth Report). Annual Renewal of Control Orders Legislation 2010 (2009-10 HL 64/HC 395) paras 70–72. Lynch (n 52) 73. See Lord Carlile, Report on Proposed Measures for Inclusion in a Counter-Terrorism Bill (Cm 7262, London, 2007). Blackbourn (n 83) 10. A Lynch, ‘Legislating anti-terrorism: observations on form and process’ in V Ramraj and others (eds), Global Anti-Terrorism Law and Policy (2nd edn, Cambridge University Press, Cambridge, 2012) 154; de Londras and Davis (n 8) 46; AZ Huq,‘Binding the Executive (by Law or by Politics)’ (2012) 79 University of Chicago Law Review 777, 826. 111

John Ip

view, non-judicial mechanisms of review and judicial review have complementary functions.110 At the pre-enactment stage, non-judicial mechanisms, particularly the legislature and its various constituent parts, have the ability to scrutinise, and, in some cases at least, influence the final form of proposed powers in terrorism laws. At the post-enactment stage, non-judicial mechanisms have greater freedom as to what they can examine – for example, the legislature (at least in theory), and legislative committees, like the JCHR, have the flexibility to concentrate and sustain attention on a particular issue.111 By contrast, judicial review relies on a litigant with the requisite standing bringing a case before a court. What this means in practice is that the exercise of some powers may be subject to the sporadic control of judicial review, while others may not be reviewed at all. Where there is a case brought before a court, however, what judicial review can provide is a critical examination of the impact upon the individual of the exercise of the power, and an assessment of the legality and proportionality of that power by an institution that is relatively insulated from the hurly-burly of partisan politics. Additionally, should a litigant be successful, the decision of the court creates consequences that are not easily ignored by the government. The parameters of the particular counter-terrorism measure imposed on the affected person may have to be adjusted, or the procedure for the imposition may have to be modified. It may be the case that new legislation has to be enacted. What is significant is that adverse judicial decisions often create impetus for the reconsideration of terrorism laws, either in part or in their entirety. Where the reports and recommendations of various non-judicial review entities can help – despite their non-binding nature – is by generating relevant factual information about the operation of terrorism laws. In general terms, information is critical to effective legislative and judicial oversight of the executive.112 For example, one of the strengths of IGs in the US is how they can generate information, including information about counter-terrorism activities that are often shrouded in secrecy. This in turn allows other review bodies to operate more effectively.113 Similarly, although lacking formal power, the UK’s Independent Reviewer of Terrorism Legislation is independent of the executive, but privy to a wide range of information (including secret, classified information). This unique perspective allows the Reviewer to ‘inform politicians, decision-makers and the public about the operation of the laws’.114 By generating information that may then be employed by others, the Independent Reviewer can contribute to the reform of terrorism laws.115 The same point can be made about the Newton Committee, which included information drawn from a wide range of sources in its report on the operation of the ATCSA, and the JCHR, which has generated in its reports about the control order regime some of the most significant insights into the actual operation of special advocates.

110

111 112 113 114 115 112

The result of legislative scrutiny has often involved increasing the judicial supervision of the operation of terrorism laws, such as over control orders: H Fenwick and G Phillipson, ‘Covert Derogations and Judicial Deference: Redefining Liberty and Due Process Rights in Counterterrorism Law and Beyond’ 56 McGill Law Journal 863, 906; D Barak-Erez,‘Terrorism Law Between the Executive and Legislative Models’ (2009) 57 American Journal of Comparative Law 877, 892. Tomkins (n 9) 27. GE Metzger, ‘The Interdependent Relationship between Internal and External Separation of Powers’ (2009) 59 Emory Law Journal 423, 445. Sinnar (n 25) 1057. Anderson ‘The independent review of terrorism legislation’ (n 66) 546. Ibid; Anderson, ‘Independent Review of Terrorism Laws: Searchlight or Veil?’ (n 66) para 39.

Terrorism laws and constitutional accountability

The generation of information takes on significance because it to some extent alleviates the information asymmetry between the executive branch and the other branches of state.116 It assists and possibly gives greater confidence to courts when they are dealing with challenges to the legality of counter-terrorism measures brought by specific individuals. This is because one of the often-noted barriers to robust judicial scrutiny of the operation of terrorism laws, and one of the explanations for the poor historical record of meaningful judicial review, is a lack of information.117 In the longer term, the generation of information helps create the basis and impetus for empirically informed reform of terrorism laws.118 The reform of the law regarding the detention of terrorist suspects in the UK provides a useful case study. What has happened is an incremental amelioration. The movement from the indefinite detention of terrorist suspects of foreign origin at Belmarsh prison, to control orders, and more recently to terrorism prevention and investigation measures, is the result of legislative reform of the relevant terrorism laws. Political decisions by political decisions-makers have certainly figured in this; but so too have judicial decisions, the work of non-judicial review bodies and the efforts of civil society.119 It will be recalled that one of the concessions extracted by Parliament during the enactment of the ATCSA was for a committee of Privy Counsellors to review the entire Act. This eventually resulted in the Newton Report, which was pointedly critical of the detention scheme in Part IV of the ATCSA. As noted, despite criticism from the Newton Committee as well as the JCHR,120 the government held firm on this issue. It would take the House of Lords’ landmark Belmarsh decision to change this.121 What is notable is how strongly the reports of the Newton Committee and the JCHR featured in the leading speech of Lord Bingham. Indeed, Hickman goes so far as to suggest that ‘[t]he most significant impact of the Newton Committee report may in fact have been in fortifying their Lordships in holding that the detention powers breached the Convention’.122 Although Lord Bingham ultimately found against the appellants on the derogation issue under article 15 of the ECHR, he did note the Newton Committee’s scepticism regarding the necessity of derogation, along with several reports of the JCHR expressing doubt as to whether the case for derogation had been made out.123 Additionally, the Newton Report and the JCHR figured in the parts of Lord Bingham’s speech concerned with whether the measures undertaken were strictly required by the exigencies of situation. Lord Bingham noted at length the shortcomings of the detention scheme in Part IV of the ATSCA that had been identified by the Newton Committee.124 In coming to the conclusion that the detention scheme was

116 117 118 119

120

121 122 123 124

See AW Neal, ‘Terrorism, Lawmaking, and Democratic Politics: Legislators as Security Actors’ (2012) 24 Terrorism and Political Violence 357, 364. Lynch, ‘Legislating anti-terrorism: observations on form and process’ (n 109) 153. See further Chapter 20 (Legrand, Bronitt and Stewart) in this book. See D Cole,‘Where Liberty Lies: Civil Society and Individual Rights After 9/11’ (2012) 57 Wayne Law Review 1203; J Ip, ‘The Supreme Court and House of Lords in the War on Terror: Inter Arma Silent Leges?’ (2010) 19 Michigan State Journal of International Law 1, 36. Privy Counsellor Review Committee (n 40) paras 185–203; Joint Committee on Human Rights, Anti-terrorism, Crime and Security Act 2001: Statutory Review and Continuance of Part 4 (2003-04 HL 38/HC 381) paras 33–40. Belmarsh case (n 14). TR Hickman, ‘Between Human Rights and the Rule of Law: Indefinite Detention and the Derogation Model of Constitutionalism’ (2005) 68 Modern Law Review 655, 667. Belmarsh case (n 14) paras 23–24. Ibid [34]. 113

John Ip

disproportionate, Lord Bingham relied in part on the conclusions reached by the Newton Committee.125 In concluding that the scheme was also discriminatory, Lord Bingham noted the concerns expressed by the Newton Committee and JCHR on that point.126 The effect of the declaration of incompatibility issued by the House of Lords in Belmarsh was to shift the focus back to the political process.127 The government response in substantial part was to enact the control order regime of the PTA. The PTA was not without its own issues, and aspects of it came under sustained scrutiny from the JCHR, and eventually the courts as well. Indeed, as noted, it was Parliament’s insistence that led to the judicial scrutiny of control orders being made more robust.128 Probably the most significant strand of litigation to occur over control orders concerned whether the process for imposing a control order, which involved the use of closed material and special advocates, was sufficiently fair for the purposes of article 6 of the ECHR. On this point, the JCHR expressed grave doubt.129 It would take two decisions from the House of Lords, Secretary of State for the Home Department v MB and Secretary of State for the Home Department v AF,130 to settle that article 6 required an irreducible minimum of disclosure of the case to the affected person in control order proceedings. More specifically, the affected person had to receive at least the gist of the case against him so as to allow that person to give effective instructions to the special advocate. The ruling in AF in turn cast doubt on the viability of the control order regime, which led to consideration of alternatives by the political branches.131 With the Liberal Democrats having undertaken as a political matter to get rid of control orders, it was unsurprising that they were included as one of the areas to be addressed by the Coalition’s Review of Counter-Terrorism and Security Powers.132 In accordance with the Review’s recommendations, the control order regime was subsequently replaced with the relatively more moderate regime of terrorism prevention and investigation measures.133

Conclusion This chapter has discussed how non-judicial institutions have contributed to ensuring constitutional accountability over terrorism laws. The discussion has outlined the ways in which the legislature and legislative committees can influence the shape of the government’s proposals for

125 126 127 128 129

130 131 132 133

114

Ibid [43]. Ibid [64]–[65]. A Lynch,‘Exceptionalism, politics and liberty: a response to Professor Tushnet from the Antipodes’ (2008) 3 International Journal of Law in Context 205, 307. Tham (n 10) 92–93. See for example Joint Committee on Human Rights, Counter-Terrorism Policy and Human Rights: Draft Prevention of Terrorism Act 2005 (Continuance in Force of sections 1 to 9) Order 2006 (2005-06 HL 122/HC 915) paras 76–8. [2007] UKHL 46; [2009] UKHL 28. See further Chapter 8 (Dickson) in this book. Fenwick and Phillipson (n 110) 909. Middleton (n 85) 225. On the improvements made to the control order regime, see Joint Committee on Human Rights, Legislative Scrutiny: Terrorism Prevention and Investigation Measures Bill (n 19) paras 1.7–1.9. See generally C Walker and A Horne,‘The Terrorism Prevention and Investigations Measures Act 2011: one thing but not much the other?’ [2012] Criminal Law Review 421. But see H Fenwick, ‘Designing ETPIMs around ECHR Review or Normalisation of “Preventive” Non-Trial-Based Executive Measures?’ (2013) 76 Modern Law Review 876. Despite the criticisms of the latter, under the more restrictive Terrorism Prevention and Investigation Measures (TPIM) regime no orders have been extant since February 2014.

Terrorism laws and constitutional accountability

terrorism laws prior to enactment, as well as the impact that those bodies, along with other mechanisms of review, can have on monitoring the operation of terrorism laws after enactment. At the same time, the chapter also canvassed some of the limitations on the effectiveness of these non-judicial mechanisms. Ensuring constitutional accountability over terrorism laws is inherently challenging. There is no single institution, body or mechanism that can reliably carry out such a herculean task. The best that can be done is to build in a degree of redundancy by enlisting a variety of political institutions, legal institutions and review bodies for the job. It is the process of interaction between these institutions and review bodies, both judicial and non-judicial, which is most likely to give rise to political and legal constraints on terrorism laws and the executive’s exercise of powers under those laws.

115

8 Terrorism laws and legal accountability Brice Dickson

Introduction This chapter explores the extent to which courts can contribute to the countering of terrorism. It begins by considering the criteria against which to assess whether courts are making an appropriate contribution in this sphere, arguing that the best measures of success are judicial legitimacy and effectiveness. It then suggests that the extent to which courts act legitimately and effectively in the context of counter-terrorism will depend, in part, on which category of actor the courts are attempting to hold to account. Drawing a distinction between four types of actors – terrorist suspects, counter-terrorism operatives, law enforcers and law-makers – the chapter posits that courts can act most legitimately and effectively in relation to terrorist suspects and law enforcers, but are less successful in applying legal accountability to counterterrorism operatives and law-makers. The subsequent section explains how the accountability function of judges also depends on the powers that are expressly or impliedly conferred on them by national and international legal regimes. The chapter concludes by asking whether there are questions in the field of counter-terrorism that courts should never be expected to answer.

Assessing the role of judges in counter-terrorism All states appoint judges to adjudicate on various kinds of disputes. Almost by definition these judges are acting on behalf of the state but at the same time are meant to be independent of the state in that, if the state itself is involved in a dispute, the judges are expected to behave impartially. Doing so is difficult, because law itself is a social construct built around a collection of implied assumptions as well as expressly agreed norms, the nature of which will vary depending on the socio-political culture of the society of which the judges themselves form a part and from which they have benefited professionally. In the western legal tradition the mainstay of this construct is often abbreviated to the phrase ‘the rule of law’ (or, sometimes,‘the principle of legality’), the two main strands of which are summed up in the adages that ‘noone is above the law’ and ‘everyone must be treated equally by the law’. It is trite to observe, however, that ‘legality’ alone is a poor indicator of a just society. Hans Kelsen and Carl Schmitt are well-known for their over-zealousness in supporting a ‘legality’ focus, while more modern 116

Terrorism laws and legal accountability

legal philosophers, such as Ronald Dworkin, Joseph Raz, John Rawls and Robert Alexy, maintain the view that other values need to be brought to bear on any evaluation of whether a legal system is just or not.1 Dworkin maintained the view that the ideal judge, whom he called Hercules, would have perfect knowledge and so be able to provide the ‘correct’ answer to any legal question.2 Notoriously, there is no generally accepted definition of the term ‘terrorism’.3 It is nevertheless safe to assume that the vast majority of the world’s judges would accept that at the core of the concept is the use of violence for political purposes. If the political purposes run counter to those of the government of the state within which the judge is operating, the judge will invariably be opposed to the oppositional violence (ignoring the fact that the government itself may be maintaining its position through the application of violence). Even if judges are appointed to their roles after the use of politically motivated violence has become common in the state, it is very unlikely that they would have secured and maintained their posts if they were suspected of being sympathetic to the tactic of anti-state terrorism. It is conceivable that some judges could find terrorism acceptable in some circumstances (such as against odious foreign regimes),4 but it remains highly improbable that a judge could continue to comply with his or her judicial oath while at the same time openly defending terrorist activity against the domestic state. To that extent, we can include judges in the cadre of state officials who are tasked with countering terrorism. They do so by applying the law not only to persons who are suspected of committing terrorism but also to persons who are suspected of violating the law in seeking to stop terrorism. While playing a significant role in ensuring that society is protected against dangerous people who wish to kill and maim, judges also help to ensure that society does not fall into the trap of justifying one of the goals of terrorists by helping to create the kind of unjust society that so angers them. As demonstrated many years ago by Shapiro, to achieve this delicate balance, judges need to cultivate a widespread acceptance of their good faith and integrity – key elements of judicial legitimacy.5 They also need to demonstrate that their interventions in the field of counterterrorism are adding value to what is already being done by other players in the counter-terrorism field – that they are being effective.6 These two criteria for measuring the contribution judges make to counter-terrorism are difficult to satisfy, for an injudicious turn of phrase, an unsubstantiated line of reasoning or an unexplained rejection of a plausible argument may all undermine an individual judge’s acceptability in the public’s eyes. In holding alleged

1

2 3 4 5 6

See eg H Kelsen, General Theory of Law and State, (A Wedberg trans, 3rd edn, Harvard University Press, Cambridge MA, 1949); WE Scheuerman, Carl Schmitt: The End of Law (Rowman and Littlefield, Oxford, 1999); R Dworkin, Justice in Robes (Harvard University Press, Cambridge MA, 2006); J Raz, Between Authority and Interpretation: On the Theory of Law and Practical Reason (Oxford University Press, Oxford, 2009); J Rawls, A Theory of Justice, (Harvard University Press, Cambridge MA, rev edn 1999); R Alexy, The Argument from Injustice: A Reply to Legal Positivism (BL Paulson and SL Paulson trans, Clarendon Press, Oxford, 2002); A Dershowitz, Rights from Wrongs: A Secular Theory of the Origins of Rights (Basic Book, New York, 2004). Most notably in Taking Rights Seriously (Harvard University Press, Cambridge MA, 1977), especially Ch 4. See Chapter 2 (Saul) in this book. See R v Gul [2013] UKSC 64. The standard work on judicial legitimacy is M Shapiro, Courts: A Comparative and Political Analysis (University of Chicago Press, Chicago, 1981). There is an overlap here with the commoner criterion of ‘capacity’, on which the locus classicus is D Horowitz, The Courts and Social Policy (Brookings Institution, Washington DC, 1977). 117

Brice Dickson

terrorists to account by convicting them of crimes and/or sentencing them to punishments, judges can easily be characterised as collaborating with a supposedly oppressive state.7 On the other hand, by applying in terrorist cases the legal principles which in a non-terrorist context might seem uncontroversial (such as that confessions must be entirely voluntary), judges also run the risk of being portrayed as anti-state or even as facilitators of terrorism. What seems clear is that legitimacy and effectiveness are mutually reinforcing desiderata. The more legitimacy judges have when countering terrorism, the more effective they will be, and vice versa. It is this recipe for judicial ‘success’ that helps to make judges common targets for terrorist attacks. A glance at the annual reports of the UN Special Rapporteur on the Independence of Judges and Lawyers reveals the vulnerability of judges around the world to intimidation.8 They are too frequently the object of physical attacks by terrorists9 or the target of verbal assaults by disaffected politicians. Despite the prestige and financial rewards that normally accompany judicial appointment, the furrow ploughed by judges tends to be a lonely one. Their role in counter-terrorism is certainly under-estimated. Many examples could be cited of ‘brave’ decisions by judges in the field of counterterrorism. From decades gone by one could cite the efforts of judges in Germany, Italy, Spain and Northern Ireland to apply the law in prominent trials of alleged terrorists, despite the threats made against them by terrorist groupings.10 As regards judicial integrity in the face of government pressure to dilute the rule of law by extending ‘emergency’ powers in the context of counter-terrorism, one could refer to decisions by the UK’s House of Lords in 2004 and 2005,11 by the US Supreme Court in 200412 and 200813 and by the Supreme Court of Canada in 2007.14 At the international level, where the pressures on judges are not so great (because

7 8 9

10

11 12

13 14

118

Compare S Weill, The Role of National Courts in Applying International Humanitarian Law (Oxford University Press, Oxford, 2014), especially Ch 2. Available at: www.ohchr.org/EN/issues/Judiciary/Pages/IDPIndex.aspx accessed 3 November 2014. In November 2001 a judge was killed by ETA in retaliation for the arrest of two of its members by Spanish police: E Daly ‘Spanish Judge Shot to Death; Basque Rebels Suspected’ (NewYork Times, NewYork, 8 November 2001). Available at: www.nytimes.com/2001/11/08/world/spanish-judgeshot-to-death-basque-rebels-are-suspected.html accessed 3 November 2014. In 1987 the IRA murdered Gibson LJ and his wife, allegedly because three years earlier the judge had acquitted three police officers of the murder of a member of the IRA. For a report on the Gibson murders see the Cory Inquiry Collusion Report, Lord Justice Gibson and Lady Gibson (2003). Available at http://cain. ulst.ac.uk/issues/collusion/cory/cory03gibson.pdf accessed 3 November 2014. A Vercher, Terrorism in Europe: An International Comparative Legal Analysis (Clarendon Press, Oxford, 1992) especially chs 6–10; B Dickson, ‘Northern Ireland’s troubles and the judges’ in B Hadfield (ed.), Northern Ireland: Politics and the Constitution (Open University Press, Buckingham, 1992) Ch 9. A v Secretary of State for the Home Dept [2004] UKHL 56; A v Secretary of State for the Home Dept (No 2) [2005] UKHL 71. Rasul v Bush 542 US 466 (2004), holding that US judges can decide whether non-US citizens held at Guantánamo Bay were lawfully imprisoned; and Hamdi v Rumsfeld 542 US 507 (2004), holding that US citizens held at Guantánamo Bay have the right to due process and to challenge their status as ‘enemy combatants’ before an impartial authority. Boumedienne v Bush 553 US 723 (2008), holding that all detainees at Guantánamo Bay could rely on the fundamental rights guaranteed by the US Constitution. Charkaoui v Canada 2007 SCC 9, holding that detention of non-nationals under ‘security certificates’ was in breach of their right to liberty under Canada’s Charter of Rights and Freedoms 1982, because detainees were not permitted to examine the evidence used to issue the certificates.

Terrorism laws and legal accountability

they are acting as an international group) but where it is also more difficult to secure legitimacy,15 one could mention the decisions of the ECtHR in Chahal v UK16 and of the Court of Justice of the European Union in Kadi I and II.17 In the former, the Strasbourg Court ruled that a state in the Council of Europe could not deport a foreigner to any other country if the foreigner would be at risk of suffering serious harm in that country; this applied even if the foreigner had no other legal entitlement to remain in the host state. It was this decision that prompted Prime Minister Tony Blair to call for reforms to international human rights law: he argued that the catastrophic nature of 7/7 meant that ‘the rules of the game had changed’.18 Thankfully, neither British nor Strasbourg judges have since risen to that bait.19 In the Kadi judgments, the European Commission’s efforts to freeze the assets of a businessman suspected of involvement in the funding of terrorism were ruled unlawful because they ignored his right to be told why he was suspected of such involvement so that he could attempt to answer the claim. While criticised in some quarters for tarnishing the EU’s image as a loyal supporter of the international legal order,20 the approach in the Kadi judgments has been generally welcomed as further evidence of the EU’s commitment to fundamental human rights.21 The Grand Chamber of the ECtHR has followed Luxembourg’s lead in this regard, but has used different reasoning: in Nada v Switzerland it struck down a sanction imposed by the Swiss government on the basis that Mr Nada had not been afforded a mechanism by which he could seek to challenge the sanction in a Swiss court, which was a violation of the right to an effective remedy (Article 13 of the ECHR).22 While it would be naïve to claim that international courts always come to the ‘correct’ decision in a Dworkinian sense,23 there can be little doubt that, in general, their judgments carry a credibility that, if the judgments are duly implemented at the national level, can enhance the legitimacy and effectiveness of national courts in their counter-terrorism work. What is certain is that judges around the world face common problems in this sphere.24 It therefore makes sense for them to collaborate on how best to respond to challenges.

15 16 17

18 19 20 21 22

23

24

Y Lupu, ‘International judicial legitimacy: lessons from national courts’ (2013) 14 Theoretical Inquiries in Law 437. App No 22414/93, 1996-V, (1997) 23 EHRR 413. Joined Cases C – 402/05 P and C – 415/05 P, Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I–6351 (3 September 2008); Joined Cases C–584/10 P, C–593/10 P and C–595/10 P (13 July 2013). The Guardian, 6 August 2005. Available at: www.theguardian.com/politics/2005/aug/06/ terrorism.july7 accessed 3 November 2014. The Grand Chamber of the ECtHR applied Chahal v UK in Saadi v Italy, App No 37201/06, 28 February 2008, (2009) 49 EHRR 30. G de Búrca,‘The European Court of Justice and the international legal order after Kadi’ (2010) 51 Harvard International Law Journal 1. C Gearty, ‘In praise of awkwardness: Kadi in the CJEU’ (2014) 10 Eur Con LR 15. App No 10593/08, 12 September 2012, (2013) 56 EHRR 18. See also E de Wet, ‘From Kadi to Nada:Techniques favouring human rights over United Nations Security Council Sanctions’ (2013) 12 Chinese Journal of International Law 1. In Finogenov v Russia, App No 18299/03, 20 December 2011, the ECtHR made controversial remarks concerning the state’s margin of appreciation when deciding how best to protect the right to life of persons kidnapped by terrorists; see S Skinner, ‘Deference, proportionality and the margin of appreciation in lethal force case law under article 2 of the ECHR’ [2014] EHRLR 32. A Rosas,‘Counter-Terrorism and the Rule of Law: Issues of Judicial Control’ in A Salinas de Frías, K Samuel and N White, Counter-Terrorism: International Law and Practice (Oxford University Press, Oxford, 2012) Ch 4. 119

Brice Dickson

The efficacy of judges in relation to categories of actors If the function of judges is to hold actors to account for their actions and omissions, this begs the question of whether their legitimacy and effectiveness in doing so are dependent on the nature of the actors whom they are seeking to hold to account. In the context of counterterrorism, there are arguably four categories of actors who may be the object of judicial attention. First, and most obviously, there are terrorist suspects who have been brought before the courts because they have been accused of terrorism-related crimes. The role of judges in such situations is to ensure that the individuals receive a fair trial and, if found guilty, a fair punishment. Second, there are the people who are responsible for trying to thwart terrorist activity – members of the police and other security forces, including border agents and secret agents (let’s call these ‘counter-terrorism operatives’). Third, there are actors who openly apply the procedures of the criminal justice system to people who have been arrested on suspicion of involvement in terrorist activity – these are ‘law enforcers’ – such as police officers and prosecutors (at times some of these actors will also fall into the previous category). Finally, there are people who, at a more strategic level, devise and enact the laws that frame the countering of terrorism – the ‘law-makers’. Such is the position of judges in most societies that their impact is likely to be at its greatest when they are engaged in their primary activity – ensuring that defendants receive a fair trial. More particularly, judges have to ensure that, however horrific alleged crimes may be, the individuals charged in relation to their commission must be treated as innocent until proven guilty. Some criminal justice systems – particularly those in the common law family – are especially rigorous in excluding from the judge’s knowledge (or that of the jury, if there is one) any information that is not legally ‘admissible’. This means, for example, that information that has been obtained second-hand (meaning not directly from the suspect or from a witness to the crime – ‘hearsay’) or which is deemed irrelevant to the particular incident under investigation (such as the suspect’s previous criminal record or expressed political views) may not be presented to the judge at all or, if presented, has to be discounted. Civil law systems tend not to take the same approach, partly because the role of judges in many of those systems is not just to decide on guilt but also to oversee the conduct of investigations. On the other hand, common law systems are sometimes content to admit evidence even though it has been obtained illegally or in breach of someone’s fundamental rights or is uncorroborated. The laws of England and Wales, Canada and Australia are more tolerant of such evidence than is the law of the US or Ireland.25 The overarching principle that judges in all systems must apply, certainly in Europe, is whether the trial process, taken as a whole, was ‘fair’.26 The Inter-American Court of Human Rights speaks more generally of ensuring that defendants do not suffer ‘real disadvantages’.27 In English law, however, a decision by the ECtHR that a trial was unfair will

25

26

27

120

See D Osborn, ‘Suppressing the truth: judicial exclusion of illegally obtained evidence in the United States, Canada, England and Australia’ (2000) Murdoch University Electronic Journal of Law 40. Available at: www.austlii.edu.au/au/journals/MurUEJL/2000/44.html#n120 accessed 3 November 2014; D McGrath,‘The exclusionary rule in respect of unconstitutionally obtained evidence’ (2004) 26 Dublin University Law Journal 108. J Jackson and S Summers, The Internationalisation of Criminal Evidence: Beyond the Common Law (Cambridge University Press, Cambridge, 2012), J Jackson,‘The effect of human rights on criminal evidentiary processes: towards convergence, divergence or realignment?’ (2005) 68 Modern Law Review 737. L Burgorgue-Larsen and A Úbeda de Torres, The Inter-American Court of Human Rights: Case Law and Commentary (Oxford University Press, Oxford, 2011) 663–7.

Terrorism laws and legal accountability

not automatically mean that a conviction in the case was unreliable.28 The European Court seems prepared to accept that responses to its judgments on unfair trials are a matter that falls within a state’s margin of appreciation.29 As regards the work of judges when holding counter-terrorism operatives to account, the requirement to act fairly is just as strong. These officers must themselves act in accordance with law, but the constraints imposed on their activities by law are usually not as restrictive as they are for law enforcers. No society can afford to give its counter-terrorism operatives carte blanche to act as they wish when seeking to prevent or detect terrorist activity, but, by the same token, the hands of operatives must not be so tied that terrorists can too easily evade their clutches. In situations where counter-terrorism operatives feel they are being outwitted or overwhelmed by terrorists, it is incumbent on the former to explain why they need additional powers. The conferment of these powers must be a matter for the law-makers and only in exceptional circumstances should judges be able to self-authorise the use of powers that have not been conferred by democratically elected law-makers. The duty of judges to uphold the law even extends to situations that create great difficulties for the national government. Dilemmas frequently arise when counter-terrorism activities are secret, as inevitably they need to be on occasions. Most obviously, the police and security services must engage with informers who, because they are close to the suspects in question, are able to pass on reliable information about the suspects’ intentions. The success of such operations depends to some extent on the police and security services making payments to such informers, though a line must be drawn at the points (a) where people act as informers not out of choice but because they are vulnerable or have been threatened with some detriment if they do not cooperate (such as prosecution for criminal offences), or (b) where the informer’s closeness to the suspect requires the commission of a serious criminal offence by the informer to which the informer’s handler is expected to turn a blind eye. Judges are not in a good position to determine whether informers have been unduly pressurised or allowed to get away with serious offences, but in any event these questions rarely arise because information provided by informers tends not to be used as direct evidence in court (as this would mean revealing the identity of the informer) but rather as a means of obtaining other evidence that can be used in court. In European states, the police and security services can confidently cite Article 2 of the ECHR (the right to have one’s life protected by law) as a reason for not disclosing whether someone is an informer, since such individuals could be at grave risk from terrorist organisations for having divulged important information. In Northern Ireland, judges have had to grapple with this problem on many occasions.30 An application is currently pending before the ECtHR on whether it was unfair to admit as evidence in civil proceedings brought against two alleged terrorists information provided by an undercover FBI agent in criminal proceedings involving the same two men.31 An IRA informer is currently suing the UK Security Services for their alleged negligence in not properly protecting him since his role became public.32 28 29 30

31 32

R v Lyons [2002] UKHL 44. Hulki Güneş v Turkey, App No 17210/09, 2 July 2013. See also P Leach, Taking a Case to the European Court of Human Rights (3rd edn, Oxford University Press, Oxford, 2011) 94–5. E.g. Re Scappaticci’s Application [2003] NIQB 56. See also SC Greer, Supergrasses (Clarendon Press, Oxford, 1995); R Dudai,‘Informers and transition in Northern Ireland’ (2012) 52 British Journal of Criminology 32. McKevitt and Campbell v UK, Apps nos 61474/12 and 62780/12, lodged on 18 September 2012, HUDOC website ‘Communicated Cases’. See also n 42 below. Available at: www.theguardian.com/uk-news/2014/jul/08/ira-informer-martin-mcgartlandsecret-hearing-mi5 accessed 3 November 2014. 121

Brice Dickson

The work of counter-terrorism operatives also becomes difficult for judges to assess when it entails secret surveillance. In many countries the law permits information obtained through secret surveillance to be admitted in court as evidence.33 The UK is an outlier in this regard, because the Security Services there have to date been able to persuade a majority of parliamentarians that allowing such information to be admissible would mean disclosing the techniques used to collect the information in the first place.34 The Security Services are sometimes willing to forego a prosecution altogether rather than risk revealing how they operate. At the level of the ECtHR, judges insist that when surveillance takes place it must be ‘in accordance with law’, which means that there must be clear, accessible and proportionate legal regulations in place to ensure that if human rights are interfered with during the surveillance it is necessary to do so for one of the reasons specified in Article 8(2) of the ECHR: ‘in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others’. Provided that the law in place meets these criteria, and that there are sufficient avenues available for people who suspect that they are the object of surveillance to have their suspicions allayed, the Strasbourg Court is prepared to accept that ‘national security’ can be a reason for not divulging full details of the surveillance operations to the person concerned, or even whether surveillance has been conducted at all. This was made amply clear in Kennedy v UK.35 Judges also realise that, while they can ensure that suspects receive a fair trial if they are prosecuted, there cannot be total judicial control over how information, which eventually leads to the prosecution, is collected. At present, for example, courts in most democratic countries will not tolerate the admission of information that is likely to have been obtained through the use of torture, but they are prepared to accept that counter-terrorism operatives and law enforcers may need to make use of such information when conducting their activities and investigations. In 2005 this was made explicit by the UK Law Lords in A v Secretary of State for the Home Department (No 2),36 thereby endorsing the position that English law does not apply a ‘fruit of the poisoned tree doctrine’, under which any information that derives even indirectly from information obtained by torture is inadmissible. But the ECtHR has made it clear, in Jalloh v Germany,37 that evidence obtained by torture, including fruit of the poisoned tree, can never be relied upon as proof of the guilt of the tortured person and, in Othman v UK,38 the Court departed from the view expressed by the majority of the seven Law Lords in A (No 2). Its ruling was that an applicant did not have to prove on the balance of probabilities that evidence obtained by the torture of someone else would be used in the applicant’s trial, only that there were substantial grounds for believing that the applicant would be exposed to a real risk of this occurring.39 In Canada, the Supreme Court has upheld the constitutionality of

33 34 35 36 37 38 39

122

E Metcalfe, Intercept Evidence: Lifting the Ban (JUSTICE, London, 2006), Pt 3; G Crossman and others, Overlooked: Surveillance and Personal Privacy in Modern Britain (Liberty, London, 2007) House of Lords Select Committee on the Constitution, Surveillance: Citizens and the State (2008-09 HL 18-I). See Chapter 9 (McKay and Moran) in this book. App No 26839/05, (2011) 52 EHRR 4. A (n 11). App No 54810/00, (2006) 44 EHRR 32. App No 8139/09, (2012) 55 EHRR 1. But the ECtHR has still not reached the position that evidence that may have been obtained by inhuman or degrading treatment is always inadmissible, despite such treatment being outlawed by Article 3 of the ECHR in the same absolute terms as torture.

Terrorism laws and legal accountability

‘investigative hearings’ where judges supervise the questioning of persons in relation to terrorist activities and those persons are compelled to answer the questions, but are assured that whatever they say (or whatever information is derived from what they say) cannot later be used as evidence against them.40 Canada’s innovatory use of ‘special advocates’ has also been picked up by the ECtHR as a possible model for dealing with the problem that some pieces of information are so sensitive that, if they were to be adduced in a courtroom, neither the defendant nor the defendant’s lawyers should be permitted to see them. In such situations Canada, and now the UK, permits ‘special’ lawyers to be appointed who can consider the information on the defendant’s behalf and ask the prosecution relevant questions about it, but who are not allowed to consult with the defendant or the defendant’s lawyers about the contents of the information. After pressure from the Strasbourg Court, judges in the UK ruled that defendants must always receive the ‘gist’ of the case against them so that they can challenge it appropriately.41 In response to judicial decisions holding that such ‘closed material procedures’ could not be used in civil as opposed to criminal cases,42 the UK Parliament has intervened to make that possible.43 But UK judges are continuing to insist that the procedures should be used only in very limited circumstances.44 When holding ‘law enforcers’ to account, judges can be more intrusive. Non-secret actions by police officers and prosecutors can be more readily evaluated for their fairness. In most democracies there are now many rules, regulations and guidelines as to how these officials must engage with suspected criminals, including suspected terrorists. As regards the police’s power to arrest, it is the position throughout Europe that an arresting officer cannot simply infer that his or her superiors must have had reasonable grounds for suspicion before instructing the officer to arrest a suspect.45 It remains the case in the UK, however, that persons arrested on suspicion of terrorism cannot be released on bail prior to being charged,46 nor has the European Court set any specific time limits on pre-charge detention.47 In Northern Ireland, where the terrorist threat remains ‘severe’, police powers to stop and question people were struck down because there was no code of practice in place to provide advice on how they should be exercised.48 Even if some counter-terrorism powers escape condemnation by national judges, 40

41

42 43

44 45 46

47 48

Application under s 83.28 2004 SCC 42, [2004] SCR 248. Le Bel and Fish JJ dissented (paras 169–92) because they thought the involvement of judges in such hearings compromised their judicial independence. Secretary of State for the Home Dept v AF (No 3) [2009] UKHL 28, applying A v UK, App No 3455/05, (2009) 49 EHRR 29. See A Kavanagh,‘Special advocates, control orders and the right to a fair trial’ (2010) 73 Modern Law Review 836. See further Chapter 15 (Kremnizer and Saba) in this book. Al-Rawi v The Security Services [2011] UKSC 34. Justice and Security Act 2013, ss 6–14 and Sch 2, Pt 2. In the first test of the new procedures in Northern Ireland, the police and Ministry of Defence are currently seeking a closed material procedure so that they can defend a civil claim brought by a woman who claims to have been falsely imprisoned by the alleged IRA informer Freddie Scappaticci. See report at: www.bbc.co.uk/ news/uk-northern-ireland-27868074 accessed 3 November 2014. See Guardian News and Media Ltd v AB and CD [2014] EWCA Crim (B1). O’Hara v UK, App No 37555/97, 2001-X, (2002) 34 EHRR 32, applied in Commissioner of Police for the Metropolis v Raissi [2008] EWCA Civ 1237, at [33]. Re Duffy’s Application (No 2) [2011] NIQB 16 (Div Ct); Colin Duffy lodged an application with the ECtHR on this point on 24 September 2012 (see App No 29062/12, HUDOC website ‘Communicated Cases’). B Dickson, ‘Article 5 of the ECHR and 28-day pre-charge detentions of terrorist suspects’ (2009) 60 Northern Ireland Legal Quarterly 231. Applications by Fox, McNulty and Canning [2013] NICA 19. A code was then hastily put in place. 123

Brice Dickson

the ECtHR may still find them in breach of fundamental rights. For example, in the Gillan case the House of Lords unanimously upheld counter-terrorism stop and search powers (with Lord Bingham, the Senior Law Lord, listing no fewer than 11 safeguards in the legislation which he thought protected people against an abuse of the powers), but the European Court unanimously held that the powers amounted to a violation of the right to a private life.49 The UK legislation was amended as a result.50 It is when courts seek to hold law-makers to account in the terrorism context that they face considerable difficulty. They can sometimes chip away at some of the excesses that legislatures devise, but they are not in a position to fully weigh up the dangers facing a society that often prompt the law-makers to enact laws specifically targeted at terrorists. Often, it seems, such laws are enacted not because they are strictly required from a security point of view but because governments want to be seen to be doing something in response to a particular terrorist attack. Laws often have more of a propaganda function than an instrumental one. Nevertheless, in states where judges have the power to declare laws invalid if they breach the country’s constitution, there have been several instances of judicial interventionism in the counter-terrorism context.51 While India’s Supreme Court has upheld the constitutional validity of numerous counter-terrorism laws,52 the experience elsewhere has been different. In 2004 the Constitutional Court of Indonesia (where there was a serious terrorist outrage in Bali in 2002) held by five votes to four that the retroactive provisions in the Anti-Terrorism Law 2002 violated the Constitution.53 In 2008, in Boumedienne v Bush, the US Supreme Court, again by five votes to four, held that prisoners who were detained as ‘enemy combatants’ at Guantánamo Bay in Cuba could challenge the legality of their detention by filing habeas corpus petitions in US courts. In 2013 the Federal Constitutional Court of Germany, while largely upholding the legality of new legislation allowing the creation of an anti-terrorism database, pointed to several respects in which it was defective and required alterations to be made to the law by the end of 2014.54 Even in countries where there is no single written constitution, as in the UK and Israel, there are examples of courts sending a message to the law-makers that they need to think again about the content of the law. In 1999 the High Court of Justice in Israel found unlawful the application of ‘moderate physical and psychological pressure’ on Palestinians suspected of ‘security offences’.55 In Ahmed v HM Treasury the UK Supreme Court ruled that the government had acted beyond its powers in introducing the Terrorism (UN Measures) Order 2006 because the Order did not comply with the requirements of the United Nations Act 1946.56 Likewise, in Bank Mellat v HM Treasury, while the UK Supreme Court ruled by a six-

49 50 51 52

53 54 55

56 124

R (Gillan) v Commissioner of Police for the Metropolis [2006] UKHL 12; Gillan and Quinton v UK App No 4158/05, (2010) 50 EHRR 45. See further Chapter 22 (Lennon) in this book. By the Protection of Freedoms Act 2013, ss 59-63. See too Chapter 7 (Ip) in this book. E.g. in Kartar Singh v Punjab (1994) SCC (3) 569, JT (2) 423; see generally V Vijayakumar, ‘Legal and institutional responses to terrorism in India’ in V Ramraj, M Hor and K Roach (eds), Global Anti-Terrorism Law and Policy (1st edn, Cambridge University Press, Cambridge, 2005) Ch. 17. H Juwana, ‘Indonesia’s Anti-Terrorism Law’, in Ramraj, Hor and Roach, ibid 295 at 303–4. BVerfG judgment of 24 April 2013, 1 BvR 1215/07, summarised in English at: www.bundes verfassungsgericht.de/pressemitteilungen/bvg13-031en.html accessed 3 November 2014. Public Committee Against Torture v Israel [1999] IsrSC 53(4), (1999) 7 BHRC 31. Available at: www.btselem.org/download/hc5100_94_19990906_torture_ruling.pdf accessed 3 November 2014. Ahmed v HM Treasury [2010] UKSC 2.

Terrorism laws and legal accountability

to-three majority that it did have the power to use a ‘closed material procedure’ even though it was not expressly authorised to do so by statute,57 it went on to decide (by a five-to-four majority) that on the facts before it the Treasury had acted unlawfully in issuing an order restricting the Bank’s access to UK financial markets on account of its alleged connection with Iran’s nuclear programme.58 From this brief survey it is possible to conclude that the legitimacy and effectiveness of judicial action are at their lowest in the terrorism context when it seeks to hold to account counter-terrorism operatives who operate secretly. They are greater when courts hold to account law-makers, but greater still when they hold to account law enforcers – the police, immigration officials and prosecutors – and, most of all, suspected terrorists.

National and international models for judicial counter-terrorism Regardless of the nature of the actors whom judges hold to account in relation to terrorism, the legitimacy and effectiveness of the judges’ role will also depend on the nature of the powers bestowed upon them. The source of those powers will usually be the constitution of the country in question, but under that umbrella there is still room for a variety of approaches. As we have already noted in relation to Germany’s Federal Constitutional Court, some judges have the power to rule that a law should become invalid only if it has not been appropriately amended by a particular date. South Africa’s Constitutional Court adopts the same practice.59 In countries where a priori constitutional review is permitted, that is, where a law approved by legislators can be submitted to a court for a review of its constitutionality before it comes into force, a decision, which declares part or all of the law to be unconstitutional, will buy the government time to correct matters before any real damage is done to the nation’s constitutional integrity. Ireland has adopted this practice,60 but unfortunately sullies it by also adopting the rule that if a law’s constitutionality has been approved at this preliminary stage it cannot later be challenged even if previously unforeseen circumstances come to light calling its constitutionality into question.61 France is another country whose 1958 Constitution allows a priori review,62 but in 2008 it introduced a posteriori review as an additional safeguard.63 As well as constitutional constraints, judges can turn to principles derived from equality and human rights law when interpreting legislation dealing with terrorism. Thus, to many people’s surprise, in 2004 the House or Lords relied upon the principle of equality, or at any rate of non-discrimination, to help support its view that a counter-terrorism measure entailing indefinite detention without trial was unacceptable because it could be applied only to non-UK nationals.64 Any UK judge can declare secondary legislation to be invalid if it is incompatible

57 58 59 60 61 62

63 64

Bank Mellat v HM Treasury (No 1) [2013] UKSC 38. Bank Mellat v HM Treasury (No 2) [2013] UKSC 39. First used in S v Ntuli 1996 (1) SA 1207 (CC); the suspensory order was later enforced in Minister of Justice v Ntuli 1997 (3) SA 772. Constitution of Ireland 1937, Art 26. Ibid, Art 34.3.3. O Dutheillet de Lamothe, ‘French legislation against terrorism: constitutional issues’ (2006). Available at: www.conseil-constitutionnel.fr/conseil-constitutionnel/root/bank_mm/pdf/Conseil/ constitutionalterrorism.pdf accessed 3 November 2014. www.ajk.elte.hu/file/annales_2012_04_Xavier.pdf accessed 15 February 2015. See A (n 11) and S Fredman,‘From deference to democracy: the role of equality under the Human Rights Act 1998’ (2006) 122 Law Quarterly Review 53. 125

Brice Dickson

with European Convention rights.65 Senior UK judges can also declare primary legislation to be ‘incompatible’ with European Convention rights, but this declaration does not render the legislation invalid.66 More generally, judges have an extensive array of interpretative principles at their disposal if they wish to temper the apparent harshness of a counter-terrorism law. In the UK, New Zealand and Hong Kong, judges are required to interpret legislation in a way that makes it compatible with human rights standards if possible.67 In common law countries, judges do not necessarily need to wait for guidance from legislators before being able to deal with what they see as unfairness or injustice, even in the field of counter-terrorism. The ‘abuse of process’ doctrine is a good illustration of common law inventiveness in this context. It was deployed in the English case of R v Mullen, where a man had been deported from Zimbabwe to England so that he could be tried for conspiring to cause explosions on behalf of the IRA. Seven years into the thirty years sentence he received for that crime, he successfully appealed to the Court of Appeal on the basis that his deportation from Zimbabwe had not been in compliance with the extradition treaty, which existed between those two countries.68 In the words of Rose LJ, the ‘blatant and extremely serious failure to adhere to the rule of law’ was enough to outweigh ‘the immense degree of public revulsion which has, quite properly, attached to the activities of those who have assisted… the IRA’.69 The same doctrine was more recently applied in R v Downey,70 where the prosecution of a man in London for his alleged involvement in the planting of an IRA bomb in that city in 1982 was ordered by the judge to be stopped because it had come to light that, six years before his arrest in 2013 while he was in transit through London’s Gatwick Airport, he had been sent a letter (which was materially inaccurate) stating that ‘[t]he Police Service of Northern Ireland are not aware of any interest in you from any other police force in the United Kingdom’.71 The prosecution chose not to appeal this decision. It demonstrates how rigorous judges can be in upholding the rule of law even in a terrorist context. At the international level, a distinction has to be drawn between international courts that have a criminal jurisdiction and those that have only a human rights jurisdiction. Of the former, the best examples are the International Criminal Court (in The Hague), the International Criminal Tribunal for the Former Yugoslavia (also in The Hague) and the International Criminal Tribunal for Rwanda (in Arusha in Tanzania), but there are also other special courts with an international dimension in countries such as Bosnia-Herzegovina and Senegal. In so far as these courts are considering ‘war crimes’, it might be thought that they are irrelevant to a book on law and terrorism. However, the definition of war crimes now embraces many actions that (if the context were not one of ‘international armed conflict’, as defined by the Geneva Conventions on the laws of war) coincide with those which are familiar from the context of terrorism (in ‘non-international conflicts’). To date, the jurisprudence of international criminal

65 66 67

68 69 70 71 126

Human Rights Act 1998, s 3(2). Hence, in the A case (n 11) the House of Lords invalidated the Human Rights Act 1998 (Designated Derogation) Order 2001, SI 2001/3644. Ibid, s 4. The senior judges are listed in s 4(5); they include those who sit in main appellate courts and the Supreme Court. Ibid, s 3(1); New Zealand Bill of Rights Act 1990, s 6; Hong Kong Bill of Rights 1991, s 4. In New Zealand and Hong Kong the rights in question are those in the UN’s International Covenant on Civil and Political Rights. R v Mullen [2000] QB 520. Ibid, at 535G-H. [2014] EW Misc 7 (CCrimC). Ibid, [123].

Terrorism laws and legal accountability

courts has been more concerned with rules relating to evidence and fair trials than with rules regarding the scope of particular offences. Nevertheless, the potential for those courts to play a much greater role in holding terrorists legally to account for their actions is significant. In 2014, the second person ever to be convicted by the International Criminal Court was Germain Katanga, a rebel militia leader from the Democratic Republic of Congo, who was sentenced to 12 years’ imprisonment for aiding and abetting war crimes involving the murder of hundreds of villagers in 2003.72 International courts with a human rights jurisdiction have a different role to play, first, because under the current approach adopted in international treaties, only states can be held to account for human rights violations and, second, because human rights courts merely determine whether human rights have been violated and what remedy should be provided to the victims, not whether any particular individual or institution should be punished for those violations. There is nothing in principle to prevent states from agreeing treaties whereby nonstate actors can be held to account for their terrorist actions, or from extending existing treaties to ensure that human rights courts can declare what punishment would be appropriate in certain cases. Already the Inter-American Court of Human Rights has been inventive in suggesting what steps should be taken in the aftermath of state involvement in human rights violations,73 and the ECtHR has begun to insist that if a killing or ill-treatment is to be properly investigated the investigation must be directed at holding someone to account under the criminal law.74 The excellent commentary by Salinas de Frías75 demonstrates that it is in relation to the right to liberty (Article 5 of the ECHR) that the relevant jurisprudence of the ECtHR has most to say in the context of counter-terrorism. At the EU level, the Court of Justice in Luxembourg has also proven that it is well aware of fundamental human rights. As well as the judgments in Kadi I and II, already mentioned, the Court of Justice of the European Union (CJEU) in Digital Rights Ireland Ltd v Ireland 76 held that the Data Retention Directive 2006/24/EC was in violation of the EU’s Charter of Fundamental Rights in that it disproportionately interfered with individuals’ rights to respect for private life and protection of personal data. The Court observed, for example, that the Directive ‘does not lay down any objective criterion by which the number of persons authorised to access and subsequently use the data retained is limited to what is strictly necessary in the light of the objective pursued’.77

Judicial ‘no-go’ areas relating to counter-terrorism Judges are not elected officials, the system for appointing them is in many countries not as transparent as it ought to be, and the individuals who are appointed are inevitably limited in their understanding of security risks, technological advances, economic factors and political

72 73 74 75 76

77

Available at: www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/pages/pr 1008.aspx accessed 3 November 2014. Burgorgue-Larsen and Úbeda de Torres (n 27) Chs 26 and 27. Jeli v Croatia, App No 57856/11, 12 June 2014. A Salinas de Frías, Counter-Terrorism and Human Rights in the Case Law of the European Court of Human Rights (Council of Europe, Strasbourg, 2012). Joined Cases C-293/12 and C-594/12, 8 April 2014. This decision led the UK government to rush emergency legislation through Parliament in July 2014 in the form of the Data Retention and Investigatory Powers Act 2014. Ibid [62]. 127

Brice Dickson

considerations. All of this suggests that there are certain matters that should never be submitted to judges, who should instead be restricted to handling ‘legal’ disputes. In the US the doctrine of the ‘political question’ allows some issues to escape judicial scrutiny altogether,78 while in Ireland there is a good deal of case law on what amounts to ‘the administration of justice’, which by the country’s 1937 Constitution is the exclusive preserve of the courts.79 During the apartheid era in South Africa, on the other hand, lawyers had to politicise themselves in order to make headway against the oppressive regime.80 In the UK, judges have been particularly reluctant to consider whether the government has made a ‘legally correct’ decision to send troops to war,81 or to change the nature of its relationship with a foreign government.82 In the context of deciding whether, in order to justify a derogation from the ECHR, there was under Article 15 ‘a public emergency threatening the life of the nation’, the House of Lords gave ‘great weight’ to ‘the judgment of the Home Secretary, his colleagues and Parliament’, since ‘[i]t is the function of political not judicial bodies to resolve political questions’.83 Even at the level of international courts, certainly in the espace européen within which the ECHR holds sway, judges are generally reluctant to express views on whether a government is facing a national emergency. This was asserted in the first substantive judgment ever issued by the ECtHR itself, Lawless v Ireland.84 Since then the ECtHR has never ruled that a state was wrong to say that there was a public emergency threatening the life of the nation,85 but it has occasionally ruled that the measures taken as a result of the derogation provision were unjustified in the circumstances.86 Likewise, in most countries, judges are not trusted to specify what economic and social policies should be adopted, even when denial of economic and social rights is allegedly a contributing factor to the occurrence of terrorism. The ECtHR adopts a similar position to assessments of ‘general’ policies,87 but has not yet been asked to make such an assessment in the context of counter-terrorism measures. Sandra Fredman has argued that

78

79 80 81 82 83 84 85

86 87

128

K Hall (ed.), The Oxford Companion to the Supreme Court of the United States (2nd edn, Oxford University Press, Oxford, 2005) sub nom ‘Political Questions’; JP Mulhern, ‘In defense of the political questions doctrine’ (1988) 137 U Pennsylvania Law Review 97. Art 34.1, which should be read with Art 37.1. See R Byrne and JP McCutcheon, The Irish Legal System (5th edn, Bloomsbury, Haywards Heath, 2009) 111–25. R Abel, Politics by Other Means: Law in the Struggle Against Apartheid, 1980–1994 (Routledge, London, 1995). R (Gentle) v The Prime Minister [2008] UKHL 20. M Shaw, International Law (6th edn, Cambridge University Press, Cambridge, 2008) 454–9. A v Secretary of State for the Home Dept [2004] UKHL 56 at [29] (per Lord Bingham); Lord Hoffmann, famously, took the opposite view: see [88]-[97]. App No 332/57, 1 July 1961, (1979–80) 1 EHRR 15. Though in what is called the first Greek case, the European Commission of Human Rights did reject the Greek government’s claim that there was at the relevant times a public emergency threatening the life of the nation: Denmark, Norway, Sweden, The Netherlands v Greece App No 3321/67, (1969) 12 Ybk of the ECHR 1. The case did not proceed to the ECtHR. Aksoy v Turkey, App No 21987/93, (1997) 23 EHRR 553; A v UK, App No 3455/05, (2009) 49 EHRR 29 (confirming the House of Lords’ decisions in both of the A cases (n 11)). The Court constantly repeats ‘the fundamentally subsidiary role of the Convention’; it recognises that national authorities have direct democratic legitimation and are ‘in principle better placed than an international court to evaluate local needs and conditions… In matters of general policy, on which opinions within a democratic society may reasonably differ widely, the role of the domestic policy-maker should be given special weight’. See Hatton v UK, App No 36022/97, (2003) 37 EHRR 28 (GC) [97]; SAS v France, App No 43835/11, 1 July 2014 (GC) [129].

Terrorism laws and legal accountability

judges should be allowed to adjudicate on economic and social rights ‘to the extent that courts can contribute to strengthening democracy through human rights’.88 One of the most contentious concepts in the context of legal accountability regarding terrorism is that of ‘national security’. At the core of the concept is the idea that people need to be sure that they can go about their daily lives without an undue fear of being killed. It is for that reason that sometimes the police are given special powers; that defendants are not told how evidence presented against them has been collected; that terrorist suspects are subjected to restrictions on their movements; and that asylum seekers from certain areas of the world may be denied asylum.89 In the eyes of most politicians, national security is probably a matter that should not be judicialised: the idea that judges should be able to decide what can or cannot be allowed to occur in the name of national security is anathema, since judges are simply not equipped to make a properly informed assessment of the risks involved. In the UK a compromise approach has been adopted whereby senior judges (sometimes retired) are appointed as ‘Commissioners’ to oversee the activities of operatives working to preserve national security.90 Being themselves security-vetted to the highest level, these judge-commissioners can examine all documents and produce reports on whether the operatives are at all times acting in accordance with the law. But these reports are themselves too sensitive to be disclosed in full to the general public, or even to other bodies appointed to hold the operatives to account (such as police authorities or commissioners), so doubts will always remain as to whether the judge-commissioners are performing their tasks as objectively and as effectively as they would if they were acting ‘judicially’. Serving or retired judges are also sometimes asked to conduct sensitive inquiries ex post facto into matters involving national security, prominent examples being Lord Denning’s inquiry into the Profumo affair,91 Judge Peter Cory’s inquiries into collusion in Northern Ireland92 and the recently announced inquiry by Sir Robert Owen into the murder of Alexander Litvinenko in London in 2006.93 Generally speaking such inquiries tend to be perceived as operating legitimately and effectively, but they too are not

88 89 90

91

92

93

Human RightsTransformed: Positive Rights and Positive Duties (Oxford University Press, Oxford, 2008) Ch 4 (‘Justiciability and the Role of Courts’), at 92. On this last point see C Harvey, ‘And fairness for all? Asylum, national security, and the rule of law’, in Ramraj and others, (n 52) Ch 8. There are Surveillance Commissioners, including a Chief Surveillance Commissioner, appointed under the Police Act 1997, s 91, and an Interception of Communications Commissioner and Intelligence Services Commissioner, appointed under the Regulation of Investigatory Powers Act 2000, ss 57 and 59, respectively. The Profumo Affair (Cmnd 2152, London, 1963). This inquiry was criticised for being conducted entirely behind closed doors; it helped to prompt the creation of a Royal Commission on Tribunals of Inquiry, chaired by Lord Salmon (Cmnd 3121, London, 1966). Six reports on a total of eight murders were delivered to the UK government by retired Canadian Supreme Court Judge Peter Cory in 2003. See: http://cain.ulst.ac.uk/issues/collusion/ accessed 3 November 2014. This inquiry was established after an application for judicial review successfully overturned the UK government’s decision to hold only an inquest, at which no evidence of alleged involvement in the killing by the Russian state could have been presented: R (Litvinenko) v Secretary of State for the Home Dept [2014] EWHC 194 (Admin). 129

Brice Dickson

immune from criticism because of the assumption that state security agencies have a way of concealing the truth even from judicial inquiries if they really wish to do so.94

Conclusion The role of judges in counter-terrorism is a multi-faceted one, but the central feature which they should display when fulfilling the role is a commitment to ensuring that laws already in place are being applied fairly and that any defects or gaps in the laws are highlighted. Terrorism cannot be countered in the absence of judges, and their role is crucial to winning support for measures taken by law-makers to keep the public safe. While there may be a limit to what the law can do to ensure that those working in the counter-terrorism field are effective in their endeavours and yet adhere to human rights standards, legal accountability in this field remains a sine qua non for democracy.

94

130

For a survey of abnormal forms of interventions that can help to achieve a state of ‘constitutional governance’ in times of emergencies, see CP Walker, ‘The commodity of justice in states of emergency’ (1999) 50 Northern Ireland Legal Quarterly 164, a sequel to the same author’s ‘Constitutional governance and special powers against terrorism’ (1997) 35 Columbia Journal of Transnational Law 1.

Part II

The pursuit of terrorists through national criminal justice process and executive measures

This page intentionally left blank

9 Surveillance powers and the generation of intelligence within the law Simon McKay and Jon Moran

Introduction Intelligence, defined as ‘information [that] is gathered and analysed, sometimes secretly, and then used to understand a particular situation and act with advantage in it’,1 is increasingly important to law enforcement and security. First, it is evident that intelligence gathering is a requirement for the disruption of individuals and organisations engaged in serious criminal activity or political violence.2 Intelligence allows for the gathering of information on the scope and operations of such groups and, when in the form of information from informants, may provide knowledge of their perceptions and intentions. Some of this intelligence may go on to be the basis for the gathering of evidence to be used in criminal proceedings.3 Other intelligence may be used for the purpose of incapacitation measures, such as detention without trial. Intelligence may also be used for disruption activities, preventing attacks, undermining criminals’ confidence, incapacitating weapons, disrupting finances and so forth.4 Second, these complex functions of intelligence, operating ‘in the shadows’ beyond arrest, charge and prosecution, raise the matter of accountability. It is necessary that intelligence does not become a ‘black box’ within which police and security agencies can act with impunity. This seemed at

1 2

3

4

A Rolington, Strategic Intelligence for the 21st Century (Oxford University Press, Oxford, 2013) 17. By one estimate approximately 70 terrorist attacks have been disrupted from 2001 to 2013. Not all of these were disrupted by dedicated intelligence action. P Worrall, ‘Fact Check: The Terror Plots that Failed’ (Channel 4, 28 May 2013). Available at: http://blogs.channel4.com/factcheck/ factcheck-the-terror-plots-that-failed/13574 accessed 20 October 2014. Covert recording by devices planted in private residences has played a role in a number of convictions for terrorism. To give two recent examples, Irfan Naseer, Irfan Khalid and Ashik Ali, convicted of engaging in acts preparatory to terrorism: ‘Birmingham terror plot could have been “another 7/7”’ (Birmingham Mail, Birmingham 21 February 2013); Zahid Iqbal, Mohammed Sharfaraz Ahmed, Umar Arshad and Syed Farhan Hussain convicted of engaging in acts preparatory to terrorism ‘Luton terror plot: four jailed over plan to bomb army centre’ (The Guardian, London, 18 April 2013). J Moran,‘Evaluating Special Branch and the Use of Informant Intelligence’ (2010) 25(1) Intelligence and National Security 1. 133

Simon McKay and Jon Moran

times to be the position of the UK Security Service (MI5) in the 1960s and 1970s, the Royal Ulster Constabulary Special Branch in the 1970s and the Special Demonstration Squad in London and similar units elsewhere in the 1980s and 1990s5 and has re-emerged recently following the activities of rogue undercover police officers, in cases like R v Barkshire.6 Third, though it is therefore necessary to use the law to regulate intelligence activities, there is a danger that the law is either too broad, too vague or even too restrictive (the latter is not the case in the UK). The relationship of the law to surveillance has been thrown into stark relief by the revelations that have resulted from the Edward Snowden leaks. Snowden, an administrative officer with the NSA, obtained and released to journalists a massive amount of data that itself showed the full scale of US technological surveillance of national and international communications. The debates, which resulted from the material Snowden leaked, highlighted a number of important points. The first was the relationship of surveillance to the law – were the gigantic surveillance operations of the NSA and GCHQ actually lawful? Second, if they were, had the law (in this case of the US) become merely a rubber stamp, which confirmed the legality of disproportionate state powers? Third, what was the purpose of these programmes of data gathering? Were they to be used to provide evidence in a legal forum such as a criminal court? Or were they to be used for other activities such as the disruption of terrorist activities? These three issues: the legality of surveillance, the proportionality of surveillance and the use of surveillance products will be dealt with in this chapter.

Surveillance, intelligence and the law: The historical context The British state has had an interesting relationship to surveillance. Spies and informers have long performed an important role in protecting the state and thus the basic condition of liberty in England as far back as the sixteenth century. The regime of Queen Elizabeth I was engaging in a struggle for national survival vis-à-vis imperial Spain, and the effective use of spying was an integral part of success. The use of a network of spies and turncoats took place in an effective state of emergency. But intelligence was gained through blackmail, torture and entrapment.7 This episode was somewhat forgotten, and British culture, particularly in terms of the seventeenth-century English ideas of liberty and later English and Scottish Enlightenment philosophy, had a supposed mistrust of the power of state security. England set itself apart from Europe in particular after the French Revolution. The English apparently had a love of liberty, one of the reasons they detested not only spies but any sort of regular police force with statutory powers: ‘In England the idea of a uniformed body of policemen patrolling the streets to prevent crime and disorder was anathema. Such a force smacked of the absolutism of continental states.’8 The English relied instead on a strict penal code for the maintenance of security and liberty rather than an army of ‘police’ (the very term being French in origin). However, this often standard narrative of English liberty hides some tensions. Following the French Revolution, in England, Prime Minister William Pitt, in the name of countering subversion, had ‘militia regiments [that] were spread out across the country and barracks

5 6 7 8 134

P Lewis and R Evans, Undercover: The True Story of Britain's Secret Police (Faber and Faber, London, 2013). [2011] EWCA Crim 1885. A Haynes, The Elizabethan Secret Services (History Press, Stroud 2009); S Alford The Watchers: A Secret History of the Reign of Elizabeth I (Penguin, London 2013). C Emsley Crime and Society in England 1750–1900 (Longman, London, 1996) 217.

Surveillance powers and the generation of intelligence

erected in almost every substantial centre of population’.9 In addition, through surveillance by government agents and the widely framed laws of treason and sedition,10 Pitt’s government was able to prevent revolution and crush domestic agitators for parliamentary reform, a period known as the ‘terror’. This led to debate as to whether Pitt’s real motive had been in fact to use the powers of the state to crush those aiming to reform the deeply corrupt system of parliamentary government then operating in the country.11 Whatever the case, as Vic Gattrell sets out, ‘in inflammatory times juries were packed, spies employed, show trials arranged, aged radicals pilloried, men and women easily hanged, traitors decapitated… liberties, rule of law and public opinion notwithstanding’.12 Similarly networks of spies were also important abroad. In the existential struggle against Napoleon’s Revolutionary forces, various British agencies used intelligence to undermine Napoleon, a period perhaps most memorably captured in fiction, in the historical novels of Patrick O’Brien.13 Domestic political dissent did return to England, ironically in the period after Napoleon had been defeated:‘During the thirty or so years following the victory of Waterloo and the end of the [Napoleonic] wars… popular politics meant radicals organising mass meetings, mass demonstrations and petitions, seriously threatening constitutional confrontation.’14 However violence did not result. Emsley argues this was due to the culture of moderation in England,15 although it might be the case that bursts of state violence and the effective employ of informers when necessary also played a role. For example, in combatting the Chartist movement in the first half of the nineteenth century, local authorities in England used the surveillance services of informers and agent provocateurs. Their evidence was used in courtrooms in which the rules of evidence and procedures were then further bent to secure convictions.16 In this context, the emergence of dedicated policing and surveillance organisations took some time and the first developments in this area were not aimed against subversion. In the mid-eighteenth century the Bow Street Runners, a unit of only six officers, was established to tackle criminals and crime ‘proactively’ as we would term it today. Small though they were, the Bow Street Runners were the precursor to the modern detective organisation. As Barrell points out: Much of the runners’ business could be done locally, not only in the streets but in the ‘flash houses’ of the area, the particularly disreputable pubs where they bought drinks (on expenses) for themselves and for their ‘noses’, the informers whose names they would never reveal in court. But they ranged all over the city, and developed a deep and wide knowledge of the geography of crime. They got to know the London pawnbrokers, not only the out-and-out fences, but the more or less honest ones who might tip them off if

9 10 11 12 13

14 15 16

J Barrell, ‘To Stir Up The People’ 36(2) London Review of Books 17. The Treason Act 1795 and the Seditious Meetings Acts 1795. Barrell, ‘To Stir Up The People’ (n 9). V Gattrell The Hanging Tree: Execution and the English People 1770–1868 (Oxford University Press, Oxford, 1996) 531. The first novel in the series is P O’Brien, Master and Commander (Harper, London, 2002). For factual accounts see E Sparrow, Secret Service: British Agents in France, 1792–1815 (Boydell, Martlesham, 1999); M Urban, The Man Who Broke Napoleon’s Codes (Harper Collins, New York, 2001). C Emsley, The English and Violence since 1750 (Hambledon Continuum, London, 2005) 121. Ibid, 122. C Lewis, ‘Samuel Holbery: Chartist Conspirator or Victim of a State Conspiracy?’ (2009) 3(1) Crimes and Misdemeanours 109. 135

Simon McKay and Jon Moran

they were offered pledges they thought might be dodgy. As the runners became better known in the underworld, they occasionally needed to adopt disguises. Sometimes they detected crime by inviting it: on occasions when it was proving hard to catch highwaymen operating on the main roads into London, they would hire coaches or post-chaises in the hope of being held up.17 Already we have some of the controversy about surveillance and the law set out here, even before the advance of technology: whether there should be surveillance at all by state authorities even in the cause of security, whether state authorities should use informers and whether surveillance is connected to controversial uses of the law (such as entrapment). Indeed, concerns about the threat to liberty, along with a complex political context, meant that by the midnineteenth century there was a reluctance to employ even plainclothes detectives after the formation of the uniformed Metropolitan Police in 1829 since this raised the spectre of ‘Continental’ undercover spies ‘and the recollection of the spies and secret agents employed against English Jacobins and Regency Radicals remained painful’.18 It took until the late-nineteenth century/early-twentieth century for a permanent architecture of intelligence to be erected by the British state. The violent activities of Irish nationalists met a response in 1883 with the development of a ‘surveillance police’ within the Metropolitan Police, the Irish Special Branch, who also focused on the rise of anarchism.19 The Special Branch harassed anarchists in England, and their main success was in recruiting informants, which fuelled paranoia in anarchist networks. Indeed ‘a large proportion of the most incendiary figures in the anarchist movement’ were in fact Special Branch informants, leading one Chief Inspector to argue that the informer ‘is very apt to drift into an agent provocateur in his anxiety to secure a conviction.’20 In the (in)famous Walsall case, convictions under the Explosives Act 1883 were secured for members of an anarchist bomb-making network. But the group had effectively been established by Auguste Coulon, a Special Branch informer, and the Special Branch officer in charge of the case, who had a close relationship with Coulon, was excused by the judge from having to answer defence questions on this relationship.21 In 1909, the next phase in the development of intelligence agencies saw the establishment of the Secret Service Bureau, a non-police body with strong military links designed to gain intelligence on German espionage activity in the UK. It was at this time a tiny organisation and would not develop into the major organisation, MI5, until later, similarly with the Secret Intelligence Service (MI6).22 Following the 1917 Russian Revolution, both Special Branch and MI5 focused on communism or communist sympathisers, and ‘the remarkable feature of the state response to communism was its relative informality’ but the absence of legal coverage for surveillance activities and the use of paid informants23 did not prevent prosecutions of

17 18 19 20 21 22 23

136

J Barrell, ‘Something for Theresa May to Think About’ (2012) 34(11) London Review of Books 31. Emsley, Crime and Society in England (n 8) 236. T Bunyon, The Political Police in Britain (Quartet, London, 1977) 102–20. A Butterworth, The World That Never Was: A True Story of Dreamers, Schemers, Anarchists and Secret Agents (Vintage, London, 2011) 310–12. Ibid 292–9. For semi-official histories, see C Andrew, The Defence of the Realm (Allen Lane, 2009); K Jeffrey, MI6:The History of the Secret Intelligence Service 1909–1949 (Bloomsbury, 2010). K Ewing and C Gearty, The Struggle for Civil Liberties. Political Freedom and the Rule of Law in Britain 1914-1945 (Oxford University Press, Oxford, 2001) 112–8.

Surveillance powers and the generation of intelligence

communists for sedition or offences under the Defence of the Realm Acts 1914 or Emergency Powers Act in the 1920s.24 Further, the Second World War fuelled the expansion of both civilian and military intelligence and what would become GCHQ, followed by the technological innovations of signals and communications surveillance in the post-1945 period.25 One problem in this incremental growth appears to have been the lack of legal coverage of intelligence activities; intelligence became separated from the law, probably because the law was assuming a more ‘civilised’ form. Certainly, as the system of law became more regularised and professionalised during the nineteenth century, intelligence came to be seen as important both within the UK and in Britain’s imperial possessions,26 but there was an absence of law pertaining to national security. The powers of maintaining a standing army and taxation without parliamentary approval were stripped from the state by the Glorious Revolution of 1688, leaving vague prerogative powers mainly concerned with war and state security.27 It took the First World War for the first of the Defence of the Realm Acts 1914 to be passed.28 To be sure, there was legislation covering the interception of mail from as early as 1711 and of the telegraph via the Telegraph Act 1868.29 But Home Secretaries such as Winston Churchill developed a pattern of using the law – or its lack of coverage – to extend surveillance. To avoid public controversy he as Home Secretary used existing powers or powers that could be expanded without the need for legislation. For example, instead of using specific warrants that permitted the opening of one letter he issued general warrants, which allowed the opening of all the mail of an individual or organisation. These general warrants were granted to MI5 who used them not just against suspected German sympathisers but against left-wing activists and the suffragette movement.30 With regard to telephone tapping,‘since no offence of interference with telephone messages existed before 1985 it was conducted up to 1937 without even the authorisation of a warrant’, and tapping was only officially acknowledged in 1952.31 GCHQ appears to have turned to the surveillance of domestic communications as well as foreign in the 1970s without any debate or authorisation, presumably because of pressures relating to subversion and political extremism.32 In terms of the use of informants, any development took place ‘on the ground’, and as Sir Desmond de Silva QC’s report into the murder of Northern Irish solicitor, Patrick Finucane, made clear, ‘there was a wilful and abject failure by successive governments to provide the clear policy and legal framework necessary for agent-handling operations to take place effectively and within the law’.33 It was not until the 1990s that the use of general and intrusive surveillance techniques began to be covered by a formal legal framework via the Police Act 1997 and the Regulation of Investigatory Powers Act 2000

24 25 26

27 28 29 30 31 32 33

Ewing and Gearty (n 23) 94–95 and 105–6. R Aldrich GCHQ (Harper Collins, London 2010). C Walton, Empire of Secrets: British Intelligence, the Cold War and the Twilight of Empire (Harper Collins, London, 2013); M Thomas, Empires of Intelligence: Security Services and Colonial Disorder After 1914 (University of California, Berkley, 2007). See A Blick,‘Emergency powers and the withering of the Royal Prerogative’ (2014) 18 International Journal of Human Rights 195. L Lustgarten and I Leigh, In From the Cold: National Security and Parliamentary Democracy (Clarendon Press, Oxford, 1994) 324–7. Ibid 53. D Stafford, Churchill and Secret Service (Abacus, London, 2001) 44–5. Lustgarten and Leigh (n 28) 53. Aldrich (n 25) 343–4.These pressures found expression in P Wright, Spycatcher (Viking, NewYork, 1987). Rt Hon Sir D de Silva, The Report of the Patrick Finucane Review (2012–13, HC 802-I). 137

Simon McKay and Jon Moran

(RIPA 2000),34 but these were in response to either an adverse decision in Strasbourg35 or anticipated human rights compliance concerns.36 The same was true of organisational developments. The development of MI5 (1909) and MI6 and the Government Code and Cipher School (GCCS) (1919) took place without law setting out the surveillance powers of the agencies and their relationship to the law. The activities of the GCCS and its successor GCHQ were not even officially revealed to the public until the 1970s,37 and MI5’s existence was not legally acknowledged until the Security Service Act 1989. MI6’s existence and powers were not modernised in legal terms until the Intelligence Services Act 1994. In this way, the basic debates about surveillance, the production of intelligence from it and the law were finally established. First is the idea of what powers the state should have to carry out surveillance against individuals. Second is the relationship of intelligence produced by surveillance to the formal legal arena. Third is the purpose of the intelligence generated: is it to disrupt subversive activities or to provide evidence? Fourth are the risks inherent in merging intelligence and evidence, an area incisively researched in the light of the war on terror.38 The next sections will deal with these themes in the contemporary context.

State surveillance: The legal framework RIPA 2000 has been hailed as placing state surveillance on a statutory basis for the first time in UK law. This is inescapably true, but it is important to scratch below the surface of such statements and explore what the legislation in fact provides in terms of surveillance powers and of protections for the individual from state misuse. In relation to the former, it is clear that the government of the day did not envisage that RIPA 2000 provided for new forms of covert investigative techniques but that these ‘will be properly regulated by law and externally supervised’.39 This is not strictly accurate, since Part I provided for a new and modernised interception of communications regime40 and the acquisition and disclosure of communications data.41 But in respect of other forms of surveillance, it appears to be a correct statement of legal principle. Support for it can be found in one of the first judgments of the Investigatory Powers Tribunal (IPT), C v Police and the Secretary of State.42 In that case, the then President, Lord Justice Mummery, held that ‘surveillance by public authorities is not of itself unlawful at common law, nor does it necessarily engage Article 8 of the [European] Convention [on Human Rights].’43

34

35 36 37 38

39 40 41 42 43 138

I Leigh,‘Accountability of Security and Intelligence in the United Kingdom’ in H Born, L Johnson and I Leigh (eds) Who’s Watching the Spies. Establishing Intelligence Service Accountability (Potomac, Dulles, 2005). Y Akadeniz, N Taylor and C Walker,‘Regulation of Investigatory Powers Act 2000 (1): BigBrother. gov.uk: State surveillance in the age of information and rights’ [2001] Criminal Law Review 73. S McKay, Covert Policing: Law and Practice (Oxford University Press, Oxford, 2011) 5. Aldrich (n25) 354. Any legal basis awaited the Intelligence Service Act 1994, s 3. C Walker,‘Intelligence and Anti-terrorism Legislation’ (2005) 44(4–5) Crime, Law and Social Change 387; C Walker, ‘Keeping control of terrorists without losing control of constitutionalism’ (2007) 59(5) Stanford Law Review 1395-464; C Walker, ‘Neighbor terrorism and the all-risks policing of terrorism’ (2009) 3 Journal of National Security Law & Policy 121. Hansard, HC, Vol 345, col 767 (Mr Straw, then Home Secretary). The RIPA 2000 Act repealed the Interception of Communications Act 1985, which formally regulated this activity. RIPA 2000, Part I, Chapter 2. IPT/03/32/H. Ibid [42].

Surveillance powers and the generation of intelligence

Nor is the RIPA 2000 a preferential legislative regime.44 There are circumstances where certain forms of surveillance can, at least in theory, amount to an offence: the misuse of the data acquired can be an offence under section 55 of the Data Protection Act 1998 or the pursuit of a course of conduct that alarms or causes distress may be contrary to the Protection from Harassment Act 1997, for example, but these are likely to be extremely rare, if not apocryphal. There is a view from respected commentators that using false profiles on social networking sites may also amount to an offence.45 Deceptive conduct may also constitute a tort, a point raised in AKJ and others v The Commissioner of Police for the Metropolis and others,46 following the revelations about the ‘rogue’ undercover police officer, Mark Kennedy.47 An individual may also bring a claim under the Human Rights Act 1998 for a declaration that a public authority has breached their rights to protection from arbitrary interference with their private and family life. However, where the surveillance has been properly authorised under the RIPA 2000, it will be lawful for all purposes48 other than where the conduct engaged in is a breach of a fundamental right.49 There is also a general saving for lawful conduct set out in section 80 of the RIPA 2000. Tugendhat, J in the AKJ case considered that the scope of section 80 was limited to only that which amounts to lawful conduct and which does not require authorisation but accepted the distinction between conduct that is lawful if authorised and that which is otherwise lawful raised ‘difficult issues’.50 The matter was not tested further in the subsequent appeal.51 Looking for some source of state power to carry out surveillance other than the unlawful interception of communications yields little and may explain why commentators and jurists, including the late Lord Bingham, expressed concern that the UK was ‘sleepwalking’ into a surveillance society.52 Insofar as the RIPA 2000 is concerned with regulating surveillance, other than where the activity would amount to an offence if not authorised under its provisions, it is no more than a ‘voluntary scheme of self-authorisation’.53

44 45 46 47

48 49 50 51 52

53

R (on the application of NTL) v Ipswich Crown Court [2002] EWHC 1585 (Admin). M O’Floinn and D Ormerod,‘Social Networking Sites, RIPA and Criminal Investigations’ [2011] Criminal Law Review 10, 766–9. [2013] EWHC 32 (QB). From 2003 to 2010 Mark Kennedy worked as an undercover police officer infiltrating environmental activist networks. He became deeply involved with activists and had intimate relationships with a number of female activists. Following pre-emptive police arrests on a group of activists who were planning to break into the Ratcliffe-on-Soar power station and following the trespass convictions that resulted Kennedy’s role came to light. P Lewis and R Evans, ‘Mark Kennedy: A journey from undercover cop to ‘bona fide’ activist’, The Guardian (London, 10 January 2011). His activities led to an inquiry into covert policing which recommended improvements to authorisation (including a tighter definition of proportionality), handling and review. HMIC A review of national police units which provide intelligence on criminality associated with protest (HMIC, London 2012). S 27. AKJ (n 46). Ibid 167. [2013] EWCA Civ 1342. T Bingham, The Rule of Law (Penguin, London, 2010) 155. The phrase is that of the then Information Commissioner, Richard Thomas (R Ford,‘Beware rise of Big Brother state, warns data watchdog’ The Times (London, 16 August 2004). See also House of Lords, Select Committee on the Constitution, Surveillance: Citizens and the State (2008-09 HL 18-I). C v Police and Secretary of State, IPT/03/32H. 139

Simon McKay and Jon Moran

The Intelligence Services Act 199454 and Police Act 199755 provide some immunity from criminal liability and civil suit for authorised interference with property, but this activity is not surveillance but rather involves the means by which a surveillance device may be installed. Furthermore, the basis for the activities of the three intelligence agencies could not be more vague: each is entitled to obtain information ‘in the proper discharge of its [statutory] functions’.56 The Intelligence Services Commissioner,57 a retired senior judge, oversees these arrangements by way of highly selective audits. This ambiguity in the exercise of their powers entitled the Secretary of State, after the Snowden revelations emerged, to make public statements that GCHQ had at all times acted ‘in accordance with the law’.58 But this was a gross over-simplification of the legal position. The lack of any delineation of the boundaries of the acquisition of information by intelligence agencies other than by reference to their own subjective assessment of whether they consider it is necessary to do so is a self-fulfilling test of legality. The government’s position is reminiscent of WH Auden’s judge in the poem ‘Law, Like Love’ who opined,‘Law is as I’ve told you before/Law is as you know I suppose/Law is but let me explain it once more/Law is The Law’. The question of legal certainty – that is the degree to which the law is sufficiently clear so that the public are able to reasonably foresee the circumstances when government may be justified in carrying out surveillance – will be a key issue both before the IPT59 and in the ECtHR60 when the applications brought by various interest groups in the aftermath of Snowden’s leaks are heard. What emerges from this broad and loose legal framework is that there is in fact little control of state surveillance other than the interception of communications, but even this is open to abuse as the Snowden leaks make clear. It is perhaps remarkable that the purported legal basis for the mass harvesting of data in secret between the UK and the US was a single subsection of the RIPA 2000,61 which does not define in any meaningful detail the circumstances under which ‘external communications’ may be intercepted but rather what the content of warrants, disclosure of which is prohibited, must provide. The legality of this framework is also now the subject of a communicated challenge in Strasbourg.62 The lack of accountability to the state has also recently been the subject of concern. Complaints can be made to the IPT – a largely secret court - but with negligible prospects of success, the Tribunal finding against the government in less than 1 per cent of cases.63 Oversight is primarily through the work of the Intelligence Services Commissioner,64 a retired senior judge, who oversees these arrangements by way of highly selective audits, the Interception of Communications Commissioner65 and the Intelligence and Security Committee (ISC)66 with 54 55 56 57 58

59 60 61 62 63 64 65 66 140

S 5. S 92. Security Service Act 1989, s 2(2) and Intelligence Services Act 1994, ss 2(2) in respect of the Secret Intelligence Service and 4(2) in respect of GCHQ. RIPA 2000, s 59(1). W Hague,‘Our Intelligence Agencies Practise and Uphold UK Laws at all times, even when dealing with information from outside the UK’. Available at: www.gov.uk/government/speeches/foreignsecretary-statement-to-the-house-of-commons-gchq accessed 20 October 2014. Privacy International and others v GCHQ and others, IPT/13/92/CH. Big Brother Watch and others v The United Kingdom, App No 58170/13, 4 September 2013. S 8(4). Big Brother Watch (n 60). House of Commons Home Affairs Committee, Counter-terrorism (2013–14, HC 231). RIPA 2000, s 59(1). RIPA 2000, s 57(1). Intelligence Services Act 1994, s 10.

Surveillance powers and the generation of intelligence

uninformative annual reports the usual outcome. The ISC was overhauled in the Justice and Security Act 2013, which included provision for making it a Committee of Parliament rather than a body reporting to the Prime Minister and expanding its terms of reference so as to include oversight of operational activity and the wider intelligence and security activities of Government. The ISC has claimed it now enjoys increased powers,67 but it is difficult to see where these in fact exist since such powers it may have to review operational matters are for all practical purposes subject to the intelligence agencies’ voluntary consent to release information;68 insofar as the powers relate to non-operational matters they are subject to a veto if sensitive or if they may touch on matters of national security.69 The future of accountability of the security agencies can be perhaps foretold to some extent by reference to the public comments of its chairman, Sir Malcolm Rifkind, who on 8 May 2014 gave a speech to Oxford University where he said: Unfortunately, the insidious use of language such as ‘mass surveillance’ and ‘Orwellian’ by many of Mr Snowden’s supporters to describe the actions of Western agencies blurs, unforgivably, the distinction between a system that uses the state to protect the people, and one that uses the state to protect itself against the people.70 This speech, which appears to conflate legitimate public concerns about the extent of the state’s surveillance activities with those who are aligned to Mr Snowden, may haunt the ISC’s claim to independence in the future for two reasons. First, it was followed by publication of the statement by Charles Farr, the Director General of the Office for Security and Counter Terrorism, which was prepared for the purposes of the government’s response to the IPT application by Privacy International and others. In it he appeared to accept that searches of Google, YouTube, Twitter, and Facebook posts could be intercepted under section 8(4) of RIPA 2000, although would only be examined if the requirements of section 16, the arrangements under which, which Mr Farr confirmed, could not be made public,71 were met. The term ‘mass surveillance’ appears to be entirely apposite in light of Farr’s concessions. Second, if either the IPT or ECtHR find against the UK on either application, Sir Malcolm’s judgment may be seriously impugned.72

67 68 69 70

71

72

Under the Justice and Security Act 2013. See ‘About the Committee’. Available at: http://isc.independent.gov.uk accessed 13 February 2015. Justice and Security Act 2013, s 2(3)(c). Justice and Security Act 2013, Sch 1, 4(4)(a)(i). Sir M Rifkind, ‘Intelligence Agencies in the Internet Age – Public Servants or Public Threat?’ (Wadham Lecture, 8 May 2014, Wadham College, Oxford). Available at: www.wadham.ox.ac.uk/ news/2014/may/intelligence-agencies-in-the-internet-age accessed 2 October 2014. The statement can be found on the Privacy International website. Available at: www.privacy international.org/sites/privacyinternational.org/files/downloads/press-releases/witness_st_of_ charles_blandford_farr.pdf accessed 20 October 2015. This gives further support to the idea that during its history the Intelligence and Security Committee has lacked bite and independence. See M Phythian, ‘The British Experience with Intelligence Accountability’ (2007) 22 Intelligence and National Security 75. 141

Simon McKay and Jon Moran

Introducing intelligence into the legal arena Given the breadth of the definition of ‘intelligence’ which was set out at the outset of this chapter,73 it follows that it includes covert as well as overt material although, importantly, the Court of Appeal has held that the acquisition of overt material can, when it is retained without limit, amount to a disproportionate interference with privacy.74 Its relationship to the formal legal arena is interesting. On the one hand, classic statements of evidence are apposite, such as ‘the evidence of a fact is that which tends to prove it – something that may satisfy an inquirer of the fact’s existence’.75 On the other, enigmatic statements by the Court of Appeal serve only to confuse: ‘the prosecution may only adduce evidence which is relevant to proof of guilt… charges have to be based on admissible evidence and, for this purpose police intelligence is not admissible evidence’.76 Resolving this dichotomy is central to attempting to understand the role of intelligence as evidence. Its value as a disruptive resource seems clear from the limited information government is prepared to share with the public about such matters.77 The website of the MI6, for example, also publicly acknowledges its value in the work that it does.78 But the general proposition remains, as with all information that may be capable of being admitted as evidence, that intelligence is presumptively admissible, unless it is inadmissible by virtue of the application of some law or is held to be inadmissible by a judge on an application to exclude it or of his or her own motion. On the face of it, the product derived from the use of all surveillance resources is admissible, other than material expressly excluded from legal proceedings usually because of unfairness or unreliability.79

The interface of intelligence with legal proceedings and the protections against misuse The popular perception is that one exception to the general presumption of admissibility relates to material obtained as a result of the interception of communications, but this claim needs some qualification. Section 17 of RIPA 2000 creates a prohibition that ‘no evidence shall be adduced, question asked, assertion or disclosure made or other thing done’ that, amongst other things, discloses or tends to suggest an intercept warrant was issued or reveals the content of intercepted communication. However, not all interceptions are the subject of a warrant. If one party to the communication consents to the interception, it is admissible too if it is an interception that constitutes a legitimate practice reasonably required for the purpose of carrying on any business. An anomaly also exists in the case of telephone conversations where the communication, even if intercepted, is also recorded after it has left the handset by some other surveillance resource (such as an in-car listening device). Although qualitatively the nature of the intrusion is the same, the former is subject to the prohibition, whilst the latter is

73 74 75 76 77 78 79 142

A Rolington (n 1). R (Wood) v Commissioner of Police for the Metropolis [2009] EWCA Civ 414. C Tapper, Cross & Tapper on Evidence, (12th edn, Oxford University Press, Oxford, 2010) 1. R v Dawson [2007] EWCA Crim 822 (emphasis added). S Laville, ‘MI5 Chief says 34 terror plots disrupted since 7/7 attacks’ (The Guardian, London, 7 November 2013). Available at: www.sis.gov.uk/about-us/what-we-do/counter-terrorism.html accessed 20 October 2015. See Police and Criminal Evidence Act 1984 (PACE), ss 76, 78.

Surveillance powers and the generation of intelligence

prima facie admissible.80 Intercept product may be disclosed in certain circumstances before a panel of inquiry.81 Foreign intercept product is also admissible.82 The inherent weakness of RIPA 2000 as a form of policing surveillance outside the terms of an authorisation is clear from the range of decisions where even serious breaches have not resulted in the exclusion of the evidence obtained.83 This has included evidence of police officers deliberately misleading the court. The issue was considered most recently in the case of Khan, Mahmood and Kajla v R,84 applying the earlier decision of the Lord Chief Justice in Plunkett v R.85 The following principles can be distilled from the case. First, covertly recorded evidence is in principle admissible but can be excluded under sections 76 or 78 of Police and Criminal Evidence Act 1984 (PACE).86 Second, the ECtHR, in its decision in Khan v United Kingdom,87 also made clear that despite a breach of Article 8 of the ECHR, the central question was whether the proceedings as a whole were fair. Third, the Strasbourg cases have consistently held that issues of admissibility of evidence obtained unlawfully are for the national courts to decide based on principles of fairness. Fourth, section 78 of PACE was concerned with the fairness of the trial not with providing a remedy for a breach of Article 8 (per Lord Hobhouse in R v P).88 Fifth, ‘fairness’ of the criminal trial process overall is now the touchstone of the law in this area. In unhesitatingly agreeing with the trial judge’s decision to admit the evidence in principle, the Court of Appeal held that a breach of Article 8 says nothing about the fairness of the proceedings. A breach of Article 8 per se cannot be the basis for the court to exclude the evidence.89 An application to stay proceedings will only arise in exceptional circumstances and is unlikely to be a remedy afforded to a defendant where the Crown seeks to admit the fruits of unlawful surveillance. 90

Blurring the lines between intelligence and evidence Walker has opined that ‘[the] trend towards legalism in the intelligence field is desirable: law is a necessary condition for constitutionalism’.91 The conflation of intelligence and evidence causes ineluctable and significant constitutional concerns. These are both substantive: Walker’s ‘four modes’ (assessments, assisting prosecutions, disruption and surveillance designed to control crime and terrorism covertly and overt control measures92) and procedural: ensuring due process exists with appropriate safeguards, even if there has to be some derogation from established fair trial rights because of public interest considerations. 80 81 82 83 84 85 86 87 88 89 90 91 92

R v E [2004] Cr App R 29. Inquiries Act 2005, Sch 2, paras 20–1. See also Terrorism Prevention and Investigation Measures Act 2011, Sch 7 para 4. R v P [2002] 1 AC 146. See by way of examples: R v Button and Tannahill [2005] EWCA Crim 516 and R v Harmes and Crane [2006] EWCA Crim 928. [2013] EWCA 2230. [2013] EWCA Crim 261. Ibid, per Sir John Thomas LJ, as he then was, [51]. The Times, 23 May 2000. [2002] 1 AC 146. See further NW Taylor and DC Ormerod,‘Mind the Gaps: Safety, Fairness and Moral Legitimacy’ [2004] Criminal Law Review 266. R v Maxwell [2010] UKSC 47. C Walker, ‘Keeping Control of Terrorists’ (n 38) 1456. C Walker, ‘Intelligence and anti-terrorism legislation in the United Kingdom’ (n 38) 389. 143

Simon McKay and Jon Moran

The vulnerability of intelligence to abuse is a trite statement. It can take the form of retrospective manipulation to justify poor decision-making at one end of the scale and its ‘cavalier dismissal’ at the other.93 There are three examples of where the absence of procedural safeguards can risk and has caused serious injustice. These are pre-emptory applications, such as obtaining arrest or search warrants, the prosecution of offences and control measures. The essence of the problem consists of difficulties associated with disclosure or misuse of intelligence. In relation to the first of these in R (on the application of BSkyB Limited) v The Commissioner of the Police of the Metropolis,94 the Metropolitan Police persuaded the court to hold a secret hearing in order to secure a production order based on intelligence that did not relate to the appropriate legal test. In quashing the production order the court held: The information sworn in support of the application did not contain any evidence tending to indicate that either suspect was either a member of the security or intelligence services or had been formally notified that he was subject to the provisions of section 1(1) of the 1989 [Official Secrets] Act and, despite requests from BSkyB for clarification, no case to that effect was ever advanced at the hearing. Nor, despite the references in the information to military operations at home and abroad, did the Commissioner seek to establish that there were grounds to suspect an offence under sections 2 (defence) or 3 (international relations). In the end, therefore, it all came down to section 1(3) and the critical questions were whether there were reasonable grounds to suspect that there had been a disclosure of information relating to security or intelligence that might cause damage to the work of, or to any part of, the security or intelligence services, or a disclosure of the kind of information that would be likely to cause such damage or which fell within a class or description of information the unauthorised disclosure of which would be likely to have that effect.95 The legacy of the activities of undercover police officer Mark Kennedy, who infiltrated protest groups on the understanding he would be ‘intelligence only’, has resulted in two sets of convictions being quashed by the court of appeal on the grounds of material non-disclosure of Kennedy’s role as a possible agent provocateur.96 The Lord Chief Justice encapsulated the problems caused in the following terms: Something went seriously wrong with the trial. The prosecution’s duties in relation to disclosure were not fulfilled. The result was that the appellants were convicted following a trial in which elementary principles which underpin the fairness of our trial processes were ignored. The jury were ignorant of evidence helpful to the defence which was in the possession of the prosecution but which was never revealed. As a result justice miscarried.97

93 94 95 96

97 144

D Phillips, B Caless and R Bryant,‘Intelligence and its application to contemporary policing’ (2007) 1(4) Policing 439. [2011] EWHC 3451 (Admin). Ibid [33]. R v Barkshire [2011] EWCA Crim 1885. See further See further HMIC, A Review of National Police Units which provide intelligence on criminality associated with protest (London, 2012); House of Commons Home Affairs Committee, Undercover Policing: Interim Report (2012–13 HC 837); Mick Creedon, Operation Herne: Report 1—Use of Covert Identities (MPS, London, 2013) and Operation Herne Operation Trinity: Report 2—Allegations of Peter Francis (MPS, London, 2014); K Hyland and C Walker, ‘Undercover policing and underwhelming laws’ [2014] Criminal Law Review 555. Ibid [1].

Surveillance powers and the generation of intelligence

The Court held that there was a failure by the Crown to make proper disclosure of material relating to the role and activities of Kennedy, as well as of materials which had the potential to provide support for the defence case or to undermine the case for the prosecution relating to possible allegations of entrapment and in any event they had the capacity to support the defence of necessity and justification.98 It also later emerged that an undercover officer had infiltrated those close to the family of murdered teenager Stephen Lawrence99 and others had engaged in ghoulish activities, such as adopting the names of dead children for example.100 These abuses led to the Home Affairs Select Committee recommending a comprehensive review of the RIPA 2000.101 Finally, there are the hearings that take place in secret before tribunals such as, but not limited to, the Special Immigration Appeals Commission where the important ingredient of public accountability is missing. These hearings can result in deportation of persons whose presence in the UK is considered a threat to its security. In cases where deportation is not an option for legal reasons, individuals may be subject to a Terrorism Prevention and Investigation Measures order if certain conditions are met.102 The principal condition is that the Secretary of State reasonably believes the individual is or has been involved in terrorism. This is a standard of proof much lower than either the criminal or civil standard and has been the subject of criticism103 as has the imposition of intrusive restrictions on individuals who have not been convicted of an offence and the use of closed material proceedings.104 The Joint Committee on Human Rights expressed the view that the order ‘may be withering on the vine as a counterterrorism tool of practical utility’ and recommended a broader review of counter-terrorism powers.105 In summary, the last two years have resulted in an emerging new epoch of undercover policing across the panoply of surveillance resources. This has been prompted by state abuse at the hands of the government’s intelligence machine and individual police officers. In the end, like Joseph K in Kafka’s The Trial, society is left ruminating that ‘it is not necessary to accept everything as true, one must only accept it as necessary’.

Conclusion Intelligence, properly defined and managed, continues to have an important role to play in tackling contemporary terrorism, just as it has had historically. However this chapter has argued that the relationship of intelligence to the law raises clear issues of the use of state power, public security and accountability. The RIPA 2000, the principal legislation covering this area, has been shown to be wanting in terms of both clarity and purpose. To be sure, the RIPA 2000

98 99 100 101 102 103 104 105

Ibid [31]. M Ellison QC, The Stephen Lawrence Independent Review, (2013–14 HC 1038). Evans and Lewis (n 5) 110. Home Affairs Committee, Undercover Policing: Interim Report (2012–13 HC 837). Terrorism Prevention and Investigation Measures Act 2011. See further Chapters 15 (Kremnizer and Saba) and 22 (Vladeck and Walker) in this book. See, for example, the comments of Lord Panick in Hansard, HL Vol 730, col 1169 (5 October 2011). D Anderson QC, Terrorism Prevention and Investigation Measures in 2012 (Home Office, London, 2012). Post-Legislative Scrutiny: Terrorism Prevention and Investigation Measures Act 2011 (2013–14, HL 113, HC 1014). 145

Simon McKay and Jon Moran

has provided some legal structure for intelligence activities where it was patchy or non-existent before. However the concerns that were raised at the start of this chapter are still extant. They include the actual relationship of intelligence gathering to the law (both domestically and in the context of the ECHR), the areas in which it may be used, the absence of meaningful accountability and the increasingly important relationship between intelligence and evidence. As this chapter has shown, there are acute problems of legal certainty with regard to the RIPA 2000’s relationship to mass surveillance (or dataveillance as Chapter 10 terms this phenomenon). This is exacerbated by the self-serving legislative structures surrounding the activities of the intelligence agencies. Recent controversies concerning undercover policing underscore the weaknesses in understanding intelligence, the legal framework and efficacy of supervisory structures. In connection with this is the hazy definition of extremism which seems in the minds of some state agents to occupy part of the spectrum leading inexorably to terrorism and which justifies a wide approach to surveillance.106 Linked to this there are issues with the accountability of intelligence-gathering procedures. The accountability system in the UK with regard to intelligence and the fairness of court proceedings is vulnerable and may be subject to further adverse decisions in Strasbourg. The melding of intelligence and evidence in both investigative and legal terms, and the failures on the part of government, oversight bodies or the courts to confront the difficulties caused, further cloud the issues.

106

146

‘In the absence of a tighter definition, Association of Chief Police Officers (ACPO) and the Home Office should agree a definition of domestic extremism that reflects the severity of crimes that might warrant this title, and that includes serious disruption to the life of the community arising from criminal activity. This definition should give sufficient clarity to inform judgements relating to the appropriate use of covert techniques, while continuing to enable intelligence development work by police even where there is no imminent prospect of a prosecution.’ HMIC A review of national police units which provide intelligence on criminality associated with protest (HMIC 2012) Recommendation 2, page 12.

10 Dataveillance and terrorism Swamps, haystacks and the eye of providence Stuart Macdonald

Introduction In today’s ‘pre-crime’1 society it is easy to understand the appeal of a technology that promises to identify terrorist plots and stop attacks before they happen, even when the would-be perpetrators have never previously attracted the attention of the authorities or aroused any suspicion (‘unknown unknowns’, in Rumsfeldian terminology).2 Such claims are not merely the stuff of Hollywood movies such as Minority Report or TV shows like Person of Interest. Mass dataveillance programmes, which have been the subject of much discussion and controversy since the Edward Snowden revelations of 2013,3 now claim to offer this degree of predictive potential. Existing literature on dataveillance programmes and their regulation commonly urges the importance of striking a balance between the competing demands of protecting national security and respecting individuals’ privacy, notwithstanding the fact that the flaws of this approach have been well-documented.4 For a start, when the issue is approached in this way it tends to end up being viewed as our security versus their (suspected terrorists’) liberty.5 This is 1 2 3 4

5

L Zedner, ‘Pre-crime and post-criminology?’ (2007) 11 Theoretical Criminology 261. Department of Defence News Briefing. Available at: www.defense.gov/transcripts/transcript.aspx? transcriptid=2636 accessed 12 February 2002. See G Greenwald, No Place to Hide: Edward Snowden, the NSA and the U.S. Surveillance State (Metropolitan Books, New York, 2014). R Dworkin,‘The threat to patriotism’ NewYork Review of Books (New York, 28 February 2002) 44; R Dworkin, ‘Terror and the attack on civil liberties’ New York Review of Books (New York, 6 November 2003) 37; J Waldron, ‘Security and liberty: the image of balance’ (2003) 11 Journal of Political Philosophy 191; L Zedner, ‘Securing liberty in the face of terror: reflections from criminal justice’ (2005) 32 Journal of Law and Society 507; C Michaelsen, ‘Balancing civil liberties against national security? A critique of counterterrorism rhetoric’ (2006) 29 University of New South Wales Law Journal 1; S Macdonald, ‘Why we should abandon the balance metaphor: a new approach to counterterrorism policy’ (2008) 15 ILSA Journal of International and Comparative Law 95; S Macdonald,‘The unbalanced imagery of anti-terrorism policy’ (2009) 18 Cornell Journal of Law and Public Policy 519. D Cole, Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism (The New Press, New York, 2003); Waldron (n 4); Zedner, ‘Securing Liberty in the Face of Terror’ (n 4). 147

Stuart Macdonald

certainly true in discussions about dataveillance, where it is common to assume that the privacy interests of law-abiding citizens are not at stake, since the authorities will not be interested in their data, while suspected terrorists have no legitimate privacy interests.6 When the liberty side of the equation is perceived in this way, and contrasted with bold predictions of the potential security gains which dataveillance has to offer, the balance can only tip in one direction. Before jumping to questions of balance, however, it is essential first of all to assess thoroughly the security and privacy interests that are at stake.7 That is the aim of this chapter. The chapter begins with an explanation of what ‘dataveillance’ means and an evaluation of its effectiveness as a counter-terrorism tool, focusing specifically on pattern-based queries. As we will see, not only are there reasons to doubt the efficacy of this predictive technique, it also risks significant opportunity and collateral security costs. The second half of the chapter examines different views of what privacy means in this context and of its importance, arguing that privacy is often understood too narrowly and is given insufficient weight. Having examined the security and liberty interests independently, the chapter concludes by offering a more nuanced view of what it means to balance these interests in this context.

Dataveillance Dataveillance and its use in counter-terrorism Record-keeping is not new. In the sixth century BC, Servius instituted a census in the Roman Empire.8 The Domesday Book, which covered much of England and parts of Wales, was completed in the eleventh century on the orders of William the Conqueror.9 Modern-day censuses have been conducted in many countries, including the US, UK, Canada, France and Germany, since the nineteenth century.10 But in recent years there has been a surge in the quantity of information that is collected and stored. Three developments in particular have contributed to this trend.11 First are increases in computer power. Over the past four decades Moore’s Law – which predicts that computer chip capacities will double roughly every two years – has proved to be quite accurate.12 Thanks to this exponential growth, storage capacities are now measured in zettabytes and yottabytes, not bytes and megabytes.13 Second are decreases in data storage costs. In 1984, it cost roughly US$200 to store a megabyte of data. By 1999 the cost had decreased to seventy-five cents.14 Today it is possible to buy a one terabyte (one trillion bytes) hard drive for significantly less than US$100. Third, a wider range of actors are now

6 7 8 9 10 11 12 13 14 148

DJ Solove,‘“I’ve got nothing to hide” and other misunderstandings of privacy’ (2007) 44 San Diego Law Review 745. Macdonald ‘Why We Should Abandon the Balance Metaphor’ (n 4). PA Zoch, Ancient Rome: An Introductory History (University of Oklahoma Press, Norman, 2000). FW Maitland, Domesday Book & Beyond: Three Essays in the Early History of England (Cambridge University Press, Cambridge, 1987). H Alterman, Counting People:The Census in History (Harcourt, Brace & World, New York, 1969). These developments were anticipated by the Lindop Report: Report of the Committee on Data Protection (Cmnd 7341, London, 1978). P Rosenzweig, ‘Privacy and counter-terrorism: the pervasiveness of data’ (2010) 42 Case Western Journal of International Law 625, 627. A zettabyte (ZB) is 1,0007 bytes. A yottabyte (YB) is 1,0008 bytes. By contrast, a megabyte is 1,0002 bytes. Rosenzweig (n 12) 628.

Dataveillance and terrorism

interested in gathering personal data.15 Surveillance is not just for totalitarian regimes. Democratic governments have also invested heavily in surveillance technologies, particularly in the years since 9/11. There are even private data brokers – such as Acxiom and PrivateEye – which collect personal data and then sell it on the basis of claims such as, ‘At PrivateEye.com we have access to millions of public records all in one spot!’16 In fact, Acxiom estimates that it holds on average approximately 1,500 pieces of data on each adult in the US.17 Since government and law enforcement are amongst these companies’ most important clients, they have been dubbed ‘Big Brother’s Little Helpers’.18 These developments have led one commentator to describe data as ‘the perspiration of the Information Age’.19 Today, an astonishing array of information is collected and stored, including: contact information (postal addresses, phone numbers, email addresses); emergency contact information; educational records; library records; financial records (including credit and debit card use); communications data (including phone numbers dialled, originating numbers; and the time and duration of calls); online searches; websites visited; retailer records; tax records; immigration records; drivers’ licence information; vehicle registration records; health information; criminal records; and, flight bookings. Moreover, this list will grow still longer over the coming years thanks to the development of smart objects, such as vehicles and home appliances. This socalled ‘Internet of Things’ may enhance personal convenience, but it will also subject ‘more and more previously unobservable activity to electronic measurement, observation, and control’.20 Information databases have been used in a number of contexts. An example from the field of public health is Google’s ‘Predict and Prevent’ initiative in 2008, which sought to match online search query patterns with the actual occurrence of influenza.21 The aim of such ‘disease surveillance’ is proactively to identify hotspots where diseases may emerge in order to enable an earlier response to potential outbreaks. Meanwhile, marketers have been using information databases for targeted marketing campaigns since the 1970s.22 Companies organise and sort their master-lists of customers, then identify and profile the most profitable ones and use the profile to hunt for other similar customers. In 2012, an article in the New York Times told of a marketing campaign by the superstore, Target, which had targeted pregnant women.23 A data analyst was quoted as saying, ‘We knew that if we could identify them in their second trimester, there’s a good chance we could capture them for years… As soon as we get them buying diapers from us, they’re going to start buying everything else too.’24 The analyst had been given

15 16 17 18

19 20 21

22 23

24

NM Richards, ‘The Dangers of Surveillance’ (2013) 126 Harvard Law Review 1934. Available at: www.privateeye.com accessed 9 May 2014. Rosenzweig (n 12) 631. CJ Hoofnagle, ‘Big brother’s little helpers: how ChoicePoint and other commercial data brokers collect and package your data for law enforcement’ (2004) 29 North Carolina Journal of International Law and Commercial Regulation 595. DJ Solove,‘Privacy and power: computer databases and metaphors for information privacy’ (2001) 53 Stanford Law Review 1393, 1407. Richards (n 15) 1940. Google.org, ‘Predict and prevent: an initiative to help prevent local outbreaks of emerging disease from becoming pandemics’ (14 October 2008). Available at: www.google.org/Predict_Prevent_ Brief.pdf accessed 9 May 2014. Solove ‘Privacy and Power’ (n 19). C Duhigg, ‘How companies learn your secrets’ New York Times (New York, 16 February 2012). Available at: www.nytimes.com/2012/02/19/magazine/shopping-habits.html?ref=magazine accessed 10 May 2014. Ibid. 149

Stuart Macdonald

the task of constructing a pregnancy prediction model. The premise underlying this model was that women’s shopping habits change during pregnancy. The model assigned all female customers a pregnancy prediction score, based on customers’ purchases of 25 specific products. The model turned out to be fairly accurate, not only in telling whether or not a woman was pregnant but also in identifying the stage of her pregnancy. Women identified as pregnant were sent coupons timed to the specific stage of their pregnancy. The article went on to tell how one angry father, whose daughter had received coupons in the post, walked into a Target store outside Minneapolis, demanded to see the manager, and said to him, ‘My daughter’s still in high school, and you’re sending her coupons for baby clothes and cribs? Are you trying to encourage her to get pregnant?’The manager apologised, and a few days later phoned the father to apologise again. This time the father was rather embarrassed: ‘I had a talk with my daughter… It turns out there’s been some activities in my house I haven’t been completely aware of. She’s due in August. I owe you an apology.’ The degree of predictive potential offered by data analytics in these other contexts raises the question whether it could also be used as a counter-terrorism tool. There have certainly been some bold claims of its potential effectiveness. Some management consultants and IT specialists, for example, have asserted that if such techniques had been in use before 9/11 the attacks of that day may not have occurred.25 Indeed, following 9/11, the Pentagon launched the controversial Total Information Awareness (TIA) programme. This project, whose logo was the all-seeing Eye of Providence, proposed combining databases held by state and federal governments with private data held by companies like Acxiom to create ‘a new kind of extremely large, omni-media, virtually-centralized, and semantically-rich information repository that is not constrained by today’s limited commercial database products’.26 Network analysis would then be used to search for suspicious behaviour.27 The programme was fiercely criticised and, in 2003, the US Senate voted to cease its funding.28 Nonetheless, the legacy of TIA lives on. For example, across the US there is now a network of Fusion Centers whose stated goal is to detect and prevent all crimes and all hazards.29 As the following description illustrates, Fusion Centers are reminiscent of the TIA: Data-mining tools analyze a broad array of personal data culled from public- and privatesector databases, the Internet, and public and private video cameras. Fusion Centers access specially designed data-broker databases containing dossiers on hundreds of millions of individuals, including their Social Security numbers, property records, car rentals, credit reports, postal and shipping records, utility bills, gaming, insurance claims, social network activity, and drug- and food-store records. Some gather biometric data and utilize facialrecognition software. On-the-ground surveillance is collected, analyzed, and shared as well.30

25 26

27 28 29 30

150

L Amoore and M de Goede, ‘Governance, risk and dataveillance in the war on terror’ (2005) 43 Crime, Law & Social Change 149, 160. ‘EPIC Analysis of Total Information Awareness Contractor Documents’ (Electronic Privacy Information Center 2003). Available at: http://epic.org/privacy/profiling/tia/doc_analysis.html accessed 10 May 2014. J Rosen, ‘The naked crowd: balancing privacy and security in an age of terror’ (2004) 46 Arizona Law Review 607. Solove ‘“I’ve Got Nothing to Hide”’ (n 6). M German and J Stanley, What’s Wrong with Fusion Centers? (American Civil Liberties Union, Washington DC, 2007). DK Citron and D Gray, ‘Addressing the harm of total surveillance: a reply to Professor Neil Richards’ (2013) 126 Harvard Law Review Forum 262, 264.

Dataveillance and terrorism

Similarly, the documents leaked by Edward Snowden in 2013 revealed the existence of several extremely broad dataveillance operations: the Prism programme, which allows the NSA and FBI to collect materials including search history, emails, file transfers and live chats from nine leading US internet companies including Google, Facebook and Apple;31 the XKeyscore programme, which allows analysts to search through vast databases containing the emails, online chats and browsing histories of millions of individuals without prior authorisation;32 the Tempora programme, which uses intercepts from the fibre-optic cables to gain access to large amounts of internet users’ personal data;33 and, a secret court order under the USA PATRIOT Act, section 215, requiring Verizon to give the NSA information on all telephone calls in its systems, both within the US and between the US and other countries, on an ‘ongoing, daily basis’.34 Roger A Clarke, who first coined the term ‘dataveillance’ in the 1980s, draws a distinction between personal dataveillance and mass dataveillance.35 Personal dataveillance involves ‘subjecting an identified individual to monitoring’.36 In general, a specific reason will exist for the investigation or monitoring. By contrast, in mass dataveillance ‘groups of people are monitored in order to generate suspicion about particular members of the population’.37 In a co-authored article, the former Head of the Information Awareness Office, John Poindexter, who resigned in 2003 after the TIA programme lost funding,38 has argued that both types of dataveillance are necessary.39 He explains that two types of database searches/queries are possible. Subject-based queries start with known suspects and look for links to other suspects, people, places, things or suspicious activities. On the other hand, pattern-based queries look for patterns of activity indicative of a terrorist plot. The hypothesis is that: If terrorists plan to launch an attack, the plot must involve people (the terrorists, their financiers, and so forth). The transactions all these people conduct will manifest in databases owned by public, commercial and government sectors and will leave a signature – detectable clues – in the information space.40

31

32

33

34

35

36 37 38 39 40

G Greenwald and E MacAskill, ‘NSA Prism program taps in to user data of Apple, Google and others’ The Guardian (London, 7 June 2013). Available at: www.theguardian.com/world/2013/ jun/06/us-tech-giants-nsa-data accessed 10 May 2014. G Greenwald, ‘XKeyscore: NSA tool collects “nearly everything a user does on the internet”’ The Guardian (London, 31 July 2013). Available at: www.theguardian.com/world/2013/jul/31/nsatop-secret-program-online-data accessed 10 May 2014. E MacAskill, J Borger, N Hopkins, N Davies and J Ball ‘GCHQ taps fibre-optic cables for secret access to world’s communications’ The Guardian (London, 21 June 2013) www.theguardian.com/ uk/2013/jun/21/gchq-cables-secret-world-communications-nsa accessed 22 July 2014. G Greenwald, ‘NSA collecting phone records of millions of Verizon customers daily’ The Guardian (London, 6 June 2013).Available at: www.theguardian.com/world/2013/jun/06/nsa-phone-recordsverizon-court-order accessed 10 May 2014. See further LK Donohue, ‘Bulk Metadata Collection: Statutory and Constitutional Considerations’ (2014) 37 Harvard Journal of Law & Public Policy 757. RA Clarke, ‘Information technology and dataveillance’ (1988) 31 Communications of the ACM 498; C Clarke, ‘Profiling: a hidden challenge to the regulation of data surveillance’ (1993) 4 Journal of Law and Information Science 403. Clarke ‘Profiling’ (n 35) 403. Ibid 403. HC Bloch-Wehba, ‘Global governance in the information age: the terrorist finance tracking program’ (2013) 45 New York University Journal of International Law and Politics 595. R Popp and J Poindexter,‘Countering terrorism through information and privacy protection technologies’ [2006] IEEE Security & Privacy 18. Ibid 18–19. 151

Stuart Macdonald

Pattern-based queries seek to imagine and understand the signatures that terrorist plots will create and then use advanced search methods to find instances of these in the information space before the plots materialise. So, for example, a traveller who buys fertiliser and a one-way ticket and takes flying lessons might be tagged for further investigation.41 One of the claimed benefits of pattern-based queries is that terrorists will find it hard to engage in counter-surveillance: Furthermore, because the patterns relied on – particularly those that are computerdetected – will be non-obvious, terrorists will find it difficult to engage in counter-surveillance tactics. They will not know the patterns to avoid. Unless cash-only transactions were engaged in, a transactional signature would be unavoidable, even if that signature were distributed amongst proxies.42 The most important claimed benefit, however, is that pattern-based queries have the potential to identify individuals who have not yet aroused any suspicion: In the commercial context, these individuals are called ‘potential customers.’ In the terrorism context, they are often called ‘clean skins’ because there is no known derogatory information connected to their names or identities. In this latter context, the individuals are dangerous because nothing is known of their predilections. For precisely this reason, this form of data analysis is sometimes called ‘knowledge discovery,’ as the intention is to discover something previously unknown about an individual. There can be little doubt that data analysis of this sort can prove to be of great value.43 Whilst this argument may sound appealing, particularly given the fears of an indigenous threat that are evident in several chapters in this book,44 it is a double-edged sword. Pattern-based queries envisage ‘the State having broad access to many individuals’ personal information, when there is no basis for even a suspicion of wrong-doing’.45 This raises important questions about the privacy of individuals. Before considering these questions, however, it is important to first evaluate the likely effectiveness of pattern-based queries as a counter-terrorism tool.

The effectiveness of dataveillance as a counter-terrorism tool In its 2008 report, Protecting Individual Privacy in the Struggle Against Terrorists, the US National Research Council insisted that, when evaluating an information-based programme, the first task should be to assess its effectiveness: Too frequently the argument is heard that national security is too important and the terrorist threat too great to pause to ask hard questions of the systems to be deployed to protect the nation. In the committee’s view, that is the wrong approach. It is precisely

41 42 43 44 45 152

Rosen (n 27). WM Renke, ‘Who controls the past now controls the future: counter-terrorism, data mining and privacy’ (2006) 43 Alberta Law Review 779, 788. Rosenzweig (n 12) 632–3. See Chapters 3 (Llobet-Anglí and Masferrer), 13 (Melia and Petzche), 25 (Razak, Rehman, and Skolczylis) and 28 (Davis and Walker) in this book. Renke (n 42) 796.

Dataveillance and terrorism

because national security is important and the threats to it are great that it is so important to ensure that the systems to be deployed to protect the nation are effective and are consistent with U.S. values.46 This is undoubtedly correct. As one commentator has observed, ‘data mining and behavioral surveillance programs that fail the effectiveness test protect neither the nation’s privacy nor its security’.47 Unsurprisingly, security services are reluctant to disclose details of cases in which they claim that dataveillance has proved successful for fear that it will aid terrorist groups by revealing methods and capabilities. Nonetheless, in a speech in Berlin in June 2013, President Obama declared, ‘We know of at least 50 threats that have been averted because of this [NSA mass surveillance] information’.48 Similarly, in ACLU v Clapper, Judge Pauley claimed that ‘The effectiveness of bulk telephony metadata collection cannot be seriously disputed’, citing three examples taken from Congressional testimony.49 In sharp contrast, in Klayman v Obama, Judge Leon stated that ‘The Government does not cite a single instance in which analysis of the NSA’s bulk metadata collection actually stopped an imminent attack, or otherwise aided the Government in achieving any objective that was time-sensitive in nature’.50 He rejected the three examples cited by Judge Pauley, saying that none of them involved any apparent urgency. In fact, a detailed study of 225 cases involving individuals recruited by Al Qa'ida or similar groups and charged in the US with an act of terrorism since 9/11 concluded that surveillance of US phone metadata has ‘had no discernible impact on preventing acts of terrorism and only the most marginal of impacts on preventing terrorist-related activity, such as fundraising for a terrorist group’.51 It should also be noted that none of the three cases cited by Judge Pauley involved suspicionless pattern-based queries. In all three instances, the authorities were already investigating known suspects and only used metadata analysis to ensure that all of the suspect’s contacts had been identified. One of the principal difficulties with pattern-based queries is modelling. Terrorist conduct preceding an attack is likely to be designed to appear legitimate. So, unlike offences like credit card fraud, ‘it will not be outlier conduct in the midst of legitimate conduct, but apparently legitimate conduct in the midst of legitimate conduct’.52 Moreover, in the commercial context, analysts have enormous datasets from which to construct models. By contrast, successful terrorist attacks are relatively rare and so the evidential basis for constructing patterns is small.53 One response to this might be to target lower-level events that are commonly associated with

46 47 48

49 50 51 52 53

US National Research Council, Protecting Individual Privacy in the Struggle Against Terrorists: A Framework for Program Assessment (National Academies Press,Washington DC, 2008) 47. S Landau, ‘The NRC takes on data mining, behavioral surveillance, and privacy’ [2009] IEEE Security & Privacy 58, 58. J Calmes, ‘Obama Says Surveillance Helped in Case in Germany’ New York Times (New York, 19 June 2013). Available at: www.nytimes.com/2013/06/20/world/europe/obama-ingermany.html?_r=0 accessed 11 May 2014. 959 F Supp 2d 724 (USDC, SDNY) 755. 957 F Supp 2d 1 (USDC, DC) 40 (emphasis in the original). P Bergen, D Sterman, E Schneider and B Cahall; National Security Program, Do NSA’s Bulk Surveillance Programs Stop Terrorists? (New America Foundation,Washington DC, 2014), 1. Renke (n 42) 794. KA Taipale,‘Data mining and domestic security: connecting the dots to make sense of data’ (2003) 5 Columbia Science and Technology Law Review 1, 35. 153

Stuart Macdonald

terrorism and that occur more frequently, such as fund transfers and recruitment activities. However, since many of these activities are, in themselves, perfectly legal and may be carried out for purposes other than terrorism such an approach risks casting the net too wide.54 A further difficulty is that constructing models based on past attacks is reactive and so may miss innovative forms of attack. Pointing to the attacks of 9/11 as an example, the American Civil Liberties Union has argued that what is needed is not more information, but better use of existing information: ‘You don’t find a needle in a haystack by bringing in more hay’.55 In terms of pattern-based queries, more important than the volume of data per se is the knock-on effect on the number of false positives. False positives in this context are individuals who are wrongly deemed worthy of suspicion. So, in our earlier example, the aspiring pilot who purchases fertiliser might merely be ‘a retired businessperson who was a gardening aficionado’.56 Since pattern-based queries work ‘on the principle of draining the swamp to catch the snake’,57 an extremely high level of accuracy has to be achieved. Yet, not only are there the modelling difficulties outlined in the previous paragraph, there are also the problems caused by incomplete, incorrect, incomprehensible and inconsistent data (‘garbage in, garbage out’58) – which are exacerbated still further by the prevalence of identity theft and the difficulties that victims of this crime have trying to expunge prior convictions wrongly attached to them.59 Indeed, there are numerous examples of individuals being wrongly identified by data mining.60 When dealing with huge numbers of individuals, even extremely high accuracy rates result in large numbers of false positives: Out of an American-sized population of 250m, a 99.9 per cent level of accuracy in surveillance still means placing approximately 250,000 Americans at risk: even a 99.99 per cent level would still affect about 25,000 people, though the unacceptability of this politically might depend on which sectors they came from.61 Added to this problem is the possibility of false negatives (individuals who are wrongly deemed to not be worthy of suspicion). Experts concede that ‘the technical reality [is] that the number of false negatives can never be zero’.62 In the terrorism context, the likely number of false negatives is increased by the fact that many terrorists use privacy-enhancing technologies (such as anonymisation and encryption) and privacy-enhancing strategies (such as the use of cash and barter).63

54 55

56 57 58 59 60 61 62 63 154

Renke (n 42) 794. ‘Q&A on the Pentagon’s “Total Information Awareness” Program’ (American Civil Liberties Union 20 April 2003). Available at: www.aclu.org/technology-and-liberty/qa-pentagons-totalinformation-awareness-program accessed 11 May 2014. Rosen (n 27) 611. M Levi and DS Wall, ‘Technologies, security, and privacy in the post-9/11 European Information Society’ (2004) 31 Journal of Law and Society 194, 207. Renke (n 42) 791. SW Dummer, ‘False positives and secure flight using dataveillance when viewed through the ever increasing likelihood of identity theft’ (2006) 11 Journal of Technology Law & Policy 259. D Gray and D Citron, ‘The Right to Quantitative Privacy’ (2013) 98 Minnesota Law Review 62. Levi and Wall (n 57) 207. US National Research Council, Protecting Individual Privacy in the Struggle Against Terrorists (n 46) 40. Levi and Wall (n 57).

Dataveillance and terrorism

So even if pattern-based queries do have security benefits, which is contested, as we have seen, they may also have security costs. Resources and time could be spent investigating (large numbers of) false positives. Meanwhile, some false negatives may dangerously escape attention. In addition, depending on the features of the profile used, the false positives returned by a pattern-based query could include a disproportionate number of members from particular minority or ethnic groups. This has the potential to generate resentment and ill-feeling, particularly given the suspicionless nature of pattern-based queries. Empirical research in the UK has found that Muslim communities are more likely to resent counter-terrorism measures if they do not require individualised suspicion and are perceived as targeting whole communities.64 So, for example, the broad and indiscriminate use of powers like stop and search – and, by extension, mass dataveillance – are more likely to generate resentment than the use of individualised measures such TPIMs.65 This impact is at odds with the importance counter-terrorism strategies place on fostering community cohesion in order to make communities more resilient to radicalisation.66

Liberty, including privacy As noted above, pattern-based queries, which involve the State having access to mass personal information without any individualised suspicion, raise important questions regarding both the scope of privacy interests and the weight that should be attached to them.

What does protecting privacy mean in this context and is it important? Some have suggested that dataveillance does not raise issues of privacy at all. Judge Posner, for example, has emphasised the limited role human beings play in data-mining: [M]achine collection and processing of data cannot, as such, invade privacy. Because of their volume, the data are first sifted by computers, which search for names, addresses, phone numbers, etc., that may have intelligence value. This initial sifting, far from invading privacy (a computer is not a sentient being), keeps most private data from being read by any intelligence officer.67 Poindexter and Popp, meanwhile, define privacy even more narrowly. In their opinion, ‘personal privacy is only violated if the violated party suffers some tangible loss, such as unwarranted arrest or detention’.68

64 65

66 67

68

See DSTL,‘What perceptions do the UK public have concerning the impact of counter-terrorism legislation implemented since 2000?’ (Occasional Paper 88, Home Office, London 2010). Joint Committee on the Draft Enhanced Terrorism Prevention and Investigation Measures Bill, Oral Evidence Taken on Wednesday 24 October 2012. Available at: www.parliament.uk/ documents/joint-committees/Draft%20ETPIMS%20Bill/HC%20495%20iii%2024%20October% 202012%20Corrected.pdf accessed 12 May 2014, 4–5. See Home Office, CONTEST: The United Kingdom’s Strategy for Countering Terrorism (Cm 8123, London 2011) para 5.17. RA Posner, ‘Our Domestic Intelligence Crisis’ Washington Post (Washington DC, 21 December 2005). Available at: www.washingtonpost.com/wp-dyn/content/article/2005/12/20/ AR2005122001053.html accessed 16 May 2014. Popp and Poindexter (n 39) 24. 155

Stuart Macdonald

Others accept that issues of privacy do arise but argue that little weight should be attached to these concerns. Solove describes this as the ‘I’ve got nothing to hide’ argument.69 This perspective emphasises that mass dataveillance programmes are concerned only with those pieces of information that are likely to be useful in identifying behaviour that threatens national security. This means, first, that the vast majority of information that dataveillance programmes collect on law-abiding citizens will be innocuous, and, second, that the vast bulk of law-abiding citizens’ embarrassing or discreditable information is unlikely to be collected in the first place, since it is not the sort of data that dataveillance programmes are likely to collect. Moreover, even if some embarrassing information did happen to be collected, it will only be exposed to a few unknown officials at worst. These suggestions adopt an unduly narrow view of what privacy entails and overlook important concerns about the societal effects of mass dataveillance. Solove states that the ‘nothing to hide’ argument misses the point, because it assumes that privacy is only about ‘hiding bad things.’70 This tendency is exacerbated, he says, by the common use of the ‘Big Brother’ metaphor and references to George Orwell’s Nineteen Eighty-Four and Bentham’s Panopticon.71 Where dataveillance is concerned, ‘The most insidious aspect of the surveillance of Big Brother is missing in the context of databases: human judgment about the activities being observed (or the fear of that judgment).’72 Solove accordingly advances a broader taxonomy of privacy.73 Privacy interests not only encompass surveillance (information collection) and disclosure (information dissemination) – the problems that the nothing to hide argument focuses on – but also information processing: how information that has already been collected is handled. It is here that dataveillance raises particular concerns. The first set of concerns focuses on the aggregation of individuals’ data. Even if each discrete piece of information about an individual is not in itself something they would hide, ‘Wellestablished techniques in the field of information technology such as data-mining make it possible for those so-called meaningless bits zooming in and out of the ether of global networks and public and private databases to be quickly and inexpensively reassembled.’74 This ‘surveillant assemblage’75 could lead to far more being discovered about the individual than would be available by, for example, surveilling their movements.76 It is quite conceivable, then, that ‘by combining pieces of information we might not care to conceal, the government can glean information about us that we might really want to conceal’.77 Moreover, this information jigsaw piecing together may occur without the individuals’ knowledge or involvement.78 The individual may not have consented to their information being used in this way, may not know that their information is being used in this way and may not know how their data will be used in the future. Indeed, as the documents leaked by Snowden illustrate, individuals may not even know that the dataveillance programme exists. These issues of exclusion and secondary use of

69 70 71 72 73 74 75 76 77 78 156

Solove, ‘“I’ve Got Nothing to Hide”’ (n 6) 746. Ibid 764. Solove, ‘Privacy and Power’ (n 19). Ibid 1417. Solove, ‘A taxonomy of privacy’ (2006) 154 University of Pennsylvania Law Review 477. I Kerr and J McGill, ‘Emanations, snoop dogs and reasonable expectations of privacy’ (2007) 52 Criminal Law Quarterly 392, 416. KD Haggerty and RV Ericson,‘The surveillant assemblage’ (2000) 51 British Journal of Sociology 605. JA Gladstone, ‘A call from the panopticon to the judicial chamber “expect privacy!”’ (2006) 1 Journal of International Commercial Law and Technology 62. Solove ‘“I’ve got nothing to hide”’ (n 6) 766. Ibid.

Dataveillance and terrorism

individuals’ data raise questions of ‘technological due process’.79 The individual is broken down into a series of data flows and then reassembled. Individuals could find themselves red-flagged at airports80 or prevented from crossing borders81 on the basis of this ‘decorporealized body’.82 The exclusion of individuals from the process means that in practice it is very difficult to correct any errors in one’s virtual ‘data double’.83 These effects lead to a related concern: the disparity of power between individuals and the state. As the earlier example involving Target illustrated, data-driven marketing gives companies considerable power in relation to their customers. Marketers can sort consumers into categories and then allocate opportunities on the basis of this classification. But when this approach is applied in the counter-terrorism context, so that the state attempts to proactively identify individuals who pose a risk by detecting behaviour that is perceived as suspicious,‘The power of sorting can bleed imperceptibly into the power of discrimination’.84 This results in the construction of ‘suspect populations’.85 As Amoore and de Goede explain, such constructions rest ‘upon the representations of two worlds of globalisation: one populated by legitimate and civilised groups whose normalised patterns of financial, tourist and business behaviour are to be secured; and another populated by illegitimate and uncivilised persons whose suspicious patterns of behaviour are to be targeted and apprehended’.86 Moreover, using the example of the countering of terrorist finance and its effect on migrant communities, they explain that these two worlds are mutually reinforcing.87 To control the risk of terrorist financing post-9/11 tougher financial regulatory regimes were introduced and informal money transmitters were criminalised and suppressed. One effect of this was to deny migrants a relatively cheap and efficient method of sending money back to their families, forcing many to resort to cash transfers, notwithstanding the fact that cash itself was increasingly being regarded as suspicious. Amoore and de Goede thus conclude, ‘From downtown banking halls to city airport terminals, the techniques of dataveillance will continually inscribe and reinscribe a manufactured border between the licit and illicit worlds.’88 Lastly, mass dataveillance raises concerns about normalisation, in two respects. First, Richards has warned of the potential effect of the ‘normalizing gaze of surveillance’89 on individuals’ intellectual privacy. Surveillance, he argues, ‘inclines us to the mainstream and the boring’: [W]hen we are watched while engaging in intellectual activities, broadly defined – thinking, reading, websurfing, or private communication – we are deterred from engaging in thoughts or deeds that others might find deviant. Surveillance thus menaces our society’s foundational commitments to intellectual diversity and eccentric individuality.90

79 80 81 82 83 84 85 86 87 88 89 90

DK Citron, ‘Technological due process’ (2008) 85 Washington University Law Review 1249. SW Dummer, ‘Secure flight and dataveillance, a new type of civil liberties erosion: stripping your rights when you don’t even know it’ (2006) 75 Mississippi Law Journal 583. Amoore and de Goede (n 25) 159-61. Haggerty and Ericson (n 75) 611. Ibid 611. Richards (n 15) 1957. Levi and Wall (n 57) 200. For further discussion of the ‘suspect community’ thesis, see chapter 27 (Greer) in this book. Amoore and de Goede (n 25) 167-68. See also Chapter 16 (Sproat) in this book. Amoore and de Goede (n 25) 168. Richards (n 15) 1950. Richards (n 15) 1948. 157

Stuart Macdonald

Indeed, using data from Google Trends, a recent study of search terms from before and after the Snowden revelations has found substantial empirical evidence of a chilling effect, not only in respect of search terms that might be deemed suspicious but also ones that could be personally embarrassing.91 So, as well as privacy, mass dataveillance also raises issues of freedom of speech and expression. Furthermore, as mass dataveillance is routinised, people’s expectations of privacy will be eroded. The effect is that perspectives like the ones outlined at the start of this section, which define privacy narrowly and/or attach little weight to privacy concerns, become internalised and normalised. So, over time, people ‘will not recognize and no less expect, that privacy was once possible in that encroached area’.92 This observation is especially relevant to the Fourth Amendment to the US Constitution, whose protection of privacy is dependent on individuals’ expectations. It is to this point that we now turn.

Legal protection of the right to privacy The protection of privacy takes a number of different forms, ranging from domestic legislation93 to regional agreements94 and from sector specific regimes95 to overarching ones.96 The focus here is on the protection conferred by the Fourth Amendment to the US Constitution and Article 8 of the ECHR. These provisions not only inform the content of other legislative and regulatory regimes, but also their entrenched status is significant in the context of counterterrorism, where the temptation to erode the protection of rights is particularly strong. In the US, the principal source of protection for individuals’ privacy rights vis-à-vis the government is the Fourth Amendment. It guarantees a right against unreasonable searches and seizures and states that warrants may only be issued with probable cause. Importantly, for the purposes of the Fourth Amendment, a search occurs if the government violates a person’s reasonable expectation of privacy.97 The scope of this protection is diminished, however, by certain doctrines.98 The first is the public observation doctrine, according to which lawenforcement officers can freely make observations from any place where they lawfully have a right to be.99 So, for example, police officers may stand on the street and watch through open windows and may monitor movements on public roads.100 They may also use devices like binoculars and beeper-type trackers to enhance their observational abilities.101 The second is the

91 92 93 94 95

96 97 98

99 100 101 158

A Marthews and C Tucker, ‘Government Surveillance and Internet Search Behavior’ (SSRN, 24 March 2014) http://dx.doi.org/10.2139/ssrn.2412564 accessed 16 May 2014. Gladstone (n 76) 65. For example, the UK’s Regulation of Investigatory Powers Act 2000. For example, the Data Protection Directive (95/46/EC). Examples include the Communications Data Privacy Directive Directive 2002/58/EC (telecommunications) and the Agreement between the United States of America and the European Union on the use and transfer of Passenger Name Records to the United States Department of Homeland Security 2011 (2012 OJ L 215/5). For example, the UK’s Data Protection Act 1998. Katz v United States 389 US 347 (1967). In addition to those mentioned in the main text there is also the border search exception, which allows searches and seizures at international borders and their functional equivalent without a warrant or probable cause. See United States v Ickes 393 F3d 501 (USCA, 2005); US v Arnold 2008 WL 1776525 (9th Cir 2008); US v Cotterman 709 F3d 952 (2013); Riley v California USSC 25 June 2014. Florida v Riley 488 US 445 (1989). United States v Knotts 460 US 276 (1983). United States v Knotts 460 US 276 (1983).

Dataveillance and terrorism

third party doctrine, which states that information shared with a third party falls outside the scope of the Fourth Amendment. So, for example, a person has no expectation of privacy in data they share with their bank.102 Importantly for present purposes, in reliance on this doctrine the Supreme Court in Smith v Maryland has also held that the person who makes a telephone call surrenders the right to privacy in the numbers dialled.103 As has been explained, the principal claimed benefit of pattern-based queries is that they aim to identify clean skins. The corollary of this, however, is that they involve the state having access to the personal information of vast numbers of individuals who have not aroused any suspicion. This raises the question whether pattern-based queries violate the Fourth Amendment’s requirement of probable cause, which in turn hinges on whether mass dataveillance programmes violate individuals’ reasonable expectations of privacy. Much of the information these programmes aggregate, such as financial transactions, communications data, online searches and website browsing history, is covered by the public observation and third party doctrines. The Fourth Amendment would not apply to any of these pieces of data taken on their own. Arguably, however, the process of aggregation should be regarded as constitutionally significant. Even if each individual piece of data was publicly observable and/or disclosed to a third party, the amalgamation of this information produces a ‘transactional narrative’104 that would not otherwise be available. This same issue arises in relation to the protection against unreasonable searches and seizures conferred by section 8 of the Canadian Charter of Rights and Freedoms. Applying the test developed by the Canadian Supreme Court, on their own none of the pieces of data involved in a dataveillance programme may relate to a person’s ‘biographical core’.105 But this core could be reconstituted using this data via the process of aggregation.106 One method of protecting privacy against the possibility of data aggregation would be to adopt a quantitative approach to the Fourth Amendment.107 Such an approach finds some support in the decision of the US Supreme Court in United States v Jones.108 Antoine Jones was suspected of drug trafficking. Without a valid warrant, federal law enforcement agents installed a GPS device to his car and used it to monitor his travel on public roads around the clock for four weeks. The tracking data showed that he made regular visits to stash houses. He was subsequently convicted of drugs conspiracies offences and sentenced to life imprisonment. On appeal, the US Court of Appeals for the District of Columbia Circuit reversed, ruling that there had been a violation of the Fourth Amendment. Before the US Supreme Court the government contended that there had been no search for the purposes of the Fourth Amendment. The car’s journeys were on public roads and were publicly observable, so the driver had no reasonable expectation of privacy. The Supreme Court, however, held unanimously that the Fourth Amendment applied. The majority opinion, written by Justice Scalia and joined by Chief Justice Roberts with Justices Kennedy, Thomas and Sotomayor, held that the installation of the GPS device involved a search because it was accomplished by a trespass for the purpose

102 103 104 105 106 107 108

United States v Miller 425 US 435 (1976). Smith v Maryland 442 US 735 (1979). Renke (n 42) 808. R v Plant, [1993] 3 SCR 281. WM Renke (n 42). Gray and Citron, ‘The Right to Quantitative Privacy’ (n 60). United States v Jones 132 SCt 945 (2012). 159

Stuart Macdonald

of obtaining information. Importantly, though, Justice Alito’s opinion, which was joined by Justices Ginsburg, Breyer and Kagan and with which Justice Sotomayor expressed some sympathy, rejected the trespass-based reasoning and instead adopted a quantitative approach. In the past, he said, resource constraints meant that long-term surveillance could only be justified in investigations of ‘unusual importance’.109 So, whilst short-term monitoring of a person’s movements on public streets accords with people’s reasonable expectations of privacy, longterm monitoring does not. It was not necessary to identify the precise point at which surveillance crosses this threshold, since four weeks was ‘surely’ long enough to impinge on expectations of privacy.110 Whether a quantitative approach to the Fourth Amendment will be applied in cases involving mass dataveillance remains to be seen. Early signs are mixed. In Klayman v Obama, Judge Leon relied on United States v Jones to distinguish Smith v Maryland, ruling that it is ‘significantly likely’111 that government collection and storage of telephone metadata for five years violates reasonable expectations of privacy. On the other hand, in ACLU v Clapper, Judge Pauley emphasised that in United States v Jones the majority decided the case on the basis of trespass. Since the majority did not adopt a quantitative approach and did not overrule Smith v Maryland, he concluded that ‘The collection of breathtaking amounts of information unprotected by the Fourth Amendment does not transform that sweep into a Fourth Amendment search.’112 Academic reaction to Justice Alito’s opinion has also been mixed. Kerr argues that Alito’s ‘mosaic approach’ raises a series of difficult questions regarding when the aggregation of data triggers the Fourth Amendment and that, at a time when technologies are developing rapidly, the uncertainty generated by these questions is undesirable.113 For others, by contrast, Alito’s opinion represents an opportunity to develop a radical new approach to the Fourth Amendment, which is more protective of the ‘right to quantitative privacy.’114 An alternative course, which has been charted by Cole, is comparative constitutionalism.115 In its jurisprudence on the Article 8 right to respect for one’s private and family life the ECtHR has adopted a more nuanced approach to questions of privacy. In contrast to the public observation and third party doctrines, the ECtHR has held that Article 8 ‘is not limited to the protection of an “inner circle” in which the individual may live his own personal life as he chooses and to exclude therefrom entirely the outside world’.116 On the contrary, ‘private life is a broad term not susceptible to exhaustive definition’, which includes – but is not limited to – ‘a right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world’.117 A person’s reasonable expectations of privacy may be a significant factor, but are not necessarily conclusive.118 The ECtHR

109 110 111 112 113 114 115

116 117 118 160

United States v Jones 132 SCt 945, 963 (2012). United States v Jones 132 SCt 945, 964 (2012). 957 F Supp 2d 1 (DDC) 37. 959 F Supp 2d 724 (USDC, SDNY) 752. OS Kerr, ‘The mosaic theory of the Fourth Amendment’ (2012) 111 Michigan Law Review 311. Gray and Citron, ‘The Right to Quantitative Privacy’ (n 60). D Cole,‘Preserving privacy in a digital age: lessons of comparative constitutionalism’ in F Davis, N McGarrity and G Williams, (eds), Surveillance, Counter-Terrorism and Comparative Constitutionalism (Routledge, London 2014). Shimovolos v Russia App No 30194/09, 21 June 2011 (2014) 58 EHRR 26 [64]. Uzun v Germany App No 35623/05, 2 September 2010 (2011) 53 EHRR 24 [43]. Ibid [44].

Dataveillance and terrorism

has held that Article 8 encompasses the systematic collection and storing of data by security services on particular individuals, even if the data was collected in a public place119 or concerned exclusively the person’s professional or public activities.120 So, for example, Article 8 applied where a person’s name had been registered in a surveillance database that collected information about his movements by train or air.121 And, in a case with similar facts to United States v Jones, Article 8 applied where GPS tracking data had been collected for almost three months from a suspect’s car.122 According to Article 8(2), an interference with a person’s Article 8 right may be justified if it was: first, in accordance with the law;123 and, second, necessary in a democratic society for one of several stipulated purposes, including the interests of national security. The second of these conditions requires that the ‘interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued’.124 The assessment of proportionality will include consideration of whether other less-intrusive methods of investigation were available that would have proved effective. In a similar vein, the law governing wiretapping warrants in Canada requires an assessment of investigative necessity.125 To obtain a warrant, investigators must show that no other reasonable alternative method of investigation is available. This is not as strict as a last-resort test, but requires more than a claim that it is the most efficacious method available.126 Pointing to these other sources of law, Cole argues that: [A] legal system need not treat privacy as an on/off affair, but can – and in my view, should – recognise that private details of an individual’s life can be gleaned by the gathering, recording, collation, and analysis of hundreds of pieces of information about the individual’s purchases, travels, communications, contacts, and viewing and reading habits.127 Recognition that privacy is implicated in such cases, coupled with an acceptance that there would be some flexibility in the procedural rules governing intrusions into privacy, would, Cole argues, allow a measure’s necessity to be evaluated as part of the Fourth Amendment’s reasonableness requirement. If other less-intrusive means of investigation are available, the search may not be reasonable. He thus concludes that ‘the Canadian and ECtHR approaches suggest that such assessments of the relative intrusiveness of different monitoring tactics may provide an important constraint on the use of new technologies’.128 It is worth adding that, as well as the degree of intrusiveness, evaluations of necessity should also include an assessment of a measure’s utility as an investigative device. As explained above, there are significant concerns

119 120 121 122 123

124 125 126 127 128

Peck v United Kingdom App No 44647/98, 28 January 2003 (2003) 36 EHRR 41 [59]. Amann v Switzerland App No 27798/95, 16 February 2000 (2000) 30 EHRR 843 [65]. Shimovolos (n 116) 6. Uzun (n 117) discussed further in Chapter 8 (Dickson) in this book. This means that ‘the impugned measure must have some basis in domestic law and be compatible with the rule of law’. It must, therefore, ‘be adequately accessible and foreseeable’ and ‘formulated with sufficient precision to enable the individual – if need be with appropriate advice – to regulate his conduct’ (MM v United Kingdom App No 24029/07 (ECtHR, 13 November 2012)). Uzun (n 117) [78]. Criminal Code, RSC 1985, c C-46, s 186(1). R v Araujo [2000] 2 SCR 992. Cole ‘Preserving privacy in a digital age’ (n 115) 110. Ibid 112. 161

Stuart Macdonald

about the effectiveness of pattern-based queries. Before suspicionless searches of (large numbers of ) individuals’ personal records can be deemed necessary, questions regarding the likely number of false negatives and false positives – and the resultant opportunity cost in terms of resources – should also be addressed.

Conclusion The balancing of competing interests may take different forms. Much discussion about dataveillance programmes assumes that a choice must be made between the demands of national security and individuals’ privacy, so that one set of concerns must trump the other. But to balance competing interests can also mean to reconcile them without eroding the essence of either. In other words, it need not be a ‘zero-sum game’.129 This approach could potentially be adopted in the context of mass dataveillance, as experts begin to develop technologies that have privacy protection embedded in their design, but are still effective for counter-terrorism.130 But if it is necessary to balance in the sense of one-trumps-the-other, it is important first to carefully assess the different sets of interests that are at stake. As this chapter has shown, mass dataveillance raises important privacy-based concerns, which should not be overridden for the sake of pattern-based queries whose security benefits are speculative and that have potentially significant opportunity and collateral security costs.

129 130

162

Zedner, ‘Securing Liberty in the Face of Terror’ (n 4) 511. A Cavoukian and K El Emam, Introducing Privacy-Protective Surveillance: Achieving Privacy and Effective Counter-Terrorism (Information and Privacy Commissioner, Ontario, 2013).

11 Detention and interrogation in law and war Stephen I Vladeck and Clive Walker

The US experience Since the attacks of September 11, the US has pursued a dual approach to preventing and punishing transnational terrorism – expanding the reach of the ordinary criminal justice system for all terrorism offences,1 and enacting a range of extraordinary authorities that authorise the military detention and trial of individuals affiliated with the groups directly responsible for the September 11 attacks, namely, Al Qa’ida, the Taliban, and their associated forces.2 Whereas these different paradigms implicate fundamentally different legal regimes under US law, recent years have witnessed a distinct blurring of the lines between them, as the US government has sought to utilise the advantages both regimes provide in individual cases.3 Nevertheless, there remains today a meaningfully distinct set of legal rules governing detention and interrogation of terrorism suspects within the criminal and military regimes.

Terrorism and the US criminal justice system (a) Introduction

Despite criticisms that US courts have stretched ordinary rules of substantive criminal law and

1

2

3

Although many of the key criminal terrorism laws in the US did not apply to conduct taking place wholly outside the US on or before September 11, Congress has since provided for the extraterritorial application of virtually all of these statutes: J Daskal and SI Vladeck,‘After the AUMF’ (2014) 5 Harvard National Security Journal 115, 134. The Supreme Court has upheld against constitutional challenge the most expansive of these laws – the prohibition on the provision of ‘material support’ to foreign terrorist organisations under 18 USC s 2339B: Humanitarian Law Project v Holder, 561 US 1 (2010). See, for example: Military Commissions Act of 2006, PL No 109-366, 120 Stat. 2600 (10 USC ss 948a–950t); Authorization for the Use of Military Force (AUMF), PL No 107-40, s 2(a), 115 Stat. 224, 224 (codified at 50 USC s 1541 note); National Defense Authorization Act for FiscalYear 2012, PL No 112-81, s 1021(b)(2), 125 Stat. 1298, 1562 (2011). See further SI Vladeck, ‘Terrorism prosecutions and the problem of constitutional cross-ruffing’ (2014) 36 Cardozo Law Review 709. 163

Stephen I Vladeck and Clive Walker

criminal procedure to accommodate terrorism cases,4 perhaps the most important lesson from the US criminal law approach to terrorism-related offences is the extent to which there are few specific rules uniquely applicable to terrorism cases – and virtually no formal authorities that government prosecutors have available to them exclusively for terrorism-related offences. Indeed, for better or worse, the US approach since September 11 has been to largely eschew special rules for terrorism cases, especially in the contexts of criminal detention and interrogation. (b) Detention

With one important (but, at least so far, unutilised) exception,5 the US government has no express special authority to subject terrorism suspects to criminal arrest or detention. Instead, ordinary rules governing arrest and pre-trial detention generally govern, including the Bail Reform Act of 1984, which authorises the pre-trial confinement of defendants for whom ‘no condition or combination of conditions will reasonably assure… the safety of any other person and the community’.6 Although the Supreme Court has held that such pre-trial detention does not violate the defendant’s due process rights, it conditioned that holding upon (1) an individualised showing of future dangerousness; and (2) compliance with the terms of the Speedy Trial Act of 1974.7 Thus, although terrorism suspects are often – if not usually – subject to pre-trial detention, the rules governing the length, nature, and conditions of such confinement are not materially different from those that govern any case involving putatively dangerous defendants on trial for violent crimes and other serious felonies. The one area where the government has taken especial advantage of an ordinary criminal detention authority in terrorism cases has been in its use of ‘material witness’ warrants, which authorise civil law detention where ‘the testimony of a person is material in a criminal proceeding, and… it is shown that it may become impracticable to secure the presence of the person by subpoena’.8 Thus, in several post-September 11 terrorism cases (including, most prominently, that of US citizen José Padilla), the US government held terrorism suspects as material witnesses (sometimes for as long as six weeks) before eventually transferring them to military detention, indicting them on specific criminal charges, or releasing them. In Ashcroft v al-Kidd, the Supreme Court held that an ‘objectively valid’ material witness warrant is not unconstitutional even if it was obtained pretextually.9 To be sure, the al-Kidd decision did not endorse the practice, and it left open the question of whether a material witness warrant

4

5

6 7 8 9 164

See Human Rights Watch, Illusion of Justice: Human Rights Abuses in US Terrorism Prosecutions (2014). Available at: www.hrw.org/sites/default/files/reports/usterrorism0714_ForUpload_1.pdf accessed 1 November 2014. The exception comes from s 412 of the USA PATRIOT Act of 2001, 8 USC s 1226a, which authorises the Attorney General to detain for up to seven days any non-citizen who is subject to deportation on various terrorism-related grounds or ‘is engaged in any other activity that endangers the national security of the United States’: s 1226a(3)(B). After seven days, the non-citizen must either be charged with a crime, released, or placed into deportation proceedings: s 1226a(5). To date, the US government has never relied upon s 412. 18 USC s 3142(e)(1). 18 USC s 3161. See US v Salerno, 481 US 739 (1987). See 18 USC s 3144. See 131 S Ct 2074 (2011).

Detention and interrogation in law and war

obtained pretextually might be invalid (the holding assumed the underlying warrant was ‘objectively valid’).10 But it at least left open the possibility of such detentions going forward.11 (c) Interrogation

As with arrest and detention authorities, there are no unique legal authorities governing law enforcement interrogation of terrorism suspects as compared with interrogation of ordinary criminal defendants. Instead, terrorism suspects generally have the same rights with respect to interrogations as any other criminal defendant, especially those rights recognised by the US Supreme Court in its famous Miranda decision.12 Nevertheless, there are two significant caveats to this general proposition that provide the government with increased flexibility in terms of interrogating terrorism suspects. First, the remedy for a violation of Miranda is the suppression of statements obtained as a result of the violation.13 Thus, Miranda does not actually prohibit any direct conduct by the government (including an interrogation in which the government failed to provide the Miranda warnings); at most, it would prohibit the government from using a suspect’s un-Mirandised statements at trial; if the statements are not just un-Mirandised but also involuntary, any ‘fruits’ of such statements will also be excluded.14 In cases in which the purpose of the interrogation is not to inculpate the suspect so much as it is to develop intelligence about future threats, the government may well be willing to forego the admissibility at trial of the defendant’s unMirandised statements in exchange for the value of intelligence from such statements. To be sure, a separate body of cases mandates dismissal of criminal charges in cases in which the government’s conduct in the course of arresting and interrogating a criminal suspect ‘shocks the conscience’.15 But cases recognising such ‘conscience-shocking’ conduct (including torture) are few and far between,16 leaving exclusion of the suspect’s statements as the most serious remedy the government is likely to face for violating a defendant’s rights. Second, and more importantly, terrorism cases have highlighted one of the more controversial (and less-often invoked) exceptions to Miranda – the so-called ‘public safety’ exception. That exception, which was articulated by the Supreme Court in a non-terrorism case in 1984,17 recognises that ‘where questioning in a custodial interrogation focuses on ongoing concern for

10

11 12

13 14 15 16 17

Indeed, on remand, the district court ended up siding with the plaintiff in al-Kidd, on the ground that actions by the specific government officers who obtained the material witness warrant were unlawful. See al-Kidd v Gonzales, No 05-093, 2012 WL 4470776 (D Idaho Sep 27, 2012). For additional discussion, see WM Oliver, ‘Material witness detentions after al-Kidd’ (2011–2012) 100 Kentucky Law Journal 293. See Miranda v Arizona, 384 US 436 (1966). Those rights include the right to remain silent, the right to be informed that anything he says can and will be used against him in court; the right to speak with an attorney, and the right to have an attorney provided if he cannot afford one. Although there is no express rule governing when a suspect must be advised of these Miranda rights, the general rule is that suspects must be ‘presented’ before a neutral magistrate (who, among other things, will ensure that the suspect is aware of these rights) ‘without unnecessary delay’ (Fed R Crim P 5), and in any event, no longer than 48 hours after their arrest. See County of Riverside v McLaughlin, 500 US 44 (1991). See US v Patane, 542 US 630, 643 (2004). See ibid; Wong Sun v United States, 371 US 471 (1963). See Rochin v California, 342 US 165 (1952). See US v Ghailani, 751 F Supp 2d 502, 505 (SDNY 2010). See New York v Quarles, 467 US 649 (1984). 165

Stephen I Vladeck and Clive Walker

public safety, rather than the suspect’s specific culpability, statements made by the suspect in response are admissible against him even if they were obtained prior to the administration of the Miranda warnings.’18 Although the decision in which the public safety exception was recognised was a relatively routine criminal case, courts have not hesitated to apply the public safety exception to more undifferentiated national security concerns in terrorism cases, albeit only for relatively short periods (such as fifty minutes) of questioning.19 The upshot of these rulings, though, is that US officials may have at least some latitude in terrorism cases to conduct interrogations without providing Miranda warnings, and then to seek the introduction of the defendant’s un-Mirandised statements at trial. (d) Conclusion

The outward neutrality of the rules summarised above has not muted the criticisms that have been levelled against the US government for manipulating the law in terrorism cases and for stretching existing rules and precedents, perhaps even beyond their breaking point.20 Indeed, proposals for some kind of specialised ‘national security court’ for terrorism prosecutions have often been justified based on the extent to which they would remove the pressure that federal courts face in terrorism cases to reach otherwise inappropriate doctrinal accommodations.21 Furthermore, as discussed next, the availability of the military paradigm in at least some cases unquestionably provides the government with leverage it would not ordinarily possess in routine criminal cases. Nevertheless, at least with respect to arrest, detention, and interrogation, the ordinary US criminal justice system generally applies the same rules to terrorism cases that it applies to all other cases.22

Terrorism and the US military paradigm (a) Introduction

The elephant in the room when it comes to US practice is the military force paradigm, including asserted powers to (1) detain without charges individuals who are part of Al Qa’ida, the Taliban, or their associated forces; (2) interrogate those detainees; and (3) try a subset thereof before military commissions specially established for such cases by Congress. Not only have these powers proven controversial enough in their own right, but also the government’s ability to take advantage of them alongside ordinary criminal law enforcement powers has raised unique practical and legal concerns with which US courts have yet to truly grapple.

18 19 20 21

22

166

See S Dycus and others, 2014-15 Supplement to National Security Law and Counterterrorism Law (Aspen, New York, 2014) 263. See US v Abdulmutallab, No 10-20005, 2011 WL 4345243 (ED Mich Sep 16, 2011), aff ’d on other grounds, 739 F3d 891 (6th Cir 2014). See Human Rights Watch (n 4). See G Sulmasy, The National Security Court System: A Natural Evolution of Justice in an Age of Terror (Oxford University Press, New York, 2009). Compare SI Vladeck, ‘The Case Against National Security Courts’ (2009) 45 Willamette Law Review 505. See SI Vladeck, The National Security Courts We Already Have, JOTWELL, 23 September 2013. Available at: http://courtslaw.jotwell.com/the-national-security-courts-we-already-have/ accessed 1 November 2014.

Detention and interrogation in law and war

(b) Detention

With regard to military detention authority, it is vital to underscore which questions are settled, and which are not. The two critical statutory authorities are the September 18, 2001 AUMF,23 which has been held by the Supreme Court to authorise at least some military confinement;24 and the National Defense Authorization Act for Fiscal Year 2012 (NDAA), section 1021(b) of which clarifies the scope of the AUMF’s detention authority at least in terms of non-citizens captured outside the territorial US.25 In the cases of non-citizens captured outside the territorial US, the government may apply military detention so long as it can demonstrate, by a preponderance (greater than half) of the evidence,26 that the detainee ‘was a part of or substantially supported Al Qa'ida, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners’.27 To be sure, the US Supreme Court: has not directly addressed whether the AUMF authorizes, and the Constitution permits, detention on the basis that an individual was part of al Qaeda, or part of the Taliban, but was not “engaged in an armed conflict against the United States” in Afghanistan prior to his capture. Nor have we considered whether, assuming detention on these bases is permissible, either the AUMF or the Constitution limits the duration of detention.28 Indeed, the Supreme Court has only interpreted the AUMF once – in the case of Yaser Esam Hamdi, a US citizen captured in Afghanistan.29 But the lower courts have addressed these questions and have generally held that all that is required to justify detention until the ‘cessation of hostilities’ (at least where non-citizens captured outside the US are involved) is proof of membership, without regard to any individualised showing of involvement in hostilities and/or dangerousness.30 Although a number of the Guantánamo detainees have been successful in bringing habeas challenges to their detention,31 122 men remained in US custody there as of 1 April 2015 (although no new detainees have been sent to Guantánamo since 2008).32 The law governing military detention of US citizens, and of non-citizens arrested within the territorial US, is far murkier. There have only been three such cases to date: US citizens Yaser Esam Hamdi and José Padilla, and non-citizen Ali Saleh Kahlah al-Marri. Although the Supreme Court specifically considered and upheld Hamdi’s detention, its reasoning was exceptionally narrow, tied closely to the fact that, even though he was a US citizen, Hamdi was captured in a foreign combat theatre.33 Perhaps to avoid a contrary ruling on the merits, the

23 24 25 26 27 28 29 30 31

32 33

PL No 107-40, s 2(a), 115 Stat 224, 224, 50 USC s 1541 note. See Hamdi v Rumsfeld, 542 US 507 (2004) (plurality opinion). PL No 112-81, 125 Stat 1298 (2011). See al-Bihani v Obama, 590 F 3d 866 (DC Cir 2010). FY2012 NDAA s 1021(b)(2), 125 Stat, 1562. Hussain v Obama, 134 S Ct 1621, 1622 (2014) (Breyer, J, respecting the denial of certiorari). Hamdi v Rumsfeld, 542 US 507 (plurality opinion). al-Bihani v Obama, 590 F3d 866. See generally SI Vladeck, ‘The D.C. Circuit After Boumediene’ (2011) 41 Seton Hall Law Review 1451. Of the 61 detainees who have obtained habeas adjudications on the merits (which only became possible after the Supreme Court’s decision in Boumediene v Bush, 553 US 723 (2008)), thirty-eight have prevailed, meaning that their continuing detention was adjudicated to be unlawful. See The Guantánamo Docket, New York Times (last updated 1 December 2014). Available at: http://projects.nytimes.com/Guantanamo accessed 15 February 2015. See Hamdi v Rumsfeld, 542 US 507 (2004) (plurality opinion). 167

Stephen I Vladeck and Clive Walker

government mooted the Padilla and al-Marri cases before the Supreme Court could rule on them,34 and the NDAA, which otherwise provides a more specific definition of who may be detained under the AUMF, includes an express carve-out providing that ‘Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States’.35 In other words, the NDAA only preserved the decidedly unclear status quo with regard to the law governing military detention of US citizens, and of non-citizens arrested within the US. Finally, no discussion of the US government’s military detention authority would be complete without flagging the ongoing debate over whether the AUMF should be repealed, especially given the withdrawal of combat troops from Afghanistan. Although this policy dispute remained very much unsettled up to the end of 2014, it should follow that, at least under current US law, all military detention authority depends upon the existence of a statutorily authorised armed conflict against the country or organisation of which the detainee is a citizen or member. (c) Interrogation

Part of why the US gravitated toward the military detention paradigm described above in the weeks and months after September 11 was because of the inadequacies of ordinary criminal law authorities in two respects. First, as noted above, many, if not most, of the key criminal terrorism laws did not apply to extraterritorial conduct on September 11. Second, and as significantly, the US government’s focus, especially in the early years after September 11, was in deriving all possible intelligence of value from detainees. And, at least initially, the rules governing interrogations in military detention were far less restrictive, thanks in part to controversial memoranda prepared by the US Justice Department’s Office of Legal Counsel (OLC).36 As a result, there were a number of documented episodes in which US officials, or military contractors acting at their behest, tortured or otherwise mistreated military detainees after September 11.37 Whether prompted by those episodes or not, both Congress and the US courts responded by providing far clearer restrictions on coercive or otherwise ‘enhanced’ interrogation techniques, beginning with the so-called ‘McCain Amendment’ enacted as part of the Detainee Treatment Act of 2005. That provision mandates that ‘No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment’,38 which the statute defined as ‘the cruel, unusual, and inhumane treatment or punishment prohibited by the [US Constitution], as defined in the United States Reservations, Declarations and Understandings to the [UN Convention Against Torture]’.39 In addition, the statute also barred the

34 35 36 37 38 39 168

See al-Marri v Spagone, 555 US 1220 (2009) (mem); Padilla v Hanft, 547 US 1062 (2006) (mem). FY2012 NDAA, s 1021(e), 125 Stat, 1562. See KJ Greenberg and JL Dratel (eds), The Torture Papers (Cambridge University Press, Cambridge 2005). See Senate Select Committee on Intelligence, Study of the CIA's Detention and Interrogation Program (pending). PL No 109-148, s 1003(a), 119 Stat 2680, 2739 (codified at 42 USC s 2000dd note). Ibid s 1003(d), 119 Stat at 2740.

Detention and interrogation in law and war

use of any interrogation technique not specifically authorised by the US Army Field Manual against any detainee ‘under the effective control of the Department of Defense or under detention in a Department of Defense facility’,40 a proviso that did not apply to CIA ‘black sites’. Partly because of that distinction, the far more significant development with regard to the law governing interrogations of military detainees came in the US Supreme Court’s 2006 decision in Hamdan v Rumsfeld,41 a case that was not ostensibly about interrogations, but rather about the legality of military commissions unilaterally created by the Bush Administration in November 2001. In the process of invalidating those commissions (a decision to which Congress responded by enacting the Military Commissions Act of 2006 [MCA]), a five-Justice majority held that Common Article 3 of the 1949 Geneva Conventions (which, among other things, prohibits ‘outrages upon personal dignity, in particular humiliating and degrading treatment’),42 applies to the non-international armed conflict Congress authorised in the AUMF.43 It is almost certainly no coincidence that, less than three months after Hamdan was decided, the US began closing its remaining black sites and transferred those detained at such facilities to Guantánamo.44 Thus, with respect to the law governing interrogations of military detainees today, the floor is that provided by the McCain Amendment and Common Article 3 (and, insofar as they are applicable, the Fifth and Eighth Amendments to the US Constitution). Detainees are still provided with far fewer protections than they would receive in the civilian criminal justice system (for example, there is no Miranda right in the context of military detention), but concerns that the US is violating international law in its interrogation of military detainees have largely abated.45 (d) Military Commissions

Finally, the last relevant element of the military paradigm is the power the US has claimed to try at least some of those detained by the military before military commissions. Although the Supreme Court in Hamdan invalidated the commissions unilaterally established by the Bush Administration after September 11,46 Congress responded in the MCA,47 placing the

40 41 42

43 44

45 46

Ibid s 1002(a), 119 Stat at 2739 (codified at 10 USC s 801 note). 548 US 557 (2006). Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in the Armed Forces in the Field, Aug 12, 1949, 75 UNTS 31, 32–34; Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 UST 3217, 3320–22, 75 UNTS 85, 86–88; Geneva Convention Relative to the Treatment of Prisoners of War, Aug 12, 1949, 6 UST 3316, 3318–20, 75 UNTS 135, 136–38; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug 12, 1949, 75 UNTS 287, 288–90. Hamdan v Rumsfeld, 548 US 557, 629–32. The US government did not officially repudiate ‘black sites’ until after President Obama came to office. See Ensuring Lawful Interrogations, Exec Order 13,491, 74 Fed Reg 4893 ( Jan 22, 2009). But most of the black sites had been closed and the detainees transferred to Guantánamo as early as September 2006. See D Stout,‘CIA Detainees Sent to Guantánamo’ NewYork Times (New York, 6 September 2006), www.nytimes.com/2006/09/06/washington/06cnd-bush.html accessed 10 February 2015. But condemnation of detention and conditions of detention remains: C Zerrougui and others, Situation of Detainees in Guantanamo Bay (E/CN.4/2006/120, New York 2006). 548 US 557. 169

Stephen I Vladeck and Clive Walker

commissions on far firmer footing – at least in terms of the separation of powers defects on which the Supreme Court had relied in Hamdan. The MCA codifies twenty-eight distinct substantive offences,48 including some – such as conspiracy, ‘providing material support to terrorism’, and solicitation – that are not generally recognised as international war crimes. In addition, the MCA authorises trial of non-citizens who are ‘unprivileged enemy belligerents’, which the statute defines as: an individual (other than a privileged belligerent) who has engaged in hostilities against the United States or its coalition partners; has purposefully and materially supported hostilities against the United States or its coalition partners; or was a part of al Qaeda at the time of the alleged offence under this chapter.49 Although the US Supreme Court has recognised the constitutionality of using military commissions to try international war crimes committed by individuals who are recognised as belligerents under international law,50 it has never recognised the validity of military commissions trying either (1) offences that are not international war crimes; or (2) offenders who are not belligerents under international law. Thus, whereas the ‘9/11 trial’ (the trial of the detainees most directly associated with the September 11 attacks)51 raises few jurisdictional questions, every other commission proceeding to date has raised substantial jurisdictional questions, most of which remain unanswered.52 For instance, in a July 2014 decision, the US Court of Appeals for the DC Circuit, sitting en banc, unanimously held even under deferential ‘plain error’ review that the commissions could not try ‘material support’ and solicitation offences that were committed before the MCA was enacted,53 since such trials would otherwise violate the US Constitution’s prohibition on ex post facto laws.54 Thus, the jurisdiction of the commissions remains very much in dispute except as to international war crimes (where it is clear), and material support and solicitation charges based upon pre-MCA conduct (where it is clearly forsworn). (e) Conclusion

Although the military paradigm provides the US government with far more flexibility at least with regard to detaining terrorism suspects, the legal and political baggage surrounding the

47 48 49 50 51

52

53

54 170

PL No 109-366, 120 Stat 2600 (codified as amended at 10 USC ss 948a–950t). See 10 USC s 950t. Ibid. s 948a(7). See Ex parte Quirin, 317 US 1 (1942); In re Yamashita, 327 US 1 (1946). See the case against Khalid Sheikh Mohammed, Ramzi bin al-Shibh, Mustafa al-Hawsawi, Ali Abd al-Aziz Ali (aka Ammar al-Baluchi) and Walid bin Attash. Available at: www.mc.mil/ CASES/MilitaryCommissions.aspx accessed 5 March 2015. For example, in the case of Abd al-Rahim al-Nashiri, the government sought to try a detainee charged based upon his involvement in the 2000 bombing of the USS Cole (thus predating the September 11 attacks, and, arguably, occurring outside the context of any non-international armed conflict); the prosecution decided not to contest these challenges: US v Al-Nashiri AE 168G I AE 241C, 11 August 2014. See al Bahlul v US, 767 F3d 1 (DC Cir 2014) (en banc). The court rejected al Bahlul’s ex post facto challenge to his conspiracy conviction, but largely because it held, by a 4–3 vote, that he had forfeited that claim. US Constitution, art I, s 9, cl 3.

Detention and interrogation in law and war

excesses of the first months and years after September 11 have led the Obama Administration to largely eschew military authorities in new cases, leaving long-term military detention and military commission trials for legacy cases involving individuals already detained at Guantánamo.55 At the same time, the Obama Administration has relied on short-term military detention in several more recent cases where terrorism suspects have been captured overseas before being transferred to civilian criminal proceedings in the US. As a case in point, Ahmed Abdulkadir Warsame was captured in April 2011 in international waters in the Gulf of Aden, and was subsequently held in military custody and interrogated for two months before being transferred to stand trial in civilian criminal court in NewYork (where he pleaded guilty).56 To date, courts have identified no problem with the government utilising both authorities in this manner; in an especially noteworthy decision, the federal appeals court in NewYork held that five years in CIA (and then military) detention prior to trial did not violate a defendant’s constitutional speedy trial rights.57 Going forward then, the more significant question for US law and policy when it comes to detention and interrogation in law and war may not be the limits of the government’s criminal or military authorities in the abstract, but rather whether anything limits the government’s ability to take advantage of both sets of authorities in a manner that dilutes at least some of the protections that would constrain the government if it were proceeding exclusively under either paradigm.

The UK experience Criminal justice (a) Introduction

Taking up the distinction between criminal justice and military-related legal regimes, the pretrial stages of the criminal justice processing of terrorist suspects have witnessed extensive changes in UK law from the time of 1974 (IRA related) and certainly since 9/11. Adaptations in Northern Ireland alone are more extensive and reflective of earlier origins.58 At the heart of the terrorism policing powers in the Terrorism Act 2000 (TA 2000) is arrest without warrant under section 41. Its traditional purpose is to allow for the interrogation of suspects. A second reason is to facilitate forensic testing by explosives analysis, DNA profiling, computer data recovery, and the examination of CCTV footage. These objectives are aided by an elongated period of detention (currently 14 days, down from 28 days in 2010),59 which has proven extraordinarily controversial, with past proposals to extend it to 42, 56, and even 90 days.

55

56 57 58 59

See President Barack H Obama, Remarks by the President on National Security, 21 May 2009. Available at: www.whitehouse.gov/the-press-office/remarks-president-national-security-5-21-09 accessed 1 November 2014. See C Savage,‘US tests new approach to terrorism cases on Somali Suspect’, NewYork Times (New York, 7 July 2011) A10. US v Ghailani, 733 F 3d 29 (2d Cir 2013), cert denied, 134 SCt 1523 (2014). See C Walker, Terrorism and the Law (Oxford University Press, Oxford, 2011) ch 5, The Anti-Terrorism Legislation (Oxford University Press, Oxford, 2014) ch 4. See Criminal Justice Act 2003, s 306. Detentions for up to twenty-eight days applied between 2006 and 2011: Terrorism Act 2006, s 23. There are contingent powers to restore the twenty-eight-day limit: Home Office, Draft Detention of Terrorist Suspects (Temporary Extension) Bills (Cm 8018, London 2011); Protection of Freedoms Act 2012, s 58. See Joint Committee on the Draft Detention of Terrorist Suspects (Temporary Extension) Bills in 2011), Report (2010–12 HL 161/HC 893). 171

Stephen I Vladeck and Clive Walker

(b) Arrest and detention

The core special arrest power is in section 41(1) of the TA 2000: ‘A constable may arrest without a warrant a person whom he reasonably suspects to be a terrorist.’ The threshold was described as ‘low’ in Commissioner of Police of the Metropolis v Raissi,60 which also illustrated a recurrent feature, namely multiple ‘precautionary’ arrests. The section 41 formulation next differs from normal arrest powers in that it allows a wider range of activities to be considered because no specific offence need be in mind. The result is to afford wider discretion in carrying out investigations. Terrorist plots and attacks usually do, however, entail identifiable offences, and this convergence prompted the European Court of Human Rights in Brogan v United Kingdom to accept ‘terrorism’ as within the notion of an ‘offence’ under Article 5(1)(c).61 Arrest rates are modest in volume compared with the million and a half for ‘normal’ policing powers. But the intake involves a higher proportion of Asians and Blacks than in the general population and a lower rate of charging as the outcome. For the twelve years between 2001 and 2002 and 2012 and 2013, arrests under section 41 in Great Britain totalled 2,419, with 897 charged (37 per cent of arrests), 604 convicted (67 per cent of those charged), and 222 (9 per cent of arrests) subjected to other official action such as deportation.62 Northern Ireland rates of arrest are higher (the total was 2,602 for a population of around 1.75 million) and the charging rate is lower with 732 charged (28 per cent).63 Thus, a special initial power to arrest allows for broad inquiry and for intelligence gathering or disruption but not so often for prosecution. Having made an arrest under section 41, section 41(3) allows for detention on police authority of up to forty-eight hours. The detention period may then be extended for further judicially authorised periods, which can currently endure up to fourteen days from arrest. Most detentions are in Britain much shorter, with 43 per cent less than twenty-four hours, though the use of detention beyond twenty-four hours (19 per cent last between twenty-four and forty-eight hours, 28 per cent between forty-eight hours and seven days, 10 per cent between seven and fourteen days, and 1 per cent beyond fourteen days) still far exceeds the normal rate (which is below 1 per cent).64 In Northern Ireland, 176 extended detentions were completed within seven days, with just seventeen lasting from seven to fourteen days, and one beyond fourteen days. Periodic reviews are conducted during the detention period. The first important waypoint occurs at forty-eight hours when, usually, a police superintendent, under paragraph 29 of Schedule 8, makes an application for a ‘warrant of further detention’. The second waypoint in the detention power occurs at seven days from the point of arrest. To authorise detention beyond this point, another warrant of further detention must be issued under paragraph 36.

60 61

62 63 64 172

[2008] EWCA Civ 1237 [20]. See also R (Raissi) v Secretary of State for the Home Department [2008] EWCA Civ 72; Raissi v Secretary of State for Justice [2010] EWCA 337; The Times 24 April 2010, 2. Brogan v United Kingdom, App Nos 11209, 11234, 11266/84, 11386/85, Ser A 145-B, 29 November 1988 (1989) 11 EHRR 117 [50]. See also Ireland v United Kingdom, App No 5310/71, Ser A 25, 18 January 1978 (1979-80) 2 EHRR 25 [196]. Source: Home Office Statistical Bulletins. The figures for 2001 are from 19 February of that year. Source: NIO Statistics & Research Agency. Note: 2001 from 19 February (i.e. commencement of the TA 2000). Source: Home Office Statistical Bulletins.

Detention and interrogation in law and war

The application for extension beyond forty-eight hours is made to ‘a judicial authority’,65 which means a designated district judge (magistrates’ court). An important feature is that the detainee shall be given an opportunity under paragraph 33 to make oral or written representations to the judicial authority and shall be entitled to be legally represented at the hearing,66 if necessary following an adjournment. However, the right to make representations does not necessarily entail a full hearing, since the judicial authority may exclude the detainee or any representative, though that the judge should always ensure that sufficient details have been disclosed to enable the detainee to make the effective representations under paragraph 33.67 Applications are rarely refused or constrained,68 though the courts emphasise that the exercise must be taken seriously and that there is an enhanced duty to scrutinise when (as commonly occurs) the detainee is excluded from part of the process.69 (c) Interrogation

The dangers of abusive treatment have been reflected in notorious practices of ‘deep interrogation’,70 in miscarriage of justice cases such as the Birmingham 6 and Guildford 4,71 as well as in numerous challenges to the admissibility of confession evidence in the Northern Ireland courts.72 Therefore, a battery of special safeguards began to be implemented after the Bennett Report in 1979.73 Part I of Schedule 8 of the TA 2000 regulates the treatment of detainees. Alongside, there are more detailed guides, especially the Police and Criminal Evidence Act 1984 Code H in Connection with the Detention, Treatment and Questioning by Police Officers of Persons under Section 41 of, and Schedule 8 to, the TA 2000.74 Amongst the measures to be put in place is the audio recording of interviews, with video recording now specified.75 Rights of access to lawyers under the TA 2000, Schedule 8 paragraph 7, are of vital importance not only to convey legal instructions but also as a monitoring mechanism, which further guards against any form of abuse. Delays in access are permitted for up to 48 hours; in practice, legal advice is rarely denied, but practices have emerged in

65

66 67 68 69 70

71 72 73 74 75

This judicial check is to comply with art 5(3) of the ECHR. Compare Brogan v United Kingdom (n 61); McEldowney and others v United Kingdom, App No 14550/89, Res DH(94) 31; O’Hara v United Kingdom, App No 37555/97, 2001-X, 16 October 2001 (2002) 34 EHRR 32; Lord Lloyd Inquiry into Legislation against Terrorism (Cm 3420, London 1996) para 9.20. The detainee is usually heard by video link: Criminal Justice and Police Act 2001, s 75. Re McAuley [2014] NIQB 31. Crown Prosecution Service, Scrutiny of Pre-Charge Detention in Terrorist Cases (London 2007) para 12. Re Quigley’s Application [1997] NI 202; Ward v Police Service for Northern Ireland [2007] UKHL 50; Sher v Chief Constable of Greater Manchester Police [2010] EWHC 1859 (Admin). See Ireland v United Kingdom App No 5310/71, Ser A 25 (1978). Ireland is going to ask the ECtHR to revise its judgement in this case (see: H McDonald ‘Ireland to clash with UK at human rights court over hooded men judgment’ The Guardian (London, 2 December 2014). Available at: www.theguardian.com/world/2014/dec/02/ireland-european-court-hooded-men accessed 8 December 2014. C Walker and K Starmer, (eds) Miscarriages of Justice (Blackstone Press, London, 1999). See P Taylor, Beating the Terrorists? (Penguin, London, 1980). Report of the Committee of Inquiry into Police Interrogation Procedures in Northern Ireland (Cmnd 9497, London, 1979). See originally Home Office Circular 23/2006 and, for Northern Ireland, Police and Criminal Evidence (Northern Ireland) Order 1989 (Codes of Practice) (No 4) Order 2008, SRNI 2008/408. Terrorism Act 2000, Sch 8 paras 3, 4; Counter Terrorism Act 2008, ss 22, 23. 173

Stephen I Vladeck and Clive Walker

Northern Ireland of police denigration of lawyers76 and even collusion in the murders of Pat Finucane in 198977 and Rosemary Nelson in 1999.78 Legal advice was declared in Cullen v Chief Constable of the Royal Ulster Constabulary79 to be ‘a quasi-constitutional right of fundamental importance in a free society’. In (John) Murray v United Kingdom,80 the ECtHR concluded that it would be incompatible with the right to a fair trial to base a conviction solely or mainly on the accused’s silence. In addition, inferences drawn in unfair circumstances, such as where there had been a denial of access to a lawyer for 48 hours, would contravene Art 6(1) in conjunction with Art 6(3)(c).81 Rights to have a person informed of the detention are granted by paragraph 6, which places greater emphasis than normal on the grant of family visits. Code H, paragraph 9, also requires frequent medical checks, which is a vital aspect of the safeguards against abuse and a key reform in quelling abusive physical behaviour by the police in Northern Ireland. Finally, under the Coroners and Justice Act 2009, section 117, the remit of the Independent Reviewer of Terrorism Legislation has been modified to make explicit that the Reviewer may ‘in particular’ investigate the treatment of detainees after 48 hours, including by real-time observation. Section 117 also places a duty on police authorities under the Police Reform Act 2002, section 51, to ensure that independent custody visitors (representing the local community) can attend places of detention and access audio and video recordings. Interrogation practices have been less directly regulated, but some changes have been made to ambient evidential rules. First, there are special rules of proof for offences of possession of materials or information useful to terrorism (TA 2000, sections 57, 58), whereby the suspect must prove reasonable excuse and so is forced to speak and give evidence. Second, a ‘public safety’ exception has been developed in R v Ibrahim.82 The defendant, who was charged with attempted bombings in London on 21 July 2005, wanted to exclude on grounds of unfairness the fact that he had not mentioned in the ‘safety interview’ (in which the police asked as a matter of urgency whether he possessed or knew about any explosives) his later defence that he had been engaged in a political stunt. During the safety interview, the police had warned that his statements would be recorded and used in evidence. The court admitted the evidence, even though legal advice had also been improperly refused. Third, post-charge questioning has been extended under the Counter Terrorism Act 2008, section 22. The conditions of detention for terrorism suspects have much improved compared with previous decades. Those conditions were a major factor in the generation of miscarriages of justice. However, while some excesses have been reduced, the extreme stress and disorientation inherently inflicted by the current detention powers should not be underestimated. In addition, such lengthy periods may even breach per se the right to liberty under article 5(1) of the ECHR. (d) Conclusion

The overall police verdict is that special arrest powers have proved the most ‘critical’ measure 76 77 78 79 80 81 82

174

See J Rayner, ‘In the line of duty’ (2013) Law Society’s Gazette 2 December, 19. See Cory Collusion Inquiry Report, Pat Finucane (2003–04 HC 470); D de Silva, Report of the Patrick Finucane Review (2012–13 HC 802). See Cory Collusion Inquiry Report, Rosemary Nelson (2003–04 HC 473); M Moreland, The Rosemary Nelson Inquiry (2010–12 HC 947). [2003] UKHL 39, [67] per Lord Millett. App No 18731/91, Reports 1996-I, 1 January 1994 (1994) 18 EHRR CD1. Ibid [66]. [2008] EWCA Crim 880. Compare FBI, Custodial Interrogation for Public Safety and IntelligenceGathering Purposes of Operational Terrorists Inside the United States (21 October 2010). Available at: www.nytimes.com/2011/03/25/us/25miranda-text.html accessed 15 February 2015.

Detention and interrogation in law and war

in successive anti-terrorist legislation.83 An alternative view of section 41 is that too many disadvantages can flow. First, there is damage to the legitimacy of the criminal justice system through miscarriages of justice. The May Inquiry Final Report, following the case of the Guildford Four, acutely observed that, ‘[i]f all the safeguards of PACE are necessary to avoid miscarriages of justice then it must be recognised that in terrorist cases greater risks of injustice are accepted than in the ordinary course of criminal cases’.84 The second danger is to community relations, which derives from concern about how suspects from a given community are targeted and treated, with the danger than the flow of intelligence will diminish. The Jellicoe Report concluded in 1983 that: ‘there can be no clear proof that the [special] arrest powers… are, or are not, an essential weapon in the fight against terrorism’.85 Nevertheless, the Report recommended their continuance. In many ways that refuge in faith and risk aversion has barely altered during subsequent decades. Certainly, the UK state has been much readier than the US to change fundamental aspects of its criminal justice system.86 Possible explanations are: that the threat of terrorism has been historically perceived as being of a greater level, of greater longevity, and of internal more than external origins; that pragmatism rather than fundamental constitutional right principles drives change; that intelligence gathering is a predominant objective, perhaps flowing from ideas that counter-terrorism should be preemptive and perhaps also flowing from the involvement of the security agencies in domestic counter-terrorism; that the best outcome would be the criminalisation of terrorists. In the government’s words, ‘prosecution is – first, second and third – the government’s preferred approach when dealing with suspected terrorists’.87 Both arrests and safeguards are necessary to achieve that outcome.

Military paradigm (a) Introduction

Detention and interrogation ‘in extremis' following military deployments in Afghanistan and Iraq against terrorists and insurgents has been under the spotlight as much as in domestic laws.88 However, one vital distinction from the US approach is that successive British governments have officially rejected any juristic concept of a ‘war on terror’.89 The nearest to that concept was detention without trial in a state of emergency as applied in the UK under the Antiterrorism, Crime and Security Act 2001, Part IV, but it proved legally (and politically) unsustainable.90 As for Afghanistan and Iraq, the British government has fully recognised the 83 84 85 86 87 88

89

90

Lord Lloyd (n 65) para 4.14. Report of the Inquiry into the circumstances surrounding the convictions arising out of the bomb attacks in Guildford and Woolwich in 1974, Final Report (1993–94 HC 449) para 21.8. Report of the Operation of the Prevention of Terrorism (Temporary Provisions) Act 1976 (Cmnd 8803, London, 1983) para 55. See further D Cole, ‘English lessons’ (2009) 62 Current Legal Problems 136; EB Tembo, US-UK Counter Terrorism After 9/11 (Routledge, Abingdon, 2014). Hansard (HC) vol 472, col 561 (21 February 2008),Tony McNulty. See C Walker, ‘Detention in extremis: transferring lessons from counter-terrorism policing to military detentions’ in A Masferrer and C Walker, (eds), Counter-Terrorism, Human Rights And The Rule Of Law: Crossing Legal Boundaries in Defence of the State (Edward Elgar, Cheltenham, 2013). According to David Miliband, Secretary of State for the Foreign and Commonwealth Office,‘The phrase had some merit: it captured the gravity of the threats, the need for solidarity, and the need to respond urgently – where necessary, with force. But ultimately, the notion is misleading and mistaken’ (The Guardian, London, 15 January 2009) 29. See A v Secretary of State for the Home Department [2004] UKHL 56. 175

Stephen I Vladeck and Clive Walker

applicability of unadulterated International Humanitarian Law (IHL). But this recognition has still engendered legal debates because of ongoing military scandals and inquiries, deepening public concern and scrutiny because of these scandals as well as the financial and human costs, and because of enhanced judicial scrutiny reflecting a refusal to accept ‘legal black holes’91 and a willingness to overlay of human rights on top of IHL. Taking up the last point, there are five cases, which have exemplified these trends towards judicial activism. First, in R (al-Jedda) v Secretary of State for Defence,92 the House of Lords denied liability on the basis that the detention at the Shaibah Divisional Detention Facility, Basrah from 2004 to 2007 of al Jedda and others was not covered by article 5(1) of the ECHR because the obligation under the UN Charter, article 103 to carry out Security Council resolutions prevailed. However, the view of the ECtHR in al-Jedda v UK93 was that the Security Council had never exercised effective authority by requiring internment under UNSCR 1546. Second, the House of Lords in R (Al-Skeini and Others) v Secretary of State for Defence94 held that combat situations in Iraq were largely beyond the UK’s domestic rights regime. Just one person held in custody at a British military base (Baha Mousa) benefited at least from the right to life under article 2, but this assumption of jurisdiction did not apply to five others who were shot dead by British military patrols on the wild streets of Basrah. Again, this exclusion was condemned by the ECtHR in Al-Skeini v UK.95 Third, in R (al-Saadoon) v Secretary of State for Defence,96 the applicant had been detained without trial and then transferred to the Iraqi authorities at the end of active UK military involvement in Iraq. The Court of Appeal concluded that, after 2008, when active British military involvement in Iraq was terminated by agreement with the Iraqi government, there was no alternative but to transfer these individuals, since there could be no further legal basis for British detention of them. The ECtHR again held that ‘given the total and exclusive de facto, and subsequently also de jure control’ exercised by the UK military, the individuals were within UK jurisdiction and it had been wrong to transfer them without assurances as to future treatment, including as to the death penalty.97 Fourth, the case of Hamid Al-Sweady raised allegations of summary execution or ill-treatment of Iraqi prisoners following the Danny Boy battle in 2004. The litigation has been stayed pending the outcome of an Inquiry but not before the voicing of strong judicial criticism of the persistent and repeated failure of the Secretary of State to make fair disclosure.98 Fifth, in Serdar Mohammed v Ministry of Defence,99 detention beyond ninety-six hours in Afghanistan was found to be unlawful, leaving the military in the quandary of not wanting to release dangerous insurgents, not trusting abusive Afghani authorities to detain them, and not sure whether it would be possible to issue a notice of derogation so as to allow an off-the-shelf detention without trial code in UK law given doubts whether conflict in Helmand could really be said to threaten the life of the UK within the ECHR article 15.100 These trends towards mainstreaming military deployments are generally positive from the perspective of the rule of law and the protection of human rights, but, as with the opposite US 91 92 93 94 95 97 98 99 100 176

J Steyn,‘Guantanamo Bay’ (2003) 53 International & Comparative Legal Quarterly 1. See also P Sands, Lawless World (Allen Lane, London, 2005). [2007] UKHL 58. App No 27021/08, 7 July 2011 (2011) 53 EHRR 23. [2007] UKHL 26. App No 55721/07, 7 July 2011 (2011) 53 EHRR 18. Al-Saadoon and Mufdhi v United Kingdom, App No 61498/08, 2 March 2010. R (Al-Sweady) v Secretary of State for Defence (No.2) [2009] EWHC 2387 (Admin) [13], [44]. [2014] EWHC 1369 (QB). Ibid [155], [239].

Detention and interrogation in law and war

approach, several uncertainties remain. Some revolve around the demarcation between international human rights and IHL. For instance, further doubt has now been cast in Hassan v United Kingdom101 as to whether derogation is a feasible option. The ECtHR mused on the problem created by the extension of Article 1 ECHR to areas under ‘effective control’, such as occupied territories in conflict zones abroad. The Court realised that the ECHR Article 5 does not contain an exception for detention under IHL. Yet, it suggested that the absence of formal derogation would not prevent account being taken of IHL, which might provide a basis for lawful detention. It might be said that while this departure is unwelcome in that forcing governments into issuing a derogation notice, it provides certainty and the prospect of finality, though governments would say that it results in complex overlap and triggers court jurisdiction over matters for which it is ill-equipped to handle. As well as demarcation disputes, the application of full-blown human rights regimes in theatres of conflict can be tricky. For instance, there is some danger of watering down rights; in al Skeini, the ECtHR talked about applying article 2 ‘realistically’102 so that even a crucial human right to life might be applied in diluted form because of alleged military necessity. Another problem is that some human rights demands may be downright impractical, such as the availability of independent lawyers and legal aid. (b) Detention and interrogation

As well as lessons from the foregoing cases about military detention and interrogation in conflict zones, two independent inquiries into the treatment of military detainees have been completed: the Investigation into cases of deliberate abuse and unlawful killing in Iraq in 2003 and 2004 in 2008103 and the Baha Mousa Inquiry in 2011.104 Other investigations are pending.105 As a result of this ongoing reflection, the Ministry of Defence released in October 2011 revised rules about treatment by the military, the Joint Doctrine Publication 1-10: Captured Persons (JDP1-10: CPERS). The document embodies a very comprehensive response, which seems to draw upon policing experiences, and thereby moves further away from any ‘war on terror’ jurisdiction. As for detention periods and reviews, the guidelines are in line with the Baha Mousa Inquiry recommendation of transfer within fourteen hours. There must be a transfer from the point of capture to the unit holding area within six hours and then a transfer from the unit holding area after a further twelve hours. A relatively swift review of continued detention is then required. A tribunal will consider the evidence against CPERS within forty-eight hours of capture, to determine whether that individual should be released, transferred to the host nation for criminal prosecution, or whether there are sufficient grounds to intern for imperative reasons of security. If internment is necessary and justified, then the decision to continue internment must be frequently reviewed and no later than every twenty-eight days. The Permanent Joint Headquarters must review after six months (in line with Geneva Convention IV, article 43). In

101 102 103 104 105

App No 29750/09, 16 September 2014. App No 55721/07, 7 July 2011 (2011) 53 EHRR 18 [168]. (Ministry of Defence 2008). The author was Brigadier Robert Aitken. Report (2010-12 HC 1452). The chairman was Sir William Gage. See Al-Sweady Inquiry (www.alsweadyinquiry.org accessed 15 February 2015) and the Iraq Historic Allegations Team, reporting to the Iraq Historic Allegations Panel (https://www. gov.uk/government/groups/iraq-historic-allegations-team-ihat accessed 15 February 2015); see R (Mousa) v Secretary of State for Defence [2011] EWCA Civ 1334 and (no 2) [2013] EWHC 2941 (Admin)). 177

Stephen I Vladeck and Clive Walker

fact, after 2010, transfer to Afghani authorities after ninety-six hours under a bilateral memorandum of understanding of 2005 was viewed as too dangerous because of the risk of ill-treatment.106 The absence of independent review of longer-term detention was found to be a breach of article 5 in R (Serdar Mohammed) v Secretary of State for Defence.107 As for detention conditions, the point of capture and detention in the unit holding area represent the highest risks. So, detention officers and unit holding officers who are tasked to keep a daily occurrence book, though less specification than for the police as to what should be recorded and no requirement as to video recording (though it is in practice often conducted). Otherwise, the JDP1-10: CPERS ensures good standards in regard to accommodation, sleep, and food, which are highly redolent of policing specifications. Family visits are mentioned in the design of holding facilities, but they are not specified as to frequency. A medical examination is required within four hours of capture before interrogation and every twenty-four hours if the detainee is held in secure isolation. But it is not linked directly to interrogation sessions (save for the first) and specific record-keeping applies to the first examination only, save for a case of injury. Access to lawyers produced no recommendations. As for interrogation, the JDP1-10 offers full advice on the banning and meaning of the Five Techniques of Deep Interrogation (which had come to be ‘forgotten’).108 Hooding is banned in all circumstances, though blacked out goggles or blindfolds may be used. However, the government did not accept the proposed change of rules on ‘harsh’ interrogation. The Baha Mousa Inquiry stated that there was insufficient guidance as to what is meant by ‘harsh’ tactical questioning and interrogation – both ‘Loud Harsh’ (shouting) and ‘Cynical/Sarcastic Harsh’ (personally denigratory but somehow not ‘insulting’). The Inquiry proposed that harsh interrogation should never take place.109 However, it remains in the doctrine, and in Ali Hussein v Secretary of State for the Home Department,110 a challenge to the potential use of ‘harshing’ according to these rules was rejected by the High Court. (c) Conclusion

Prime Minister David Cameron commented on the release of the Baha Mousa Inquiry’s Report that ‘The British Army, as it does, should uphold the highest standards’.111 In reality, the army with the longest history of counterinsurgency experience in the world also has a recurrent history of seriously abusive treatment of detainees. It is not a problem easily solved by purely internal mechanisms since we cannot ever be sure that they will faithfully be internalised, especially when dealing with an entirely ill-disciplined adversary in a ‘war among the people’ in which ‘all the people, anywhere – are the battlefield. Military engagements can take place anywhere, with civilians around, against civilians, in defence of civilians. Civilians are the targets, objectives to be won, as much as an opposing force’.112

106 107 108 109 110 111

112 178

R (Evans) v Secretary of State for Defence [2010] EWHC 1445 (Admin). [2012] EWHC 3454 (Admin). Baha Mousa Inquiry, Report (2010-12 HC 1452) vol 1 para 2.1525. Ibid, vol III Pt XVI ch 2 paras 16.200, 16.209. [2013] EWHC 95 (Admin). J Bingham and A Hough 'Baha Mousa inquiry: David Cameron condemned the "truly shocking and appalling" abuse suffered by Iraqi hotel receptionist Baha Mousa in British Army custody' Telegraph (London, 8 September 2011) www.telegraph.co.uk/news/uknews/defence/ 8750944/Baha-Mousa-inquiry-David-Cameron-condemns-shocking-and-appalling-abuse.html accessed 15 February 2015. R Smith, The Utility of Force (Allen Lane, London, 2011) 5, 6.

12 Counter-terrorism policing and security arrangements Saskia Hufnagel

Introduction Policing has experienced significant changes in the light of terrorism. Amendments of legal provisions to better control the phenomenon of terrorism in particular have impacted on policing in a local and global context. Changing laws in relation to detention times and the questioning of suspects, as happened both in the 1970s in Europe and after September 11 globally, have in some countries, like Australia, the UK and the US, consequently changed the way law enforcement officers from a variety of agencies deal with terrorism suspects. The threat of terrorism since 9/11 generally has also led to a more or less global concerted effort by law enforcement agencies to work together by, for example, exchanging information and assisting each other with investigations. Within this cooperation, one could say that the law plays a minor role. More important here are informal networks and possibilities to exchange information quickly and efficiently.1 To ensure swift interaction between law enforcement actors in, for example, the area of information exchange, the formal established diplomatic channels might not always be sufficient. It could hence be assumed that the local and the global level of counter-terrorism policing follow opposite trajectories. While the fight against terrorism at the local level is ruled by formal regulation, ‘global’ or international and regional policing strategies seem to be dominated by informal networks. At the local level, substantive and procedural criminal laws created to fight terrorism might change policing practice. Whether this is in fact true, depends on the amount of terrorism investigations and whether these are sufficient to shape police behaviour. A number of studies suggest that there is not enough practical application of terrorism legislation to have this effect on policing, at least in societies that have not directly been affected by terrorism.2 At the international level, the policing of terrorism is a much more prominent concern. In the EU, for example, terrorism is one of the crimes mentioned in most legal frameworks justifying

1 2

See M Bayer, The Blue Planet – Informal International Police Networks and National Intelligence (NDIC Press,Washington DC, 2010) 25–42. See, for example, S Pickering, J McCulloch and D Wright-Neville, Counter-Terrorism Policing – Community, Cohesion and Security (Springer, New York, 2008) 91–2. 179

Saskia Hufnagel

police and justice cooperation measures.3 It also affects competences of EU agencies, such as Europol and Eurojust. It follows that while ‘ordinary crimes’ will trigger predominantly local policing efforts, ‘extraordinary crimes’, such as terrorism and organised crime, will occupy more significantly the international arena. Unlike policing at the local level, police behaviour at the international level is more disconnected from the law, while not necessarily being illegal. One could even go one step further and claim that police behaviour in the international arena has actually shaped the law, rather than being shaped by it. If this were indeed the case, global policing would be diametrically opposed to the situation at the local level. The present chapter addresses the international policing phenomenon with a view to counter-terrorism policing and security arrangements. It investigates whether, rather than being influenced by the law, police strategies in this area have indeed created law. To a certain extent, this assessment is easier to make than considering whether terrorism legislation has changed policing at the national level. The reason for this is that states have developed a vast variety of legal approaches to counter-terrorism policing, and many different police cultures exist that might or might not be influenced by the introduction of terrorism legislation. This chapter therefore avoids study of different national systems, specific legislation or instances of police responses. It rather examines the development of global and regional systems, in particular the EU. Policing strategies at the regional level can be formalised as in the EU but are rarely so at the international level. This discrepancy will be further examined. The first part of this chapter deals with the broadest possible phenomenon, the development of international police cooperation mechanisms in the fight against terrorism. The second part addresses the EU as an example of a regional system that maintains probably the highest level of legal regulation in the area of police and security cooperation against terrorism. A particular focus is put on whether the international or regional regulation of police and security cooperation investigated in this chapter have been influenced by practitioners, or whether the laws have been shaped without any involvement of the law enforcement profession. The third part of the chapter investigates why and when police practices develop into formal regulation in the area of terrorism and the similarities and differences between the international and EU strategies. It is not possible within one chapter to give a comprehensive overview of all international and regional policing and security arrangements in the area of counter-terrorism. Four policing and security arrangements have therefore been selected as examples of pertinent strategies. The choice of strategies has been made on the basis of the most prominent mechanisms in the literature as opposed to the most ‘efficient’ mechanisms according to practitioner perceptions. At the international level, the most prominent cross-border law enforcement strategy in terrorism cases in the literature is Interpol. At the regional level it is Europol. However, based on practitioner accounts, the most efficient strategy at the international level is the deployment of

3

180

See, for example, Article 3 Europol Decision (Council Decision of 06 April 2009 Establishing the European Police Office (Europol), [2009] OJ L 121/37; henceforth also ‘Europol Decision’. Previously, under Art 2 of the Europol Convention:‘terrorism, unlawful drug trafficking and other serious forms of international crime’ (Council Act of 26 July 1995 Drawing up the Convention based on Art K.3 of the Treaty on European Union on the Establishment of a European Police Office (Europol Convention), [1995] OJ C316/2)); Art 2 Council Framework Decision 2002/584/JHA of 13 June 2002 on the European Arrest Warrant and the Surrender Procedures Between Member States, [2002] OJ L190/1; Art 14 Council Framework Decision 2008/ 978/JHA of 18 December 2008 on the European Evidence Warrant for the Purpose of Obtaining Objects, Documents and data for use in Proceedings in Criminal Matters, [2008] OJ L350/72.

Counter-terrorism policing and security arrangements

International Liaison Officers (ILOs) and, at the EU level, the Police Working Group on Terrorism. These four strategies are distinct with a view to their legal establishment, operation and functions in the area of counter-terrorism investigations. Some were established by practitioners; others by governments in a top-down process. Some are informal; others are rooted firmly in a legal basis that can be enforced through national and regional (EU) courts. They will all be assessed here as examples of the differences in law generation in the field of transnational counter-terrorism policing and security arrangements and the impact the law-making process might have on the perceived practicality of such measures.

International policing and security arrangements Transnational or international legal regulations play a minor role in the area of counter-terrorism policing. International, as opposed to regional or EU, strategies of cooperation between sovereign nation states are always informal. To clarify the terminology, ‘international strategy’ does not mean a bilateral or multilateral strategy. The latter obviously also exist and have been formalised by legal regulation between sovereign nation states (such as mutual legal assistance treaties). ‘International strategy’ in the present context either means a strategy (whether legal or not) of police cooperation established between all or most nations of the world, or a strategy that is bilateral or multilateral, but has as a strategy been applied between most nations of the world. Limited by this definition, only two such strategies are discussed in this part of the chapter. The first and most commonly cited in the academic literature is Interpol.4 Interpol relies on police-to-police cooperation through informal networks and informal police cooperation mechanisms. The second, which is established at the bilateral and multilateral level, but has developed between most nations of the world, is the deployment of ILOs, who are bound by the law of home and host states, but rarely by international treaties or agreements. Relating to the ‘norm generation’ hypothesis mentioned above, many authors have, however, outlined the potential of ILOs to create such legislation or at least to actively participate in the process of international or transnational norm generation.5 With regard to the development of these two international police and security cooperation mechanisms, terrorism can be considered one of the main drivers. Interpol was initially intended to support the fight against ‘terrorism’ – in those days termed a response to ‘radical political opposition’.6 Indeed, the first permanent international body of security cooperation was only established in Vienna as the International Criminal Police Commission (ICPC) in 1923, but first negotiations on cooperation at a similar level had been initiated long before, after

4

5

6

See, for example, M Anderson, Policing the World: Interpol and the Politics of International Police Cooperation (Oxford University Press, Oxford, 1989); M Deflem, ‘International Police Cooperation Against Terrorism: Interpol and Europol in Comparison’ in H Durmaz and others (eds) Understanding and Responding to Terrorism (IOS Press,Amsterdam, 2007); M Deflem,‘Europol and the Policing of International Terrorism: Counter-Terrorism in a Global Perspective’ (2006) 23 Justice Quarterly 336; M Deflem, The Policing of Terrorism – Organizational and Global Perspectives (Routledge, New York, 2010) Ch 7. D Bigo, ‘Liaison Officers in Europe: New Officers in the European Security Field’ in J Sheptycki (ed.), Issues in Transnational Policing (Routledge, London, 2000) 67–99; B Bowling ‘Transnational Policing: The Globalization Thesis, a Typology and a Research Agenda’ (2009) 3(2) Policing 149; S Hufnagel, Policing Cooperation Across Borders: Comparative Perspectives on Law Enforcement within the EU and Australia (Ashgate, Farnham, 2013). C Fijnaut, ‘International Policing in Europe: Its Present Situation and Future’ in JP Brodeur (ed.), Comparisons in Policing: An International Perspective (Avebury, Aldershot, 1995) 115, 116. 181

Saskia Hufnagel

the assassination of the Empress Elizabeth in 1898 in Geneva.7 So, quite literally, an act of terrorism had spurred cooperation efforts in the field. The aim of the ICPC was similarly the prevention of terrorism, in particular in the aftermath of the effects of the First World War and the Russian Revolution.8 In 1946, following the Nazification of the ICPC, the organisation was re-established in Paris and emerged, in its current form, after 1989 in Lyon.9 Interpol is not subject to ‘legal regulation’ but remains an informal police initiative. Thus, at the international level, police practice does not seem to create law. Interpol today has limited formal competence in relation to the fight against terrorism. By contrast, Europol focuses on ‘organised crime, terrorism and other forms of serious crime’ according to Article 3 of the Council Decision of 6 April 2009 Establishing the European Police Office.10 However, Interpol, unlike Europol, is under the definition employed for the purpose of this chapter, a truly international cooperation mechanism since membership is open to all nations of the world, whereas full membership of Europol is limited to EU member states. The limitation of Interpol to ‘ordinary crime’ exists because Article 3 of the Interpol Constitution11 forbids its involvement in political, military, religious and racial matters. As a result, unlike Europol, Interpol could for many years not play a prominent role in the fight against terrorism.12 However, the heightened sensitivity towards terrorism in the late 1970s and 1980s intensified global efforts to promote cross-border police cooperation, for example by reinterpreting Article 3 of the Interpol Convention to enable cooperation in the investigation of terrorism, as a category of ‘political crime’.13 Today, Interpol participates in terrorism investigations (or at least the investigation of constituent crimes) and has, since 2002, formed its own ‘Fusion Task Force’ to assist member states. The agency is hence an international strategy in police and security cooperation in the fight against terrorism, but without manifestation of legal formalisation, whether inter-governmental or resulting from practitioner efforts. Turning to the mechanism of ILOs, police-to-police cooperation between different nations has always existed as an informal strategy, but was severely restricted by nation state’s sovereignty concerns. In the nineteenth century, police action across borders was mostly related to socalled ‘political offences’. Most operations in foreign countries at the time were covert, not

7 8 9 10

11 12 13

182

J Occhipinti, The Politics of EU Police Cooperation: Toward a European FBI? (Lynne Rienner Publishers, Boulder, 2003) 29. Fijnaut, ‘International Policing in Europe’ (n 6) 116. M Deflem, Policing World Society (Oxford University Press, Oxford, 2002) 179; Occhipinti (n 7) 29. [2009] OJ L 121/37 (the ‘Europol Decision’). Previously, under Art 2 of the Europol Convention: ‘terrorism, unlawful drug trafficking and other serious forms of international crime’ (Council Act of 26 July 1995 Drawing up the Convention based on Art K.3 of the Treaty on European Union on the Establishment of a European Police Office (Europol Convention), [1995] OJ C316/2). See Art 3 of the International Criminal Police Organisation-INTERPOL Constitution, adopted 1956. See, in relation to the competences of Interpol, C Fijnaut,‘Policing Western Europe: Interpol,Trevi and Europol’ (1992) 15 Police Studies International Review 102. See Art 3 of the International Criminal Police Organisation-INTERPOL Constitution (adopted 1956): ‘It is strictly forbidden for the Organization to undertake any intervention or activities of a political, military, religious or racial character.’ See also the interpretation of Art 3: INTERPOL, Neutrality: Article 3 of the Interpol Constitution. Available at: www.interpol.int/About-INTERPOL/ Legal-materials/Neutrality-Article-3-of-the-Constitution accessed 7 November 2011. See further M Deflem and LC Maybin, ‘Interpol and the Policing of International Terrorism: Developments and Dynamics Since September 11’ in LL Snowden and BC Whitsel (eds), Terrorism: Research, Readings and Realities (Pearson, New York, 2005) 176–8.

Counter-terrorism policing and security arrangements

cooperative, and often operated as unilateral espionage operations.14 However, such political policing sometimes involved at least some bilateral and multilateral contacts between police, for example, through the ‘personal correspondence system’ between police officials and the distribution of alerts relating to wanted suspects.15 The ‘ILO’ strategy has gradually become an official strategy for police cooperation in most countries of the world since the 1970s. The first ‘official’ police ILOs were posted to foreign countries by Germany and the Netherlands in the 1970s.16 The establishment and initial need for ILOs differed according to the historical and political context of each country establishing them. In Germany, Sweden and the Netherlands, for example, the establishment of police liaisons was closely linked to drug law enforcement, and their first officers were posted to Thailand.17 ILOs are, on the one hand, subject to the national legislation of their home country and, on the other hand, bound by the legislation of the host state. They are not part of the police of the receiving state, hence they cannot exercise enforcement powers on foreign territory, but their main task is to exchange information and coordinate investigation efforts.18 Their deployment can be based on specific bilateral or multilateral treaties and agreements, depending on whether the liaison is deployed to one or more countries or is derived from more general bilateral agreements on diplomatic relations.19 The binding international legal frameworks, where they are specific, can in addition to the national legislation determine the scope of the deployment and can either limit or broaden the ILO’s tasks. With a view to the establishment of regulation through police practice, several authors have highlighted the establishment of bilateral or multilateral regulation through ILOs by, for example, being involved in the establishment, or even driving the creation of informal interagency agreements (often memoranda of understanding), but also transnational (formal and informal) treaties and agreements obligating nation states. The officers themselves thereby both broaden and restrict their competences in international deployment according to the specific needs in the country they are posted to.20 ILOs are conferred with extensive professional discretion to enable them to adapt to situational factors in different systems. A major advantage of their employment is considered to be the informality with which they can cooperate with other jurisdictions.21 However, the establishment of legal regulation seems to be important to shape their deployment situation irrespective of whether these rules widen or limit their competences. While not specific to terrorism investigations, this shows that police might not randomly use a legal void in the international arena to broaden their powers, as has often been

14 15 16

17

18 19

20 21

Deflem Policing World Society (n 9) 47; L Clutterbuck, ‘Countering Irish Republican Terrorism in Britain: Its Origin as a Police Function’ (2006) 18 Terrorism and Political Violence 95, 97. Deflem Policing World Society (n 9) 47. S Hufnagel,‘Australian Liaison Officers – Connecting the World Down-Under’ in M den Boer and L Block, Liaison Officers: Essential Actors in Transnational Policing (Eleven International, The Hague, 2013) 53. L Block, From Politics to Policing.The Rationality Gap in EU Policy-Making (Eleven International, The Hague, 2011) 171; see in relation to Germany Bundeskriminalamt ‘Verbindungsbeamte des BKA im Ausland’. Available at: www.bka.de/DE/DasBKA/Aufgaben/InternationaleFunktion/Verbindungs beamte/verbindungsbeamte__node.html?__nnn=true accessed 26 December 2011. Ibid 166. The use of liaison officers posted abroad by law enforcement agencies of member states of the EU is commonly encouraged and facilitated (Decision 2003/170/JHA, 27 February 2003).The Nordic states also collectively send liaison officers to host states. Bigo (n 5) 67–99; Bowling (n 5) 155. Block From Politics to Policing (n 17) 170. 183

Saskia Hufnagel

suggested in national terrorism contexts,22 but that they create norms that can potentially give international terrorism suspects more legal security in how law enforcement cooperation is carried out in transnational terrorism investigations. It can be concluded that these two international police cooperation strategies are not in general legally regulated. However, it can be noted that in bilateral and multilateral international contacts police practitioners do promote the regulation of their practice, thereby both broadening and limiting their competences in such contexts.

EU strategies The EU is a far more complex system to assess with a view to the legal regulation through police practice as this region encompasses a multitude of bilateral, multilateral and EU level contexts in which such regulation processes can eventuate. To put the assessment of EU strategies in the fight against terrorism into context, a general introduction to EU police cooperation strategies is first provided. Like at the international level, police cooperation within the EU has developed from initially informal structures established at practitioner-to-practitioner level. However, since the 1950s, more and more legal regulation developed, culminating in probably the most comprehensive framework on police cooperation, the 1985 Schengen Convention. As mentioned before, many bilateral and multilateral cooperation mechanisms, some of which were informal and others based on binding legal frameworks, exist in this regional context next to the formal EU initiatives. All of them are more or less based on police practices between neighbouring countries or clusters of neighbouring states. Some of these formal and informal practitioner initiatives influenced later EU legislation in the field. A number of binding legal frameworks were developed with a view to facilitating police cooperation, especially since the 1990s. Furthermore, a police agency, Europol, has been established, which, though bereft of enforcement powers, has the potential to coordinate inter-jurisdictional cooperation between EU member states. So, despite the importance of informal police-to-police cooperation, crossborder policing in the EU is now more formalised than police cooperation between sovereign nation states elsewhere.23 Regional police cooperation in the EU equally entails more legally binding strategies in relation to the transjurisdictional policing of terrorism offences than elsewhere. In relation to multilateral cooperation strategies between clusters of EU member states, both formal and informal police cooperation strategies can be found influencing this formalisation process from

22

23

184

See, for example, AR Bellino, ‘Changing Immigration for Arabs with Anti-Terrorism Legislation: September 11th was not the Catalyst’ (2002) 16 Temple International and Comparative Law Journal 123, showing the expansion of US anti-terrorism laws towards immigration control. See EU legal instruments in V Mitsilegas, EU Criminal Law (Hart, Oxford, 2009) 8–18. For the relationship between EU and international cooperation see C Rijken,‘Legal and Technical Aspects of Co-operation between Europol, Third States and Interpol’ in V Kronenberger (ed.), The European Union and the International Legal Order: Discord or Harmony? (Asser Press/Kluwer Law International, Antwerp, 2001).

Counter-terrorism policing and security arrangements

the bottom-up. Similar to the international level, the creation of such strategies has sometimes been triggered by terrorism or the closely related ‘policing of political opponents’.24 In the 1950s, the first formalised structure of police cooperation developed between the Nordic states – Denmark, Finland, Norway, Sweden and Iceland. Their cooperation was based on longstanding practice and not only limited to policing. The Nordic countries formalised their police cooperation practice through the Nordic Passport Control Agreement (NPCA) in 1957.25 This abolished passport controls at common borders of participating countries.26 The NPCA established a system similar to the Schengen Convention27 long before other European states initiated closer cooperation.28 The informality that reigns within this first formal European cooperation structure is, however, striking. Steps towards implementing a Nordic model more widely across the EU were taken in 2005, when Sweden proposed the Draft Framework Decision on Simplifying the Exchange of Information and Intelligence29 to the EU Council. This proposal found great resonance at EU level, and the end of 2006 the so-called ‘Swedish Initiative’ was adopted.30 A policing practice thereby moved to a multilateral formal level, which then in turn influenced EU level legal regulation. Other successful contemporary multilateral co-operation mechanisms between groups of EU member states include the 1968 Cross Channel Intelligence Conference between the UK, France, Belgium and the Netherlands; the 1962 Treaty on Extradition and Mutual Legal Assistance in Criminal Matters between the Benelux countries; and a number of Police and Customs

24

25

26

27

28

29

30

See, for example in relation to the cooperation between German states in the nineteenth century, C Fijnaut, Opdat de Macht een Toevlucht Zij? Een Historische Studie van het Politieapparaat als een Politieke Instelling (Kluwer, Antwerp, 1979) vol 2, 798; HH Liang, The Rise of Modern Police and the European State System from Metternich to the Second World War (Cambridge University Press, Cambridge, 1992) 18–19, 33–4; N Gerspacher, ‘The History of International Police Cooperation: A 150-Year Evolution in Trends and Approaches’ (2009) 9 Global Crime 169, 171; or with regard to counter-terrorism cooperation in the French–Spanish border region, B Hoffman, ‘Is Europe Soft on Terrorism?’ (1999) 115 Foreign Policy 62. Also see the Convention Between Denmark, Finland, Norway and Sweden Concerning the Waiver of Passport Control at the Intra-Nordic Frontiers, signed on 12 July 1957 (the ‘Nordic Passport Convention’). Iceland acceded to the Convention on 24 September 1965. The Convention has been amended by agreements of 2 April 1973, 27 July 1979 and 18 September 2000. C Joubert and H Bevers, Schengen Investigated: A Comparative Interpretation of the Schengen Provisions on International Police Cooperation in the Light of the European Convention on Human Rights (Kluwer Law International, Antwerp, 1996) 31. Convention Implementing the Schengen Agreement of 14 June 1985 Between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the Gradual Abolition of Checks at their Common Borders, signed 19 June 1990, [2000] OJ L 239/19 (entered into force 1 September 1993). The Nordic Cooperation Agreement (NCA), a more developed regional police and judicial cooperation framework, was established in 1962. There followed the establishment of the Nordic Police and Customs Cooperation (in Norwegian: PTN) in 1984. The parties to the PTN agreed upon a common instruction manual incorporating basic guidelines for police cooperation. Council of the European Union, Draft Framework Decision on Simplifying the Exchange of Information and Intelligence Between Law Enforcement Authorities of the Member States of the European Union, in Particular as Regards Serious Offences Including Terrorist Acts, [2004] Doc 10215/04 (the ‘Draft Framework Decision on Simplifying the Exchange of Information and Intelligence’). Council Framework Decision 2006/960/JHA on Simplifying the Exchange of Information and Intelligence Between Law Enforcement Authorities of the Member States of the European Union, [2006] OJ L 386/89. 185

Saskia Hufnagel

Cooperation Centres (PCCC)31 as established in several border regions of the EU.32 These diverse regional (formal and informal) strategies form a patchwork of cooperation mechanisms throughout the EU, but have provided the platform for the 1990 Schengen Convention,33 the most comprehensive legal framework on police co-operation in the EU. Regional, formal and informal practitioner initiatives thereby contributed to formalisation of EU strategies. At the EU, rather than the multilateral member state level, mechanisms to combat terrorism have evolved mainly through processes of formalisation, but a number of informal mechanisms developed simultaneously. This phenomenon implies that informal mechanisms were and are still needed to promote effective information exchange in the area of counter-terrorism policing rather than purely relying on formal EU measures. Looking at the developments described so far, one could also assume that the prevailing informal mechanisms have the potential to further influence EU regulation. Hence, policing practice will keep on influencing the law-making in this field. After the events of 9/11, the Justice and Home Affairs (JHA) Council started to initiate topdown or vertically enhanced cooperation among EU member states’ intelligence services. A Counter-Terrorism Task Force was created within Europol. Member states were invited ‘to appoint liaison officers from police and intelligence services specialising in the fight against terrorism’.34 The Club of Berne35 formed a consultation group of directors of counterterrorism departments, meeting quarterly, to provide guidance to Europol’s counter-terrorism experts.36 On 14 March 2003, the EU and the North Atlantic Treaty Organisation (NATO) signed an agreement on the security of information, a prerequisite for the exchange of intelligence between the two organisations.37 EU-level formal policing and security cooperation mechanisms involved in the fight against terrorism now comprise Europol, Eurojust, the EU Counter-Terrorism Coordinator, the Terrorism Working Party (TWP) of the Council of the EU to the European Parliament, the Council Working Group on Terrorism (COTER), the Article 36 Committee (CATS), the Council Standing Committee on Operational Cooperation in Internal Security (COSI) and the Situation Centre (SitCen).38 Other European initiatives in the field include the Counter Terrorism Group (CTG), the Police Working Group on Terrorism (PWGT) and the G6 (the Group of Six is the unofficial group of interior ministers of the six EU member states with the

31 32

33 34 35

36 37

38

186

PCCCs are by now a crucial cross-border policing strategy in the EU. About 40 PCCCs and about 16 ‘joint police facilities’ (with less operational influence) have been established throughout the EU. O Felsen, ‘European Police Co-operation: The Example of the German-French Centre for Police and Customs Co-operation Kehl (GZ Kehl)’ in S Hufnagel, S Bronitt and C Harfield (eds), CrossBorder Law Enforcement Regional Law Enforcement Co-operation – European, Australian and Asia-Pacific Perspectives (Routledge, London, 2012) 73. Hufnagel, Policing Cooperation Across Borders (n 5) 59. European Union, ‘Conclusions Adopted by the Council (Justice and Home Affairs), Brussels, 20 September 2001’ (Brussels, 20 September 2001). See eg C Hillebrand, Counter-Terrorism Networks in the European Union: Maintaining Democratic Legitimacy after 9/11 (Oxford University Press, Oxford, 2012) 1939; J Argomaniz, The EU and Counter-Terrorism: Politics, Polity and Policies after 9/11 (Routledge, London, 2013) 50. S Lefebvre, ‘The Difficulties and Dilemmas of International Intelligence Cooperation’ (2003) 16 International Journal of Intelligence and CounterIntelligence 527, 530–1. Council of the European Union,‘Agreement between the European Union and the North Atlantic Treaty Organization on the Security of Information’ PESC 599, COSDP 463 (Brussels, 18 December 2002). M den Boer, C Hillebrand and A Nölke, ‘Legitimacy under Pressure: The European Web of Counter-Terrorism Networks’ (2008) 46 Journal of Common Market Studies 101, 102.

Counter-terrorism policing and security arrangements

largest populations). Clearly based on binding legal agreements between EU member states are EU-level formal mechanisms, and most prominently Europol and Eurojust. The other mechanisms can be considered more or less informal and practitioner driven. All ‘formal’ EU cooperation mechanisms above are geared to facilitate information and intelligence analysis and exchange. They are either EU bodies or administratively supported by EU institutions. The ‘informal’ mechanisms, such as the CTG, the PWGT and the G6 are initiatives that allow the participation of non-EU countries – which could be the reason for their informality – and have formed under a variety of agreed structures. They are not necessarily based on international treaties or binding legal agreements, but rather on policing practice developed over time. Their important influence on international police and justice cooperation has, however, frequently been outlined in the literature and even more prominently by practitioners themselves.39 It can be concluded that as the number of participating states increases, the more important is the involvement of practitioners to develop ‘informal’ structures. It could hence be assumed that the higher the number of participating different systems the more difficult it becomes to establish ‘formal’ structures. Legal regulation in relation to substantive criminal law has, in the area of terrorism, also been achieved at EU level. Furthermore, these offences also trigger the competences of European agencies, such as Europol and Eurojust. In the EU, the creation of harmonised legislation in the field has been enhanced since the Amsterdam Treaty in 1999 and, in particular, the Tampere Conclusions and the Hague Programme.40 While pre-Amsterdam criminal offences and sanctions were harmonised by means of first pillar ‘prohibitions’, third pillar conventions and combined first and third pillar measures, after Amsterdam, most harmonisation in this field was created by framework decisions.41 These included the criminalisation of a large variety of offences, such as terrorism,42 drug trafficking43 and Euro currency counterfeiting.44 EU action in the field thereby extended the scope of criminal law at the national level, as it created offences that did not exist before in all member jurisdictions.45 With a view to policing and security arrangements, the existence of common terrorism offences creates a more harmonised field for law enforcement and a common understanding and goal for practitioners. One might therefore conclude that the regulation at EU level has in this field the potential to influence counter-terrorism policing practice. So, contrary to the assumption stated at the outset of this chapter, there might in this respect be some interaction between the practitioner and the legislator level in the EU in the area of counter-terrorism policing and security arrangements.

39 40

41 42

43

44

45

See for an extensive overview on the legitimacy of all EU counter-terrorism initiatives: den Boer, Hillebrand and Nölke (n 38) 102–3. European Parliament, Tampere European Council, 15 and 16 October 1999, Presidency Conclusions. Available at: www.europarl.europa.eu/summits/tam_en.htm; The Hague Programme: Strengthening Freedom, Security and Justice in the European Union, [2005] OJ C 53/1. Mitsilegas (n 23) 86. Council Framework Decision 2002/475/JHA of 13 June 2002 on Combating Terrorism, [2002] OJ L164/3 (as amended by 2008/919/JHA of 28 November 2008). See further Chapter 13 (Meliá and Petzche) in this book. Council Framework Decision 2004/757/JHA of 25 October 2004 Laying Down Minimum Provisions on the Constituent Elements of Criminal Acts and Penalties in the Field of Illicit Drug Trafficking, [2004] OJ L335/8. Council Framework Decision 2000/383/JHA on Increasing Protection by Criminal Penalties and Other Sanctions Against Counterfeiting in Connection with the Introduction of the Euro, [2000] OJ L140/1 (amended in 2001). Mitsilegas (n 23) 88. 187

Saskia Hufnagel

Considering the vast array of formal and informal strategies as well as multilateral and EUwide cooperation mechanisms in the fight against terrorism outlined above, only Europol and the PWGT are here selected for more detailed discussion. What both strategies have in common is that they were initially created to compensate for the lack of competences in the area of terrorism of Interpol. Europol was initially only promoted because of terrorism concerns. It was furthermore, unlike the PWGT, not a strategy that has been developed by practitioners or even with practitioner participation. Hence, the initial European police and security community reaction towards it was not particularly welcoming. However, one of the strategies developed within Europol, the ILO network, was the first to be embraced by practitioners. The reason for this could be seen in the fact that they were already used to this mechanism in an international context. Also, work within the IO framework provides officers with considerable room to manoeuvre and cooperate informally. The particular importance of the PWGT for terrorism police cooperation in Europe cannot be highlighted without putting it into the context of Europol and, in particular, Europol’s forerunner, the TREVI (Terrorism, Radicalism, Extremism and Violence) group of ministers. The PWGT and Europol will therefore be discussed together. The PWGT was and still is a very secretive police network on terrorism that only became known to the general public after the events of 9/11. It began as an initiative between France, Germany, the Netherlands and the UK in 1976. So, for about 20 years this network operated more or less underground, with the exception of one brief emergence to the surface (its integration into TREVI) that will be the main focus of this analysis.46 The PWGT has been selected here as an example of an informal counter-terrorism network as it has frequently been claimed to be one of the most efficient counter-terrorism networks and still processes more information in the field than Europol.47 It was the first EU-wide policing network that focused on a particular subject matter and hence also the first platform through which counter-terrorism information was shared between (then) EC member states. The PWGT, while being a secretive practitioner network, was known to the participating governments through their officers from the beginning. Practitioners networking within the PWGT were part of national counter-terrorism agencies.48 The PWGT today includes police and intelligence services from all EU member states, as well as Norway and Switzerland. They meet on a biannual basis for networking and knowledge exchange purposes and – similar to formal EU police cooperation initiatives – organise officer exchanges. There is furthermore a computerised system of information exchange between members, which started operating in 1988.49 At the European level, the creation of Europol was the result of several initiatives towards a common European security policy since the 1970s, and was also closely related to terrorist events in its early beginnings. The first move towards Europol was the establishment of the TREVI group of ministers in 1975.50 It has been claimed that the establishment of the TREVI

46

47

48 49 50

188

P Swallow, ‘Counter-Terrorist Police Cooperation in the European Union: Political Ambitions and Practical Realities’ (Paper delivered at the RAND-LATEW Conference in Santa Monica, California, 1 June 2005) 4. See, for example, Block, From Politics to Policing (n 17) 57–8. According to Block, the PWGT is since 1994 based on an MOU between the participating agencies, setting out the aims of this group. However, for the purpose of the present analysis it is considered an informal network as an MOU is not legally enforceable. den Boer, Hillebrand and Nölke (n 38) 117. Block, From Politics to Policing (n 17) 57–8. Occhipinti (n 7) 33; S Skinner,‘The Third Pillar Treaty Provisions on Police Cooperation: Has the EU Bitten off More than it can Chew?’ (2002) 8 Columbia Journal of European Law 208.

Counter-terrorism policing and security arrangements

group was the manifestation of a ‘federal’ European spirit, which was thereafter confirmed by the signing of the Single European Act in 1985.51 A more practical reason was Interpol’s lack of competences in the field of terrorism and, more generally, political crimes as well as distrust of some of its participating countries.52 TREVI’s four working parties covered terrorism (Working Party One, in which the PWGT had been integrated for a limited period of time), general police affairs, organised crime and drugs (since 1985), and the temporary ‘TREVI 1992’.53 Despite the existence of a so-called ‘TREVI Acquis’,54 the initiative was not based on a formal legal arrangement and operated outside the European Community legal framework.55 However, its structure, as established by the TREVI Acquis, and the documents enacted by the TREVI group, were integrated into Title VI of the Treaty on European Union in late 1993.56 As an initially informal network,TREVI has been criticised for several shortcomings, such as the high level of secrecy surrounding its operations, the lack of a clear legal basis, the lack of democratic control of its activities, its ad hoc and informal character and the lack of cooperation between its working groups.57 However, TREVI was established at a time when broader political cooperation in the field of JHA was first placed on the inter-governmental cooperation agenda within the subsequently established EU.58 With its establishment, police cooperation was, for the first time, taken out of the hands of practitioners and addressed at the EU level. The incorporation of TREVI within the third pillar of the EU highlights the impact of even informal forums and purely practitioner-led initiatives on EU legal regulation. As a response to 1970s terrorism, additional police cooperation arrangements were established. Since Interpol could not assist (or be trusted to assist) in relation to terrorism, for the reasons noted above, police agencies in France, Germany, the Netherlands and the UK moved to establish an informal counter-terrorism network, the PWGT, in 1976 to facilitate information exchange.59 Nine months later, the importance of the initiative was acknowledged by TREVI and the PWGT was adopted as TREVI’s Working Party I.60 However, the police practitioners within the Working Party felt uncomfortable when confronted with politicians and perceived the meetings to be less directed at practical or operational concerns.61 Therefore, the PWGT separated from TREVI in 1979 and was re-established as a distinct entity, this time

51 52 53

54 55 56 57 58 59 60 61

Occhipinti (n 7) 33. M den Boer and N Walker, ‘European Policing after 1992’ (1993) 31 Journal of Common Market Studies 4, 6. TREVI 1992 was operational between 1988 and 1992 and considered security challenges relating to the gradual abolition of borders in the EU. See J Klosek, ‘The Development of International Police Cooperation Within the EU and Between the EU and Third Party States: A Discussion of the Legal Bases of such Cooperation and the Problems and Promises Resulting Thereof ’ (1999) 14 American University International Law Review 599, 615. Rijken (n 23) 579. Mitsilegas (n 23) 162. J Benyon, ‘The Politics of Police Co-operation in the European Union’ (1996) 24 International Journal of the Sociology of Law 353, 361-362. Klosek (n 53) 615; Occhipinti (n 7) 43; Mitsilegas (n 23) 6. M Deflem, ‘Europol and the Policing of International Terrorism: Counter-Terrorism in a Global Perspective’ (2006) 23 Justice Quarterly 336, 341. Swallow (n 46) 4. Ibid. P Swallow,‘European Police Cooperation: A Comparative Analysis of European Level Institutional and Organisational Developments and National Level Policies and Structures’ (PhD Thesis, University of Southampton, 1998) 138. 189

Saskia Hufnagel

under the leadership of the Dutch, German, Belgian and UK police and intelligence agencies.62 This development was propelled by the assassination of the British Ambassador to the Netherlands, Sir Richard Sykes, by Provisional IRA terrorists in March 1979 in The Hague.63 It follows that the practitioners participating in the PWGT perceived its inclusion in the overarching European framework as inhibiting effective practice. Although the PWGT is an informal network, it is widely regarded as one of the most effective mechanisms available for the coordination of international policing, intelligence-sharing and investigative efforts in the field of counter-terrorism.64 The fact that the initiative sought to address existing concerns within police cooperation practice undoubtedly increased its chances of operational success. The existence of informal next to formal strategies in EU police cooperation highlights the importance of both in enhancing effective cooperation. It also highlights the fact that in the area of terrorism policing and security arrangements, formalisation or the creation of legal regulation from police practice might not always be beneficial to efficiency. The establishment of a separate institution outside the formal inter-governmental arena by practitioners suggests that in order for cross-border policing practice in terrorism investigations to remain effective and influence the direction of policy and law reform, it must first evolve at the practitioner level. Police practitioners have a high level of acceptance of multilateral initiatives, though it must be noted that when these are ultimately integrated into a formal legal framework, the increased bureaucratic burden is typically resented and resisted, as already indicated in relation to Europol.65 A ‘one size fits all’ approach to counter-terrorism strategies with regard to the generation of regulation in this field therefore does not exist. The third working group of TREVI, on serious and organised international crime, which was also responsible for matters related to drug trafficking, discussed a network of Drugs Liaison Officers66 and developed the idea of a European central drugs intelligence unit.67 The first initiative taken was the European Drugs Unit (EDU), which can be seen as an embryonic Europol.68 While the creation of a common European police agency had been discussed in a German practitioner forum since 1974, other European countries had not supported it and the proposal by the then German Chancellor Helmut Kohl in 1991 threw member states off their guard; German enthusiasm was quickly curbed by only allowing the first step of the proposal, EDU information exchange, but not an operational European Police Office.69 However, an ad hoc working group concerning the concept of Europol started work in 1991. The establishment of Europol was formalised in the 1992 Maastricht Treaty, ahead of a detailed separate Convention. As it was understood that the establishment could take some time, the EDU continued in

62

63 64 65 66

67 68 69 190

P Swallow, ‘Networks: the Contribution of the Police Working Group on Terrorism and Europol’ (Paper presented at the European Law Enforcement Responses to International Terrorism Workshop, Police International Counter-Terrorism Unit (PICTU), in partnership with the University of Southampton and the University of St Andrews, Scotland, 9–10 June 2004). J Benyon and others, Police Cooperation in Europe:An Investigation (University of Leicester, Leicester, 1993) 187. P Swallow, ‘European Police Cooperation’ (n 61) 42. See, more generally, M Anderson and others, Policing the European Union: Theory, Law and Practice (Oxford University Press, Oxford, 1995) 77–8. Klosek (n 53) 614; J Benyon and others, ‘Understanding Police Cooperation in Europe: Setting a Framework for Analysis’ in M Anderson and M den Boer (eds), Policing across National Boundaries (Pinter, London, 1994) 46, 60. Occhipinti (n 7) 34; Benyon (n 56) 353–79. Occhipinti (n 7) 34. Ibid 35.

Counter-terrorism policing and security arrangements

the meantime, gathering and exchanging intelligence related to drug trafficking. It was based on an inter-governmental agreement between the TREVI ministers but not a European legal framework. While terrorism had been very important in the establishment of TREVI, it was not particularly high on the agenda during the establishment of Europol. Drug law enforcement was clearly more important in the 1990s. However, this position would change after 2001. In the form of the EDU, Europol started limited operations on 3 January 1994.70 Its tasks were the analysis of information on drug trafficking, money laundering and criminal organisations involved, as well as facilitating the exchange of intelligence between law enforcement agencies in the member states.71 The Europol Convention was signed on 26 July 1995, but its entry into force was significantly delayed, since, being a third pillar instrument, it required ratification by all member states.72 The Europol Convention has since been amended by a number of protocols, mostly extending the agency’s competences and, in particular, giving it the opportunity to participate in joint investigation teams and propose the initiation of criminal proceedings.73 On 6 April 2009, the Europol Convention was replaced by the Europol Decision 2009/371/JHA and thereby even further integrated into the European legal framework. As already noted, it has often been claimed that the establishment of Europol has been facilitated by the lack of competences in the area of terrorism of Interpol. It can, however, be observed that historically, Europol had a much stronger focus on drug than terrorism offences during its establishment. The significant proportion of messages exchanged through Interpol by EU member states (e.g. thirty-eight per cent in 2009) shows the importance of the Interpol information exchange mechanism for EU police cooperation.74 Interpol’s existence could therefore put into question the necessity for Europol as it is still used more frequently by EU member states, and the reinterpretation of Article 3 of the Interpol Convention now also allows information exchange with regard to terrorism offences. This might even indicate higher levels of acceptance among police practitioners towards the informal Interpol initiative, and less acceptance towards the formalised Europol agency.75 However, unlike Interpol, Europol has been promoted more as a channel for serious and organised crime and sensitive information rather than ‘ordinary crime’ and basic information. Therefore, Europol is by its nature a more important and exclusive, and thereby secure, channel. Also, a considerable increase of the Europol channel use can be expected through the implementation of its new information exchange system (SIENA).76 This system connects the

70 71 72 73

74 75

76

Benyon (n 56) 367. Ibid. Mitsilegas (n 23) 164. See Protocol Amending the Convention on the Establishment of a European Police Office (Europol Convention) and the Protocol on the Privileges and Immunities of Europol, the Members of its Organs, the Deputy Directors and the Employees of Europol, [2002] OJ C312/2. See Block, From Politics to Policing (n 17) 55. According to International Criminal Police Organisation (Interpol), General Secretariat Annual Report 2008 (Interpol, Lyon 2009) 3–5, 11. For a more exhaustive assessment, see L Block, ‘Beknopte Geschiedenis en Praktijk van Politiesamenwerking in Europa’ (Lecture Booklet for Annual Lecture on the History of Police Cooperation in Europe, the Tactical Leadership Course for Senior Investigating Officers at the Netherlands Police Academy, 2010, Unpublished) 8–9, 24. Europol, The European Investigator – Targeting Criminals Across Borders (2011) 7 www.europol.europa. eu/sites/default/files/publications/the_european_investigator__2011.pdf; Europol, Annual Report 2008 (2009) 35. SIENA is the acronym for Secure Information Exchange Network Application. 191

Saskia Hufnagel

Europol National Units in the member states directly with each other. The Units can then exchange messages without the Europol Liaison Officers as an extra step in the process, which makes information exchange by Europol more competitive with Interpol.77 It can be expected that the number of messages exchanged between police from the EU member states through Interpol will decrease in favour of an increase of the information sent through SIENA.78 The Interpol channel is hence not generally more accepted by practitioners than Europol, and this attitude might grow with a view to future developments. It follows that Interpol, as an informal, practitioner-led initiative, has and is still advancing EU police cooperation. Through its shortcomings in relation to terrorism offences, it triggered TREVI and subsequently Europol. It can, however, be concluded that practitioners seem to be torn between the tempting informality of Interpol and the restrictive nature of Europol regulation of information exchange. A further proof of this police ‘dilemma’ in relation to terrorism information exchange is apparent within the Europol agency. Europol consists of the director, the actual database, an ILO network and the national units. Falling short of operational powers, Europol is supported by an EU-wide network of ILOs, who exchange information and intelligence on transnational crime on a very informal basis.79 This network is of particular importance, as the exchange of sensitive information requires a high level of trust, not only between the member states but also between the police practitioners on the ground.80 The ILOs of all member states, and even non-EU member states, are co-located in one building to encourage the establishment of close working relationships. The ILOs are not supervised by Europol, which gives them greater freedom to cooperate informally.81 Practitioners have readily accepted this network, unlike the database, and appreciate the opportunity to know their counterparts from other member states personally, as it enhances trust. Also, the possibility to cooperate formally, as well as informally, within this network is stated to be an advantage.82 Unlike the regional cooperation strategies, discussed above, Europol did not develop organically over a long period of time. It is therefore unsurprising that many member states and police practitioners initially opposed it.83 Europol thereby highlights the reluctance of police practitioners to be bound by a higher level EU bureaucracy imposed by Brussels. What is remarkable about the Europol set-up is that the formal structure is supplemented with the much more informal mechanism of ILOs with a vast amount of professional discretion and the possibility to informally exchange information. It follows that even within the Europol structure there is a tendency towards informality with regard to information exchange, which also became visible in all other terrorism cooperation strategies outlined above.

77 78 79 80 81 82 83

192

Ibid. Ibid. Art 9, Europol Decision. See I Loader, ‘Policing, Securitisation and Democratisation in Europe’ (2002) 2 Criminal Justice 126, 128. Mitsilegas (n 23) 165. Ibid 165–6. Ibid. National resistance to the establishment of Europol and, in particular, the debate about enforcement powers was also a prominent issue between member states; see Mitsilegas (n 23) 165–6 and Occhipinti (n 7) 29–46, 51–75.

Counter-terrorism policing and security arrangements

Conclusion It follows from the assessment of policing and security strategies in this chapter that most strategies in the area of counter-terrorism at the international and EU levels are practitioner driven and either informal or supplemented by informal mechanisms. In contrast to the international level, many bilateral and multilateral practitioner initiatives at the EU level have generated new legislation in the field, confirming the assumption that many practitioner initiatives in the area of counter-terrorism in the EU led to formal regulation. However, the assessment has also shown that next to these formalised structures, informal mechanisms prevail to ensure efficiency should formal channels prove too slow and cumbersome. Going back to the strategies at the international level, Interpol can be considered the most prominent international police cooperation mechanism. Its nature is informal as the agreement of police forces to cooperate, considering the diverse standards of the police participants, cannot be enforced the same way as between a more homogenous group of states with similar standards of policing and criminal justice, as well as common value systems (such as within the EU). It has further become manifest that terrorism and police cooperation are closely interlinked. Many international, regional and national police cooperation strategies that exist today had their basis in some ‘terrorist’ event or the ‘policing of violent political opponents’ and are based on practitioner initiatives, both on the international as well as on the EU level.84 More generally, the study leads to the conclusion that the more states with differing standards are involved in a counter-terrorism police cooperation initiative, the more informal and practitioner driven the strategy will be. Even when cooperation mechanisms are formalised, they are frequently supplemented with informal cooperation structures. This becomes particularly apparent in the examples relating to the EU, where informal methods supplement formal structures to assure swift and flexible information exchange for practitioners. Another illustration is that the PWGT is open to non-EU member states and therefore consists of more parties than, for example, Europol. While Europol has so-called ‘third states’ participating in it, these are not full members and they do not have the same level of access to Europol information. This is different in the PWGT setting, which prevents it from being a formalised institution. Looking at these examples, it seems that the regulation of police cooperation procedures is unlikely at the international level, but could eventuate and develop more in the future at the EU regional level, where a vast amount of formalised strategies sit beside informal ones. Looking, for example, at Europol, its cooperation strategies fluctuate between international (ILOs, information exchange) and formal (participating in and initiating investigations) mechanisms. In conclusion, it can be said that most of the formal cooperation strategies discussed in this chapter have developed out of practitioner initiatives. Compared with the nationally driven terrorism legislation at state levels, transnational regulation of policing and security arrangements, at least in the EU context, therefore seem to be driven by police practitioners, confirming the studies by Bigo and Bowling relating to ILOs. Informal police cooperation mechanisms will, however, always exist next to the regulation practitioners have driven forward, as they are swift and free of bureaucracy.

84

Fijnaut (n 5) 115, 116. 193

13 Precursor crimes of terrorism Manuel Cancio Meliá and Anneke Petzsche

Introduction When dealing with the subject of precursor crimes of terrorism one first has to ask, ‘What exactly is meant by this term?’ While the term is frequently used in articles in the field of terrorism law,1 it is difficult to find a clear and mutually agreed upon definition. Therefore it is imperative to first define how this term ought to be understood and conceptualised, since only by giving it a precise definition can it be usefully employed in academic debate. Thus, the aim of this chapter is to narrow the definition down to its relevant core, to discuss the problematic developments in this field of law and then to present suggestions on how to resolve the identified problems. There are two possible meanings of the term ‘precursor crimes’ in the specific realm of terrorism,2 as it can be understood in a broader or in a more restrictive sense. In its broader meaning, ‘precursor’ crimes can be understood as basically any act, whether it be any preparatory act that in any way facilitates a terrorist crime without falling itself into the category of terrorism law (for example, robbery or forgery of documents), or it can be an act only criminalised in this specific area, constituting a preparation to the ‘core crime’ of the terrorist act itself (such as homicide, murder, kidnapping, etc.)3 In its more restrictive application, precursor crimes of terrorism can be understood as only such conduct that is considered a criminal offence in relation to a specific terrorist activity (for example, collaboration with a terrorist

1

2

3

194

See C Walker, Terrorism and the Law (Oxford University Press, Oxford, 2011) paras 5.10, 5.33, 5.42, 5.87, 5.90 who considers, inter alia, the Terrorism Act 2000, ss 54 (‘weapons training’), 56 (‘directing terrorist organisations’) and Terrorism Act 2006, s 5 (‘preparation of terrorist acts’) to be precursor offences. In a broader sense, the notion of ‘precursor crimes’ is generally used to mark the shift from a posthoc-orientation of the whole criminal justice system to a preventive orientation of private and public security agencies, including criminal law (see, for instance, L Zedner, ‘Pre-crime and postcriminology?’ (2007) 11(2) Theoretical Criminology 261); this is especially true in the case of terrorism; see C Walker, ‘Terrorism and criminal justice: past, present and future’ [2004] Criminal Law Review 311; M Cancio Meliá, ‘Terrorism and criminal law: the dream of prevention, the nightmare of the rule of law’ (2011) 14 New Criminal Law Review 108. This notion of ‘precursor’ arises in connection with organised crime offences under the US legislation: Racketeering Influenced and Corrupt Organisations Act 1970 (18 USC s 1956) and the Continuing Criminal Enterprises Act 1970 (21 USC s 848).

Precursor crimes of terrorism

organisation, financing, glorification). In recent years, there has been a new development in many European countries to penalise acts in the preliminary stages to a terrorist attack, therefore generally falling into the latter category of precursor crimes. Recent examples of such legislation in the UK are the TA 2000, section 54 (engagement in weapons training) and section 56 (directing a terrorist organisation), as well as the broadest example of all, in the TA 2006 section 5, which forbids ‘any conduct in preparation’ of terrorism. In Germany, examples include the sections 89a, 89b, 91 of the German Criminal Code (StGB) that punish the preparation of a serious violent offence endangering the state, establishing contacts for the purpose of committing a serious violent offence endangering the state and encouraging the commission of a serious violent offence endangering the state. In Spain, examples are found in sections 576, 576bis, 578 and 579.1 of the Spanish Criminal Code (Código Penal – CP) relating to collaboration in, glorification of and preparation of terrorist acts.4 In order to use the term ‘precursor crime’ to identify a certain development in counterterrorism law across many different countries, it is important to understand it in the restrictive sense. Only by applying a narrow reading can the term be used as a starting point for criticism that might ultimately lead to solutions to this development – a goal that cannot be achieved by using the term too broadly and thus getting lost in the academic debate in sorting out the limits instead of using the term to contribute to how to react to such a development. Therefore, in this chapter we shall use the term in a restrictive sense and deal with the second group of offences, criminalising conduct exclusively when related to terrorist offences. The fact that several such offences have been introduced in recent years in different national criminal codes – a reaction to the emergence of the so-called ‘new’ terrorism – will allow us on the one hand to take a profound measure of the situation regarding the criminalisation of terrorism. On the other hand, the characteristics of these offences being a special development in the area of terrorism will make it especially clear how counter-terrorism law has strayed from the path of ‘ordinary’ criminal law that is based on the rule of law.

The function of precursor crimes Having identified the strict meaning of the term ‘precursor crime’, the next step is to depict the proper function of these offences. Their alleged purpose is to combat the dangerousness and risk posed by terrorists even while ‘only’ preparing a terrorist crime. But are these new additions to Europe’s criminal codes really only meant to prevent different forms of (material) collaboration with terrorist activities such as the national legislators want us to believe?5 Or rather, do they criminalise – at least, in some cases – the expression of political or ideological support for terrorist groups, in which case the constitutional implications, particularly in

4

5

This development is partly due to European requirements to penalise terrorist preparatory acts as required by the Council of Europe Convention on the Prevention of Terrorism 2005 (ETS 196) and the European Framework Decision 2008/919/JHA. In terms of the latter, see M Cancio Meliá ‘The Reform of Spain’s Antiterrorist Criminal Law and the 2008 Framework Decision’, in F Galli and A Weyenbergh (eds), EU counter-terrorism offences: what impact on national legislation and case-law? (l’Université Libre de Bruxelles, Brussels, 2012) 99. For example, the German legislature, when introducing a draft law on the subject matter, stressed that only preparative acts for ‘serious violent offence endangering the state’ were to be criminalised as they were requiring the earliest possible intervention of criminal law because of their dangerousness: Bundestag-Drucksache 16/12428, 1. Available at: http://dip21.bundestag.de/dip21/btd/ 16/124/1612428.pdf accessed 25 June 2014. 195

Manuel Cancio Meliá and Anneke Petzsche

relation to freedom of speech and of ideology, would be evident? Furthermore, the question arises whether all the conducts criminalised are indeed punishable acts – not in the formalistic sense that the legislator has created a criminal offence encompassing the specific behaviour, but in the sense that the offence only penalises what indeed should be penalised because of imminent danger.6 In order to answer these questions, we shall examine more closely as test cases the Spanish and German precursor crimes, highlighting the problems that arise. Based on our findings, the preventive efficiency of such precursor crimes in terrorism law will be subsequently discussed.

Collaboration or ideological support? The Spanish case The additions introduced in 2010 into the CP with Law 5/2010 aim to redefine the offence of collaboration to include what might be referred to as incitement, propaganda, indoctrination and training activities of terrorist organisations. But was such an addition to the CP really needed in Spain’s legal battle against terrorism? It appears not. First, the definition is factually unnecessary: the recruitment, training and education of subjects for the inclusion in a terrorist organisation is a typical behaviour of those involved in such an organisation. Therefore, they already fit under the crime of belonging to a terrorist organisation. Second, if, occasionally, there may be an outsourcing of their activities to people who are not members of the organisation, all such forms of behaviour are characterised as collaborative from the outset. The first and second subsections of Article 576 of the CP already contain explicit references to ‘the organisation or attendance of practical training’ along with a general clause that includes ‘any other equivalent form of cooperation, assistance or intervention’. It would therefore seem that the definition of this new act is completely unnecessary.7 Third, the aspects of the legislation that deal with conduct relating to indoctrination are disturbing and pave the way towards the incrimination of mere expressions of opinion. How are we to define ‘indoctrination’ in a way that separates it from legitimate freedom of expression? How do we distinguish between it and the offence of ‘justification’ of

6

7

196

In German law the core question is whether a punishment serves the protection of a legal interest (Rechtsgut), see C Roxin, Strafrecht Allgemeiner Teil I (4th edn, CH Beck, Munich 2007) s 2 para 1 et seq; R Hefendehl, ‘Das Rechtsgut als materialer Angelpunkt einer Strafnorm’, in R Hefendehl, A von Hirsch and W Wohlers (eds), Die Rechtsgutstheorie – Legitimationsbasis des Strafrechts oder dogmatisches Glasperlenspiel? (Nomos Verlagsgesellschaft, Baden-Baden, 2003); MD Dubber, ‘Theories of Crime and Punishment in German Criminal Law’ (2005) Buffalo Legal Studies Research Paper 2005/02. Available at: http://ssrn.com/abstract=829226 accessed 1 December 2013; A Petzsche, ‘Punishability of Preparatory Acts in German Criminal Law’ in A Sinn (ed.), Menschenrechte und Strafrecht – Beiträge zur 4. Sitzung des International Forum on Crime and Criminal Law in the Global Era (V&R Unipress, Göttingen, 2013). This principle differs from the Anglo-American approach that mainly focuses on the ‘harm principle’, meaning that the actions of individuals should only be limited to prevent harm to other individuals. On the difference to the theory of legal interest, see: A von Hirsch, ‘Der Rechtsgutsbegriff und das „Harm Principle”’ in R Hefendehl, A von Hirsch and W Wohlers (eds), Die Rechtsgutstheorie – Legitimationsbasis des Strafrechts oder dogmatisches Glasperlenspiel? (Nomos Verlagsgesellschaft, Baden-Baden, 2003). Likewise R García Albero, ‘La reforma de los delitos de terrorismo, arts 572, 573, 574, 575, 576, 576 bis, 577, 578, 579 CP’, in G Quintero Olivares (ed.), La reforma penal de 2010: análisis y comentarios (Aranzadi, Cizur Menor, 2010) 369 f, 376; M Llobet-Anglí, ‘Delitos de terrorismo’ in I Ortiz de Urbina Gimeno (ed.), Memento Experto Reforma Penal 2010 (Lefebvre, Madrid, 2011) n 6106.

Precursor crimes of terrorism

terrorist crimes, which carries a much more lenient sentence for its perpetrators under Article 578 of the CP?8 What does it mean to say that the indoctrination is ‘directed’ at the commission of terrorist crimes?9 The problems with interpretation are endless. The principle of legality, as expressed in the statement of purpose, is severely at risk.10 Thus, this addition is unnecessary, redundant and disruptive. Lastly, it must be observed that the legislature is out of touch with reality when it refers to the European Framework Decision 2008/919/JHA (‘Framework Decision’) to explain the new definition.11 The Framework Decision makes no mention of ‘indoctrination’; it refers only to ‘provocation to commit a terrorist offence’ (in addition to the recruitment and training already included, as aforementioned, in Article 576 (1) of the CP. Furthermore, the Framework Decision instead stipulates that ‘the expression of radical or controversial public opinion with regards to sensitive political issues, including terrorism, falls outside the scope of this Framework Decision, particularly of the definition of public provocation to commit terrorist offences.’12 Thus, the mysterious ambiguities that have given rise to what the Spanish legislature refers to as ‘legal qualms’13 either do not exist or just mean that the scope of the new definition is incompatible with the rule of law. The EU is not responsible for this disastrous state of affairs, but it serves once again as a spurious pretext for poor national legislation.14 The 2010 reform in Spain introduces a second new development with reference to collaboration: the criminalisation of behaviour related to the financing of terrorist organisations. This new offence does not come into Spanish law under the influence of the Framework Decision, but is a consequence of the International Convention for the Suppression of the Financing of Terrorism 1999.15 In any case, this specialist matter should have been included in the money laundering regulations but is now a part of the reform based, according to the Spanish legislature, on the Framework Decision. In the first paragraph of Article 576 of the CP, the supply or gathering of funds for the commission of terrorist crimes or for a terrorist organisation is declared illegal. In the second paragraph, reckless conduct in connection with malicious financing is also declared illegal and the third paragraph establishes the individual’s legal liability. ‘Malice’ is defined as behaviour carried out ‘in any way, directly or indirectly’ to provide or gather funds for the commission of terrorist crimes or for a terrorist organisation. As clarified by the text itself, it is enough that the financing be carried out ‘with the intention of being used, or in the knowledge that it will be used’, which is to say, it is not necessary that the funds have any practical consequence.

8 9 10

11 12 13 14

15

See O Ribbelink, Apologie du Terrorisme’ and ‘Incitement to Terrorism (Council of Europe, Strasbourg, 2004). Preparatory acts of encouragement or provocation are already covered by Art 579(1) I of the CP. In this sense see F Muñoz Conde, Derecho penal. Parte Especial (18th edn,Tirant lo Blanch,Valencia 2010) 929 f; T S Vives Antón and others,‘Terrorismo’ in TS, Vives Antón and others, Derecho penal. Parte Especial (3rd edn,Tirant lo Blanch, Valencia 2010) 792 et sq. Preamble, XXIX, para 4. Para 14. Preamble, XXIX, para 4 of the new reform Act No 5/2010. A problematic behaviour often used by national legislatures trying to justify problematic laws. Another example is s 89b of the German Criminal Code as the German legislature also cited ‘Europe’ as an ‘excuse’ for the law. Because while the legislature expressly referred to the Council of Europe Convention on the Prevention of Terrorism 2005, s 89b punishes neither ‘public provocation to commit a terrorist offence’ (Art 5), ‘recruitment for terrorism’ (Art 6) nor ‘training for terrorism’ (Art 7). (UNGA Resolution 54/109 of 9 December 1999); in force in Spain since 9 May 2002. 197

Manuel Cancio Meliá and Anneke Petzsche

Basically, an unwanted act (the receiving of funds by terrorists) is criminalised by adding a subjective element such as ‘knowingly’, which ultimately leads to evidentiary difficulties. This definition of conduct – in its plain meaning without modification or adaptation – reiterates the definition contained in the International Convention for the Suppression of the Financing of Terrorism 1999, Article 2. Here, too, we have a completely unnecessary and redundant offence definition. The types of conduct that deal with effective economic support included in the new text are already referred to as a means of collaborating with a terrorist organisation in the CP, under Article 576 or in the pre-existing and equally redundant Article 575.16 Thus, this new definition makes no useful contribution to the overall utility of the CP. When dealing with the mere act of gathering funds ‘with the intention that those funds might be used’, but without making actual contact with the organisation, the definition intends only to punish the intention and, moreover, carries with it the same penalty that exists for those who uncover an individual’s personal information or who provide arms or funding, that is, the most serious forms of collaborative conduct contained in Article 576(1) of the CP. The legislature completely ignored the rulings of the Spanish Constitutional Court, which warned about the unconstitutionality of an unlimited and indiscriminate classification for conduct of varying severity. The confusion today continues between Articles 576 and 575 (which are still in force), and has meant that exactly the same cases receive incongruous sentences, an occurrence that will become more frequent now as a result of this entirely unnecessary new development. The legislator was warned: the report of the General Council of the Judiciary regarding the 2007 preliminary draft indicated that in any event, this provision should be included as a new subsection of Article 576 of the CP instead of as a different Article, and failing that, ‘absurd interpretational difficulties’ would ensue.17 Recklessness is referred to in the Law 10/2010 of 28 April, which deals with the prevention of money laundering and terrorist financing, and in turn responds to the European Parliament and Council Directive 2005/60/CE of 26 October 2005 relating to the prevention of the use of the financial system for money laundering and terrorist financing. Regardless of the evaluation of this legal mechanism, it seems clear that this offence should not have been included under crimes of terrorism. The illegal aspect of the offence is money laundering – a definition chosen, for example, by the German legislature.18 In any case, it is not a terrorist crime per se as it lacks the essential elements of such an offence, all of which include malice. The 2010 reform incorporates in the second paragraph of Article 579(1) of the CP a new type of residual offence that could be described as propaganda. The conduct is typically understood as the distribution or dissemination by whatever means of ‘messages or slogans’ intended to ‘provoke, encourage or promote’ terrorist offences, ‘generating or increasing the

16 17

18

198

See, in detail, M Cancio Meliá, Los delitos de terrorismo: estructura típica e injusto (Reus, Madrid, 2010), 256 et sq. Available at: www.poderjudicial.es/cgpj/es/Poder-Judicial/Consejo-General-del-Poder-Judicial/ Actividad-del-CGPJ/Informes/Informe-al-Anteproyecto-de-Ley-Organica-por-la-que-semodifica-la-Ley-Organcia-10-1995--de-23-de-noviembre--del-Codigo-Penal 146 accessed 25 October 2014. Albeit, the German legislature also decided to criminalise some financial acts in the terrorist precursor crime of s 89a(2) of the German Criminal Code ‘Subsection (1) above shall only be applicable if the offender prepares a serious violent offence endangering the state by… 4. collecting, accepting or providing not unsubstantial assets for the purpose of its commission.’ For more on s 89a, see the next section.

Precursor crimes of terrorism

risk of their actual commission’. The messages or slogans must be directly linked to the risk of commission of an offence. The new wording ought to be regarded as deeply flawed, clearly unconstitutional and one that raises considerable difficulties of implementation. The legislature continues from here on a road towards criminalising the mere belief in a (terrorist) ideology.19 With respect to the matter of constitutionality, besides being a veiled reference to the Framework Decision, what is clear is that, in its entirety, this text does not comply with the Spanish Constitution. In this respect, it deals plainly and simply with the criminalisation of ideological adherence, that is to say, a subject matter that is even less than an apologie or justification.20 If you add to this offence the new description of ‘indoctrination’ contained in the CP, Article 576(3), the crime of terrorist threats in Article 170(2) and the crime of glorification in Article 578, it is notable that in terms of substance, the definition of terrorist crimes has been extended to include the mere expression of an opinion. Consequently, a whole host of worrying opportunities for the criminalisation of expression and protest have been made available. It seems clear that the Spanish law has gone beyond what is to be constitutionally permitted in a society driven by the rule of law. Finally, it should also be stressed that the legislature is not being truthful when it uses the Framework Decision as a justification for the introduction of the term of ‘indoctrination’. The Framework Decision only requires the inclusion of ‘provocation to commit a terrorist offence’, understood to include the publication of messages to incite the commission of said terrorist offences, behaviour that was already covered by the CP (in Article 579(1)) and which is different from what is now included in the reform.21 It is one thing to induce, and another to commentate, on terrorist offences. Regarding the latter, by dint of an ambiguous definition – also harmful to the principle of legality – the legislation opens the door to endless flaws, interpretative confusion and also potentially wrongful outcomes in practice: Does it ‘encourage’ the ‘perpetration’ of terrorist crimes to yell, for example, ‘gora ETA militarra’?22 Or is exaltation (glorification) instead, to be considered amongst the conduct included in Article 578 of the CP? Or is it perhaps a provocation as defined by Article 579(1) of the CP? Or might it even be subsumed under ‘a public cry for the commission of violent acts’ by a terrorist organisation, as laid out in Article 170(2) of the CP? Judging from the elements of crime that were introduced by these new additions, there is no way to know. A criminal policy is not rational if it leads to the arrest and prosecution of individuals who engage in this kind of demonstration for terrorist crimes.23 The very fact that the legislature intervened here – albeit on improper, but very revealing terms that warned about the potential ‘breeding ground’ for terrorism24 – indicates that there is space in the new legal definition for the criminalisation of all types of sympathisers or alleged sympathisers and thereby provoking

19 20 21

22 23

24

Cancio Meliá, Los delitos de terrorismo (n 16) 248 f, with additional references. In the words of T Vives Antón and others (n 10) 795, ‘preparatory acts of preparatory acts’ are punished. See M Cancio Meliá, ‘Delitos de organización: criminalidad organizada común y delitos de terrorismo’ in J Díaz-Maroto y Villarejo (ed.), Estudios sobre las reformas del Código penal (Thomson Reuters, Cizur Menor, 2011) 643 et sqq, 656 et sqq. A common slogan of ETA supporting militants, meaning ‘long live ETA, military section!’ As an example: the German legislature – which delved deeply into this area in the 1970s and 1980s – abolished the criminalisation of propaganda in the year 2001, limiting it to cases in which members of an organisation use this propaganda in order to recruit new members. Preamble, XXIX, para 4. 199

Manuel Cancio Meliá and Anneke Petzsche

an action/reaction phenomenon that, despite being well understood, has the potential to be developed further through the new definition.25

Broadening the scope of criminal law: The German case In 2009, the German legislature passed the ‘Law for the prosecution of the preparation of serious violent offences endangering the state’ as a reaction to the threat of international terrorism, in particular those posed by terrorist training, the use of the internet in order to prepare terrorist attacks, and lone perpetrators.26 This law introduced three new offences in the StGB. First, under section 89a, a person who prepares a serious violent offence,27 which is an offence against life28 or personal freedom,29 intending to and capable of endangering the existence or security of a state or of an international organisation, or to abolish, rob of legal effect or undermine constitutional principles of the Federal Republic of Germany,30 is punishable by imprisonment of between six months and ten years. Second, section 89b creates an offence of establishing contacts with the intention of receiving instruction for the purpose of the commission of a serious violent offence endangering the state with a maximum punishment of three years’ imprisonment or a fine.31 There will be no offence if the act exclusively serves the fulfilment of lawful professional or official duties.32 Third, section 91 creates an offence of ‘encouraging the commission of a serious violent offence endangering the state’. There will be no offence if the act serves the purpose of citizenship education, the defence against anti-constitutional movements, arts and sciences, research or teaching, reporting about current or historical events or similar purposes or exclusively serves the fulfilment of lawful professional or official duties. All three sections criminalise preparatory acts and therefore substantially widen the scope of German criminal law by conferring a preventive character. The purpose is to increase legal protection from terrorist attacks and correct deficiencies in the criminalisation of terrorist preparatory acts by broadening the scope of criminal law to encompass the preliminary stages of terrorist acts. To understand the breadth of these newly introduced offences, it is interesting to note that all three sections waive the requirement of being an accessory to a terrorist act and instead punish the preparatory acts separately and independently of any following actions; therefore, no terrorist act needs to ever occur in order to punish the person committing the preparatory act. All three sections have been heavily criticised by German legal scholars,

25 26 27 28 29 30 31 32 200

See Cancio Meliá, Los delitos de terrorismo (n 16) 62 et sq, 72 et sq, 77, with further references. Bundestag-Drucksache 16/12428, 1. Available at: http://dip21.bundestag.de/dip21/btd/16/124/ 1612428.pdf accessed 25 June 2014. Under the conditions listed in s 89a(2). Ss 211 or 212. Ss 239a or 239b. Note the offence has limited extraterritorial effect under s 89a(4). Again, there is limited extraterritorial effect under 89b(3). S 89b(2).

Precursor crimes of terrorism

questioning not only their design but also the basic legitimacy of such offences.33 In order to understand the criticism and its importance to the debate on precursor crimes, the relevant sections have to be examined more closely. Section 89a StGB34 penalises preparatory acts for serious offences against life or personal freedom35 that have a certain objectively likely outcome (‘which under the circumstances is… capable of ’) and also a subjective aim (‘which under the circumstances is intended to’) with reference to state security. These serious offences belong to the inner core of the offences that are typically committed by terrorists and are punishable with imprisonment of a minimum of five years or even life sentence. The section requires a person to prepare a serious offence endangering the state while specifying in section 89a(2) of the StGB the relevant offences. However, section 89a(2) StGB clarifies that only certain acts of preparations fall under the offence and offers an exhaustive list of possible acts such as ‘instructing another person or receiving instruction in the production or the use of firearms, explosives…’ In order to demonstrate the general problem that such a criminal offence poses, the following example will be given:36 in June 2013, the German Federal Prosecutor authorised the premises of two men of Tunisian origin in the area of Stuttgart and in Belgium to be searched.37 These men were suspected of having collected information and items for the commission of terrorist bombings, which they allegedly intended to detonate using remote-controlled model airplanes as a transportation device for the explosives. The aim of the searches was to obtain evidence of possible plans and preparations of an attack. So far there has been no arrest of any suspects as a result of these searches. This case shows that in the area of terrorism an intervention of law enforcement authorities well before anything at all has happened – after all so far only a model airplane had been bought – is not only theoretically possible, but is indeed done in practice. Law enforcement authorities have reacted to neutral, preparatory acts such as buying a model airplane, which is combined with vague indications of malice. Though the final outcome of the investigation of the Tunisians is awaited, suppose that, while searching only for model airplanes and their

33

34 35 36 37

See, inter alia, O Backes, ‘Der Kampf des Strafrechts gegen nicht-organisierten Terror – Anmerkungen zum Referentenentwurf eines Gesetzes zur Verfolgung der Vorbereitung von schweren Gewalttaten’ [2008] Strafverteidiger 654; R Deckers and J Heusel, ‘Strafbarkeit terroristischer Vorbereitungshandlungen – rechtsstaatlich nicht tragbar’ [2008] Zeitschrift für Rechtspolitik 169; K Gierhake, ‘Zur geplanten Einführung neuer Straftatbestände wegen der Vorbereitung terroristischer Straftaten’ [2008] Zeitschrift für internationale Strafrechtsdogmatik 397; U Sieber, ‘Legitimation und Grenzen von Gefährdungsdelikten im Vorfeld von terroristischer Gewalt – eine Analyse der Vorfeldtatbestände im „Entwurf eines Gesetzes zur Verfolgung der Vorbereitung von schweren staatsgefährdenden Gewalttaten“’ [2009] Neue Zeitschrift für Strafrecht 353; B Weißer, ‘Über den Umgang des Strafrechts mit terroristischen Bedrohungslage’ [2009] 121 Zeitschrift für die gesamte Strafrechtswissenschaft 132; A Petzsche, Strafrecht und Terrorismusbekämpfung – Eine vergleichende Untersuchung der Bekämpfung terroristischer Vorbereitungshandlungen in Deutschland, Großbritannien und Spanien (Nomos Verlagsgesellschaft, Baden-Baden, 2013). See, on s 89a, A Petzsche, ‘The European Influence on German Anti-Terrorism Law’ (2012) 13 German Law Journal 1056, 1061; Petzsche, Strafrecht und Terrorismusbekämpfung (n 33) 135. This refers to the StGB, ss 211 and 212 (murder and manslaughter), and ss 239a and 239b (abduction for the purpose of blackmail and taking hostages). For a similar example in the UK, see the case of Saajid Badat, see Walker (n 1) para 5.103. On this case see www.zeit.de/politik/deutschland/2013-06/deutschland-terroranschlagislamisten-modellflugzeuge; www.focus.de/politik/deutschland/tid-32036/razzien-bei-moeg lichen-terrorzellen-islamisten-planten-anschlag-mit-modellflugzeugen_aid_1025007.html accessed 26 June 2014. 201

Manuel Cancio Meliá and Anneke Petzsche

operating instructions, notes on intentions to commit a terrorist crime had been found. In Germany this behaviour would constitute a criminal offence under sections 89a(2) No. 2 or 3 of the StGB. Under the section, liability falls on anyone who ‘if the offender prepares a serious violent offence endangering the state by… producing, obtaining for himself or another, storing or supplying to another weapons, substances or devices and facilities’ or by ‘obtaining or storing objects or substances essential for the production of weapons, substances or devices and facilities.’38 In fact, the same legal outcome is also true for the UK and Spain.39 Therefore an act without harm or potential harm is criminalised and potentially subject to severe punishment. The described acts are penalised, despite the fact that until now only a preparatory act such as buying a model airplane was carried out.40 Thus, through this case some of the problems of these offences are revealed that relate to all three jurisdictions. These include, inter alia, the significant broadening of the objective scope of criminal law and, consequently, that the subjective element is more and more central to the allegation of a criminal conduct, so that the risk of creating thought crimes is now imminent. Moreover, the complexity and uncertainty of these offences as well as their disproportionality because of the threat of substantial punishment must be noted. Thus, section 89a poses many problems in terms of constitutional values and the rule of law. Yet, the German legislature went even further in penalising preparatory acts by passing section 89b of the StGB, which criminalises ‘establishing contacts for the purpose of committing a serious violent offence endangering the state’.41 The actus reus element of this provision merely requires establishing or maintaining contact with an ‘organisation within the meaning of section 129a [of the StGB]’ (in other words, a terrorist organisation under section 129a), an act that in itself clearly does not consist of any criminally relevant behaviour. The perceived ‘dangerousness’ that warranted criminalisation only becomes apparent in relation to the mens rea, whereby the action must be taken with ‘the intention of receiving instruction for the purpose of the commission of a serious violent offence endangering the state’.42 The purpose of this section is to criminalise anyone who contacts a terrorist organisation with a view to receiving training in a terrorist training camp.43 Attending terrorist training camps is increasingly common, especially in Islamist terrorist circles, and consequently has become a

38 39

40

41 42 43

202

StGB, s 89a(2) 1. In Spain, this would be covered by the CP, s 576(1) or (3) and in the UK by the Terrorism Act 2006, s 5(1)(a) or (b): ‘a person commits an offence if, with the intention of — (a) committing acts of terrorism or (b) assisting another to commit such acts, he engages in any conduct in preparation for giving effect to his intention.’ It is interesting to note that in Germany, Spain, and the UK there exists the same general principle of non-punishability of preparatory acts, see M Brockhaus, Die strafrechtliche Dogmatik von Vorbereitung,Versuch und Rücktritt im europäischen Vergleich: Unter Einbeziehung der aktuellen Entwicklungen zur Europäisierung des Strafrechts (Verlag Dr Kovac, Hamburg, 2006) 157 et seq, 279; A Petzsche, ‘Punishability of Preparatory Acts in German Criminal Law’ in A Sinn (ed.), Menschenrechte und Strafrecht – Beiträge zur 4. Sitzung des International Forum on Crime and Criminal Law in the Global Era (V&R Unipress, Göttingen, 2013) 68. But a number of statutory exceptions to that rule also exist, for example, in England and Wales, there exists the offence of ‘going equipped for stealing’ in s 25 of the Theft Act 1968, and Spanish law contains the offence of ‘proposal’ (proposición) in s 17(2) of the CP and of ‘provocation’ (provocación) in s 18(1) of the CP. On s 89b in general see Petzsche, Strafrecht und Terrorismusbekämpfung (n 33) 187. StGB, s 89b. Bundestag-Drucksache 16/12428, 12, 16. Available at: http://dip21.bundestag.de/dip21/btd/16/ 124/1612428.pdf accessed 25 June 2014.

Precursor crimes of terrorism

priority for security and law enforcement agencies.44 In order to find such a camp, one requires an intermediary, such as a member of the organisation managing the camp that helps with travel arrangements. Hence, the actual training is targeted directly through criminal law ideally in order to prevent it from happening or to punish this conduct if training takes place. But apart from a suggestion in the section’s heading (‘Establishing contacts for the purpose of committing a serious violent offence endangering the state’), the intent of the person does not have to include committing a terrorist act but rather the step before: the receiving of instructions; thereby criminalising the ‘preparation of preparations’. Section 89b of the StGB considerably expands the German criminal law since purely neutral acts of communication become punishable by up to three years’ imprisonment. There may exist a connection to a terrorist organisation because one of its members has to be the respondent of the relevant communication, but that alone should not be enough. The criminalised behaviour in itself needs to constitute a wrong to which the legislature can legitimately react through criminalisation. Although contact with a terrorist organisation may represent a first step towards radicalisation, there remain countless other steps before the person seeking contact comes close to threatening a legal interest or committing any harmful conduct. The only suggestion of a wrong is in the, subjective, mens rea requirement that there be ‘the intention of receiving instruction for the purpose of the commission of a serious violent offence endangering the state’ meaning that section 89b is really close to being a crime-inthought only. Furthermore, the connection to harmful conduct is not very strong as the purpose of the contact does not have to be the actual commissioning of a terrorist crime but only to attend terrorist training. Despite these criticisms, there are acts that lead up to a terrorist attacks and are temporally situated in the preliminary stages of a terrorist attack that do deserve to be criminalised and punished, such as the provision of actual training in a terrorist training camp. But to criminalise the establishment of prior contact in order to arrange for oneself to be trained is going too far. Section 89a of the StGB, which itself poses some problems, must represent the outer limit of criminal liability, but that limit is breached by section 89b. Since trying to narrow the scope of the section by applying a restrictive interpretation is all but impossible, section 89b should be repealed by the German legislature sooner rather than later.

Preventive efficiency as an unquestioned, but questionable, common function of criminal law in terrorism offences Having considered some examples of precursor crimes of terrorism and their problematic characteristics, now the preventive efficiency of such offences will be examined as this is the central point to justifying such a broadening of the scope of the substantive criminal law. The academic debate surrounding Feindstrafrecht – the de facto existence of a unique set of criminal laws only applied to ‘enemies of the state’ – in Germany and Spanish-speaking countries has shown that the main argument for establishing different rules for (terrorist) enemies relies on the dangerousness of terrorist acts. It is the need for preventing the occurrence of this significant source of dangerousness that motivates much counter-terrorism legislation.45

44 45

See Europol ‘TE-SAT 2011: EU Terrorism Situation and Trend Report’ (European Police Office, the Hague, 2011) 20. See Cancio Meliá, ‘Terrorism and criminal law’ (n 2) 108. 203

Manuel Cancio Meliá and Anneke Petzsche

Due to the potentially apocalyptic dimensions of successful terrorist acts, the context of terrorism captures what we may label as the ‘terminal’ dilemma in relation to public speech: confronted with the untamed violence of modern religiously inspired Islamist terrorism, condensed in the terror attacks of 9/11 (2001) in New York, 3/11 (2004) in Madrid and 7/7 (2005) in London, the question posed by politicians to European societies is whether we are ‘ready to succumb’ to the risk of terrorism or to ‘accept the restriction’ of our liberties. However, on an empirical level of preventive efficiency while facing ‘terminal’ dilemma, the experience of other European countries with regard to the terrorists organisations that emerged during the 1960s and the 1970s (for instance, the ‘Red Army Fraction’ in Germany, ETA in Spain or the ‘Red Brigades’ in Italy), shows, according to some, that the application in particular of provisions regarding precursor offences specified for terrorist crimes (normally with reform processes activated by especially significant events),46 in order to cut possible support by persons belonging to the ‘environment’ of the organisation, did not lead to the prevention of crimes, but, on the contrary, have contributed to attracting new followers of the targeted terrorists organisations, thereby slowing to a certain extent the process of an endogenous dissolution. Hence, does the main element of modern discussion around this subject lack a sufficient factual base? One has to acknowledge that nobody knows with certainty whether and, if so, to what extent criminal offences – however severe the threatened punishment may be – do indeed have a preventive effect.47 The argument that more criminal law equals more safety lacks empirical proof. In fact, regarding terrorists who act out of extreme conviction (as often found in modern, religiously motivated terrorists) and the new forms of organisation (such as small cells, including persons without a previous criminal record, often citizens of the targeted country), the outlook is not promising that criminal law will have a clear preventive effect and that even the severest punishments will act as a deterrence – at least, with regard to terrorists who are even willing to commit suicide attacks. Beyond the obsession with preventive efficiency, the key issue is that the tone dominating public statements in counter-terrorism criminal policy is accepted without question, but does not account for the real basis governing new criminal policy. For instance, how does Feindstrafrecht develop? In a nutshell, it is created under the appearance of adopting tough (and effective) measures as demanded by the preventive discourse. But if one observes the debate on terrorism (on all levels such as mass media, politics and science), one realises that it is not only about the prevention of danger but also about the categorisation of certain groups of perpetrators and their social environment. The concept of Feindstrafrecht (regarding primarily terrorism but also spreading to organised crime and certain sexual crimes) deals not so much

46

47 204

A rule that nowadays still holds to be true as shown by, for example, the UK’s Anti-Terrorism, Crime and Security Act 2001, see further: H Fenwick, ‘The Anti-Terrorism Crime and Security Act 2001: The ‘response’ of Great Britain’s legal order to September 11, 2001: Conflicts with fundamental rights’, in P Eden and T O’Donnell (eds), September 11, 2001: a turning point in international and domestic law? (Transnational Publishers, New York, 2005); A Tomkins, ‘Analysis – legislating against terror: the Anti-Terrorism, Crime and Security Act’ [2002] Public Law 205; D Williams,‘The United Kingdom’s response to international terrorism’ [2003] Indiana International & Comparative Law Review 683, had been a direct reaction to 9/11 while the Terrorism Act 2006 had been – at least in part – a reaction to the London bombing of 7/7, A Jones, R Bowers and H Lodge, Blackstone’s Guide to the Terrorism Act 2006 (Oxford University Press, Oxford, 2006); C Walker, Blackstone´s Guide To The Anti-Terrorism Legislation (2nd edn, Oxford University Press, 2009) para 1.88. But see Chapter 20 (Legrand, Bronitt, and Stewart) in this book.

Precursor crimes of terrorism

with the pure, cold, rational, military-style defence against a particular dangerous enemy, but with the social construct of a category of evil, which conforms with the general tendency of modern society to exclude certain groups. Yet, in a setting where criminals are not treated as such, but as ‘enemies of the state’, any legislative action appears to be more a crusade against evil wrongdoers than a prudent reaction to a threat. To make matters worse, in such a setting, terrorists are treated more like ‘enemies’ in an almost religious rather than in a classic military sense.48 Nevertheless, to acknowledge the difficulties at the level of preventive efficiency does not imply that the withdrawal of the penal system from counter-terrorism should be proposed. It only means that the foundation for provisions related to terrorist crimes cannot be laid exclusively in the ever-perceived ‘necessity’ of actual-prevention. In order to do that the nature of the terrorist crime as a communication strategy must be taken into account: terrorism is a strategy to provoke state power. Thus, communicating the status of terrorists as ‘evil’ itself may work in favour of terrorism.49

Conclusion In recent years, one can observe a blending of categories such as of crime and security, of police, security agencies and judiciary, of prevention and punishment. In criminal law the concept of precursor crimes serves as a prime example for this questionable process. When keeping this broader context in mind, it becomes clear that it is imperative to define limits to a criminalisation of terrorist preparatory acts. Creating genuine precursor crimes is only justified with reference to the inherent dangers of terrorism. Doing otherwise not only acts in favour of terrorism itself, but also poses a threat to democratic society and the rule of law. The examples from German and Spanish law discussed here show the potential for such threats and are representative for a widely spread trend existing in recent criminal law legislation in many countries that is not limited to the field of counter-terrorism measures. Precursor crimes tend to go hand in hand with the penalisation of neutral acts and risk the creation of ‘thought crimes’, thereby raising the question of their legitimacy. While there certainly exist preparatory acts and behaviours that deserve to be punished as precursor crimes, it is important not be blinded by the discourse of preventive efficiency. Rather, the academic world should see itself obliged to point out the shortcomings and problems of such laws where they exist and demand from the national legislator a higher standard of justification for such laws, which goes beyond the reflex of referring to amorphous dangerousness and risk.

48 49

See M Cancio Meliá, ‘Feindstrafrecht’?’ (2005) 117 Zeitschrift für die gesamte Strafrechtswissenschaft 267, 284. See further B de Graaf, Evaluating Counterterrorism Performance: A comparative study (Routledge, Milton Park, 2011). 205

14 The trial of terrorism National security courts and beyond Fionnuala Ní Aoláin and Oren Gross

Introduction The military commissions scheme established by President George W Bush on 13 November 2001, has garnered considerable national and international controversy.1 Its creation focused significant global attention on the use of military courts as a mechanism to process and try individuals suspected of involvement in terrorist acts or offences committed during armed conflict. However, states have long manipulated the legal process and the courts as means to manage and address exceptional threats and challenges.2 Exceptional courts are found in numerous settings, and have long pedigrees of operation in multiple parts of the world as well as in the international sphere.3 In this chapter we introduce and discuss the multiplicity of phenomena that emerge in the context of the use of exceptional courts to try suspected terrorists and which we broadly umbrella under the notion of ‘due process exceptionalism’.4 Violent crises, of which terrorism is an important subset, test the abilities of government to act vigorously and resolutely to overcome a crisis while not intruding unnecessarily on established civil rights and liberties. When faced with acute violent challenges, such as terrorism and armed conflict, democratic states make use of legal and particularly judicial processes and institutions to manage such threats.5 This occurs in part because democratic

1 2

3 4

5

206

Military Order of Nov 13, 2001, 66 Fed. Reg. 57, 833 (Nov 13, 2001). See FF Davis, The History and Development of the Special Criminal Court, 1922-2005 (Four Courts Press, Dublin, 2007); C Walker, Terrorism and the Law (Oxford University Press, Oxford, 2011) chs 6, 11; S Enright, The Trial of Civilians by Military Courts in Ireland 1921 (Irish Academic Press, Salins, 2012); AMS de Frias and others (eds), Counter-Terrorism: International Law and Practice (Oxford University Press, Oxford, 2012) chs 25, 26. F Ní Aoláin and O Gross (eds), Guantanamo and Beyond: Exceptional Courts and Military Commissions in Comparative Perspective (Cambridge University Press, Cambridge, 2013). Some commentators use the term ‘national security exceptionalism’. We view national security exceptionalism as being embraced by the concept of ‘due process exceptionalism’ but argue that the latter is a far wider term and has greater ‘capture’. The counter-terrorism theory behind this idea is notably propounded by F Kitson, Low Intensity Operations (Faber, London, 1971) 69–70.

The trial of terrorism

states, which are the focus of this chapter,6 are constrained in their use of force to respond to such challenges particularly when they manifest as internal armed conflicts or violence above a sporadic threshold.7 Because democracies are particularly reluctant to cede the ground of combatant or armed conflict status to violent challengers8 legal process becomes an important symbolic, expressive, communicative, operational and legitimacy-creating and maintaining basis upon which to contain the effects and status of conflict.9 In this respect, Harold Hongju Koh, the Legal Advisor to the US Department of State, enumerated the ‘commitment to living our values by respecting the rule of law’ as one of the four core commitments in what he called the emerging ‘Obama–Clinton Doctrine.’10 The point was also made by Attorney-General Eric Holder in a speech delivered on 5 March 2012, in which he took pains to argue that, ‘both [federal civilian courts and the revised military commissions] incorporate fundamental due process and other protections that are essential to the effective administration of justice.’11 At the same time, discussing the targeted killing by the US of an American citizen, the Attorney General argued: [T]he Due Process Clause does not impose one-size-fits-all requirements, but instead mandates procedural safeguards that depend on specific circumstances… Where national security operations are at stake, due process takes into account the realities of combat… ‘Due process’ and ‘judicial process’ are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process… The Constitution’s guarantee of due process is ironclad, and it is essential – but, as a recent court decision makes clear, it does not require judicial approval before the President may use

6

7 8 9

10

11

The operation of such courts in non-democratic settings is noteworthy and that exceptional courts can exhibit similar features to and play the same kind of legitimising role for non-democratic regimes as they do for states of a more liberal hue. See L Hilbink, Judges Beyond Politics in Democracy and Dictatorship: Lessons from Chile (Cambridge University Press, Cambridge, 2007); T Ginsburg and T Moustafa (eds), Rule by Law: The Politics of Courts in Authoritarian Regimes (Cambridge University Press, Cambridge, 2008). D Kretzmer, A Ben-Yehuda and M Furth, ‘‘‘Thou Shall Not Kill’:The Use of Lethal Force in NonInternational Armed Conflicts’ (2014) 47 Israel Law Review 191. They are sometimes labelled as ‘militant democracies’. The heated debate about the status of the individuals detained at Guantánamo Bay is a point in hand: B Wittes, Detention and Denial:The Case for Candor After Guantánamo (Brookings Institution Press, Washington DC, 2011). Another notable example pertains to the British government classification of captured IRA members as ‘criminals’ and the insistence of the Republicans that they be accorded a ‘political’ or ‘special category’ status: K McEvoy, Paramilitary Imprisonment in Northern Ireland: Resistance, Management, and Release (Oxford University Press, Oxford, 2001). ‘The Obama Administration and International Law’. Speech before the American Society of International Law (May 25, 2011). Available at: www.state.gov/s/l/releases/remarks/139119.htm accessed 16 February 2015. See also HC 5100/94, Public Committee AgainstTorture in Israel vThe State of Israel, 53(4) PD 817, 845 (Barak, P) (A democracy has ‘the upper hand’ even though it ‘must sometimes fight with one hand behind its back’. This is because ‘[t]he rule of law and the liberty of an individual constitute important components in its understanding of security.At the end of the day, they strengthen its spirit and this strength allows it to overcome its difficulties’.) For a view of the constraints in what has been called ‘Lawfare’ – the use of law as a weapon of war – see JL Goldsmith, The Terror Presidency: Law and Judgment Inside the Bush Administration (WW Norton, New York, 2009) 53–64. E Holder, Northwestern University School of Law. www.justice.gov/iso/opa/ag/speeches/ 2012/ag-speech-1203051.html, 2012 accessed 15 February 2015. 207

Fionnuala Ní Aoláin and Oren Gross

force abroad against a senior operational leader of a foreign terrorist organization with which the United States is at war – even if that individual happens to be a US citizen.12 Due process values and their complex role in enabling state management of crises should be uppermost in the minds of government decision-makers utilising legal process to handle the exigency of terrorism. States have long used the legal process and the courts as means to manage and address exceptional threats and challenges. Existing courts have been modified, new courts have been established and jurisdiction for certain offences moved from civilian criminal courts to military courts and commissions or added to the roster of offences with which the latter could deal. This chapter addresses the role of due process with particular emphasis on the role of trial in the management of politically motivated violence. Section 2 starts by addressing why states utilise and modify legal process as a means of managing politically motivated violence. We follow in section 3 by outlining the characteristics that delineate and define exceptional courts, noting that features described as unique to courts processing terrorist crimes are to be found in a range of distinctive domestic courts that are generally not understood to operate exceptionally. Section 4 describes the costs that may follow from reliance on trial as a means to process politically motivated offenders.We conclude with a series of reflections on the complexity of the trial space, and the risks, benefits, and consequences for states of utilising trial to respond to exigency and the challenge of politically motivated violence.

Explaining the resort to due process as a management tool There are many reasons that states articulate (or not) for using exceptional courts. An overarching theme is framed by perceptions that ‘normal’ criminal justice responses may be inadequate to deal with acute violent crises. The seductive nature of the ‘effective exceptional’ stands in contradistinction to the perceived difficulties and weaknesses of the criminal justice model in dealing with terrorist threats. The arguments in favour of exceptional courts are by now quite familiar: the need for secrecy in respect of ‘sensitive evidence’, the difficulties of criminal prosecutions in open court especially from the perspective of lay participants (jurors and witnesses), the potentially helpful expertise of specially selected judges, and so forth.13 It is generally conceded by proponents and defenders alike that exceptional judicial and military courts make it easier (in the senses of being quicker, less likely to produce security disadvantages, and more likely to result in a result favourable to the state) to try defendants than would be the case in an ordinary civilian court – no matter what state or legal system one operates within. In the context of terrorism, states often claim that the nature of the alleged crimes require particular kinds of security measures that are unavailable to, or unsuitable for, ordinary courts. For example, in the Republic of Ireland part of the stated rationale for the creation and prolonged existence of the Special Criminal Court was the alleged need to protect the safety of judges, witnesses, and officers of the court.14 In Northern Ireland, the abrogation of jury trial for terrorism offences was advanced on the ground that juries could not be ade-

12 13

14 208

Ibid. See D Cole, ‘Military commissions and the paradigm of prevention’ in Ní Aoláin and Gross, Guantanamo and Beyond (n 3) (discussing and rejecting the reasons for the creation of military commissions). See M Robinson, The Special Criminal Court (Dublin University Press, Dublin, 1974).

The trial of terrorism

quately protected from intimidation and bias within the ordinary criminal courts.15 However, in situations where exceptional courts become the subject of protracted litigation and review, a ‘lightening rod’ that concentrates legal challenge to state policies, the perceived advantages of exceptional courts may be overshadowed by legitimacy-undermining challenges that focus on the very exceptionality of the relevant judicial bodies. This has been demonstrated, for example, by the dialogue in the US, among the Supreme Court, Congress, and the President around the processes and practices at Guantánamo Bay.16 There exist unmistakable linkages between the use by states of exceptional courts and their readiness to apply a plethora of pre-trial measures, such as detention, torture, and rendition. Describing what he calls the ‘paradigm of prevention’ that has characterised much of the War on Terror, David Cole argues, for example, that exceptional courts – in the particular context of the US he refers to military commissions – are created in order to avoid ‘paying the costs of its imprudent resort to illegal tactics’.17 Arguing in a similar vein, that the exceptionalism of military commissions cannot be detached from the continuum of modified arrest and detention practices that precedes trial before military officers, Fiona de Londras sheds light on the continuum of exceptionalism pervading the preventive detention paradigm. She charges that the preventive detention of suspected terrorists creates the conditions in which extraordinary courts and prosecutions are almost inevitable and whereby the detention process may itself constitute a type of extraordinary quasi-criminal procedure.18 Finally, an additional possible argument in these situations is that the use of exceptional courts is of mostly communicative and symbolic value as it enables the relevant governments to engage in what Bruce Ackerman has called in a different, yet related, context a reassurance role,19 signalling that strong, tough measures are being pursued and that the government is ‘tough on terror’, while, at the same time, maintaining the veneer of legitimacy by pursuing such measures within the strictures of a legal system. Courts and custodial settings are particularly important sites in which the state and non-state actors engage in what Charles Tilly called the repertoire of contention.20 To avoid over-simplification, it is important to acknowledge that the continued insistence on ordinary courts as the most appropriate means to manage terrorism and politically motivated offenders also functions to advance symbolic and political goals.21 States often view the communicative function of terrorism trials as an opportunity for the executive or national elites to stigmatise or impose sanctions on the identified enemy in highly public ways while establishing a judicially approved narrative on the state’s interaction with particular kinds of

15 16

17 18 19 20 21

See SC Greer and A White, Abolishing the Diplock Courts (Cobden Trust, London, 1986). See e.g. El-Masri v US, 479 F3d 296, 313 (4th Cir 2007); Arar v Ashcroft, 585 F3d (2d Cir 2009); Rasul v Myers, 563 F3d 527, 530 (DC Cir 2009); Ali v Rumsfeld, 649 F3d 762 (DC Cir 2011); Ali v Rumsfeld, 649 F3d 762 (DC Cir 2011); Lebron v Rumsfeld, 670 F3d 540 (4th Cir 2012); Padilla v Yoo, 678 F3d 748 (9th Cir 2012); Janko v Gates, 741 F3d 136, 141 (DC Cir 2014). Cole (n 13) 99. F de Londras, ‘Prevention, detention, and extraordinariness’ in Ní Aoláin and Gross, Guantanamo and Beyond (n 3) 117–9. B Ackerman, ‘The Emergency Constitution’ (2004) 113 Yale Law Journal 1029, 1037. C Tilly, From Mobilization to Revolution (Addison-Wesley, Boston, 1978). See also C Tilly and SG Tarrow, Contentious politics (Paradigm Publishers, Boulder, 2007). Cf the insistence (ultimately thwarted by Congressional hostility) of US Attorney General Eric Holder that the Federal Courts of the US were open for business to process Guantánamo Bay detainees, and that fair trial, security and detainee due process guarantees could best be advanced through Article III courts. 209

Fionnuala Ní Aoláin and Oren Gross

actors and groups.22 This is true whether a trial is conducted in the ‘ordinary’ or ‘exceptional’ courts. In highly contested polities, in contexts where communal contested narratives that implicate nation, territory, and identity drive violence, high-profile trials become an important site of competing histories and memorialisation by both state and non-state actors. As Colm Campbell points out, ‘[i]f trial in the special court amounts to a contest with the state, it is also likely to be a site of interaction and perhaps contest between the open state (typified by the lawbased conventional court), and the secret state (partly a zone of anomie)’.23 That tension between open and closed state in the context of terrorism trials is further explored below.

Characteristics of exceptional courts What makes a court ‘exceptional’? We suggest that a number of factors and attributes must be considered when ascribing an ‘exceptional’ or ‘extraordinary’ character to a court. As a definitional matter, most of the courts, tribunals, and other judicial institutions discussed in this chapter perform a criminal justice function. Their role is symbolically and practically punitive with important linkages to an overarching (and ever-growing) preventive paradigm for the management of terrorism and politically motivated violent offenders. Nonetheless, in some jurisdictions and in certain historical junctures one can only identify an increasing creep to exceptional courts functioning in the civil realm, both nationally and internationally. Such phenomenon has been identified and accounted for in bodies ranging from the international, such as the United Nations (Al Qa’ida Sanctions Committee established by Security Council Resolution 1267) to domestic processes, running the gamut from special procedures (for example, the Justice and Security Act 2013 in the UK) to trial by special tribunals (such as the Special Immigration Appeals Commission in the UK). The range of bodies exercising judicial function is growing and the range of their powers expanding and intensifying. These functional characteristics do not necessarily cut across all such bodies equally, nor are they, as such, presumed to constitute negative descriptors. Rather, the discussion below is aimed at providing some means to categorise exceptional courts and military commissions and draw out their commonalities.

The authorisation basis and political context of a court’s making Acknowledging distinctions between legal systems, which account for differences in the legislative process or patterns of executive action, it is notable that due process exceptionalism is commonly characterised by short-cutting or circumventing the ordinary law-making process in order to advance the security interests of the state. The rush to legislate and take strong action in the aftermath of terrorist atrocity is one striking feature of distinction, and is applicable to the creation time for exceptional courts and military commissions. Violent crises create immense pressures on all three branches of government to ‘do something’ about the threat. They bring about a broadening of the powers of the executive, in general, and law enforcement agencies in particular.24

22 23 24

210

See B de Graaf, Evaluating Counterterrorism Performance: A comparative study (Routledge, Abingdon, 2011). Unpublished paper, on file with authors (2012). CL Rossiter, Constitutional Dictatorship: Crisis Government in the Modern Democracies (Princeton University Press, New Jersey, 1948) 15–28.

The trial of terrorism

The need to respond quickly to future threats, frequently results in legislation that is passed without much debate and, at times, forgoing normal legislative procedures and to the adoption of new or revamped tools in the counter-terrorism arsenal without much reflection, even when such measures deviate from otherwise entrenched notions of civil liberties and individual rights.25 The prevailing belief may be that if new offences are added to the criminal code and the scope of existing offences broadened, and if the arsenal of law enforcement agencies is enhanced by putting at their disposal more sweeping powers, the country will be more secure and better able to face the emergency.26 For its part, the introduction of such enhanced measures may be a precursor of turning to exceptional courts and tribunals as the next vital component in the overall paradigm of prevention. As politicians and legislators engage in ‘symbolic alignments’ (in which what counts is not the nature of the target, but rather being seen as taking a position against the devil and on the side of angels),27 the focus is put on a particular, identifiable, threat (such as terrorism) that is caused by a clearly identifiable group of ‘others’ who can often be described as folk devils.28 In such circumstances, mapping exceptional measures – legislative, judicial, or executive – which would be activated only against that identifiable group, becomes easier to obtain politically since it carries with it the innate promise (often proven illusory in hindsight) that such measures will, in fact, only be used against ‘Them’ and not against ‘Us’.29 Thus, for example, the military commission scheme promulgated by President Bush came in the close aftermath of the events of September 11 when the body politic remained traumatised and fearful of further territorial attacks. Rather than being created by an act of Congress, the creation of the military commissions came by way of executive fiat, circumventing the usual process of inter-party negotiation, notice, and as well as (possibly) tempering input from specialised agencies and interests. Moreover, when issued it was understood that such judicial institutions would only have jurisdiction over foreign nationals rather than over citizens of the US, although historically the US has used military commissions to try US citizens, notably during the Civil War and the Dakota wars.30 The passage of emergency legislation provides parallel examples. The Prevention of Terrorism Acts (PTA) series is illustrative. Originally introduced in the British Parliament in 1974 as a temporary measure, in response to a series of bombings by the IRA in mainland Britain, it was amended in 1975 and 1983, and re-enacted in 1984. In 1989, the PTA became

25

26

27 28

29

30

For a discussion of the curtailment of the right to silence in Northern Ireland (and, eventually, the UK) see, e.g., O Gross and F Ní Aoláin, Law in Times of Crisis (Cambridge University Press, Cambridge, 2006) 183–8. K Roach, ‘The Dangers of a Charter-Proof and Crime-Based Response to Terrorism’ in RJ Daniels, P Macklem and K Roach (eds), The Security of Freedom: Essays on Canada’s Antiterrorism Bill (University of Toronto Press,Toronto, 2001) 131, 138–42. E Goode and N Ben-Yehuda, Moral Panics: The Social Construction of Deviance, (2nd edn, WileyBlackwell, Oxford 2009) 26. S Cohen, Folk Devils and Moral Panics: The Creation of the Mods and Rockers (MacGibbon and Kee, London, 1972) 11–12. See also D Livingstone Smith, Less than Human: Why We Demean, Enslave, and Exterminate Others (St. Martin’s Press, New York, 2011). See, e.g., O Gross, ‘Security vs. Liberty: on Emotions and Cognition’ in D Jenkins, A Jacobsen and A Henriksen (eds) The Long Decade: How 9/11 Has Changed the Law (Oxford University Press, Oxford, 2014) 4, 50–1. CL Chomsky, ‘Military Commissions in Historical Perspective Lessons from the United States – Dakota War Trials’ in Ní Aoláin and Gross Guantanamo and Beyond (n 3) 117–19. 211

Fionnuala Ní Aoláin and Oren Gross

a permanent part of the statute books of the UK.31 Similarly, Congress overwhelmingly supported the passage of the USA PATRIOT Act only six weeks after the terrorist attacks of September 11th.32 Congress acted despite strong claims that it was interfering unnecessarily and excessively with individual rights and liberties. Established legislative procedures – such as the committee process and floor debate –were abandoned in the name of speed. Within weeks of the passage of this piece of legislation, President Bush issued his executive order creating the next link in the chain of prevention: the military commissions.

The limits articulated to such courts in their operation (including temporal, jurisdiction, and review limits) As we have noted elsewhere, exceptional powers are often defined along temporal, spatial, and jurisdictional lines of demarcation. Different legal principles, rules, and norms may be applied, for example, in distinct geographical areas that belong to the same ‘control system’,33 such as Great Britain and Northern Ireland, Israel, and the occupied territories or France and Algeria. One part of such a ‘control system’ – the controlling territory – applies an emergency regime to the dependent territory. At the same time a putative normal legal regime is maintained in the controlling territory itself. The two legal regimes apply contemporaneously. The dependent territory becomes an anomalous zone in which certain legal rules, otherwise regarded as embodying fundamental policies and values of the larger legal system, are locally suspended.34 Exceptional courts and military commissions are often part and parcel of the different institutional and rule distinctions, with obvious examples such as the Diplock Courts in Northern Ireland and the Military Court system operating in the Occupied Territories underscoring a combination of geographical and institutional distinctions. Temporal distinctions also define these courts and commissions, either by virtue of their birth via timebounded emergency legislation or the presumption that emergencies will be short lived, and thus the institutions they spawn will also have limited life span. At the same time, contrary to regular courts, the underlying institutional structure of exceptional courts and military commissions (as distinguished from individual decisions rendered by such tribunals) is, at least in some jurisdictions, subject to various forms of review, both judicial and otherwise.35 Such reviews are frequently part of an accountability package that accompanies the creation of exceptional courts, intended at reassuring both domestic constituencies in democratic nations and, at times, peer states that the exception is under control. In the context of Northern Ireland, the Diplock Courts were subject to a number of high-profile reviews led by senior judicial figures in the UK including the Baker Committee Report.36 A 31

32

33

34 35 36 212

C Walker, The Prevention of Terrorism in British Law (2nd edn, Manchester University Press, Manchester, 1992) 33–9; J Sim and PA Thomas,‘The Prevention of Terrorism Act: Normalising the Politics of Repression’ (1983) 10 Journal of Law and Society 71. Uniting and Strengthening America by Providing Appropriate Tools Required To Intercept and Obstruct Terrorism (USA PATRIOT) Act, Pub L No 107-56, 115 Stat 272 (2001). The House vote was 357–66. 147 Cong Rec H7224 (daily ed October 24, 2001). The Senate vote was 98–1. 147 Cong Rec S11,059 (daily ed October 25, 2001). B Kimmerling, ‘Boundaries and Frontiers of the Israeli Control System: Analytical Conclusions’ in B Kimmerling (ed.), The Israeli State and Society (State University of New York Press, Albany, 1989) 265–7. GL Neuman, ‘Anomalous Zones’ (1996) 48 Stanford Law Review 1197, 1201. Review of the Operation of the Northern Ireland (Emergency Provisions) Act 1978 (Cmnd 9222, London, 1984). Ibid.

The trial of terrorism

similar review process, the Hederman Report, was carried out in the Republic of Ireland in terms of the Special Criminal Court.37 It should be noted that despite modest proposals to ensure greater compliance with international human rights law norms, these notionally ‘independent’ reviews have invariably sustained the case for the retention of exceptional courts.38 In the US, the military commissions announced by President Bush in November 2001 have been the subject of much judicial and legislative dialogue with courts. This most notably the Supreme Court, critically assessing the various features of the Commissions and striking several of them as unconstitutional leading to Congress revisiting the legislative underpinnings of the Commissions, the scope of their authority and jurisdiction and the processes that the Commissions may utilise. Despite these contestations, the core structure, goals, and perimeters of the Commissions remain intact.

The range of offences over which the courts have jurisdiction Military commissions and exceptional courts exercise jurisdiction over a large swathe of offences. In the US, military commissions have been, traditionally, akin to courts-martial as far as matters such as evidence and procedure were concerned. In their classic incarnation military commissions carry out a range of indispensible functions. As Gary Solis notes: ‘Military tribunal’ is the unifying term for all military proceedings of a judicial nature. Courts-martial, employed in virtually all military legal systems, are a form of military tribunal, as are courts of inquiry, which investigate serious military incidents such as the loss of ships at sea. Provost courts, another form of military tribunal, convene in occupied territory to try offences alleged against civilians. Military government courts and Provisional Courts are additional American forms of military tribunal, both now disused.39 The Bush military commissions deviate substantially, as far as subject-matter jurisdiction is concerned, from their historical origins and from contemporary domestic structures. Under jurisdictional rules for contemporary military commissions at Guantánamo, offences must be ‘violations of the law of war [or] other offenses triable by military commission’.40 Historically, subject matter jurisdiction included war crimes, espionage, and sabotage. Current charges, however, have included passing information between terrorist cells, serving as an Al Qa’ida accountant, being a bodyguard to Osama bin Laden, conspiracy, and assisting bin Laden in avoiding capture.41 These are not violations of the law of war as they have traditionally been understood. The expansion of charges to include a range of offences not generally considered breaches of the laws and customs of war has created significant legitimacy challenges for the commissions.

37 38 39 40

41

Carried out by Mr Justice Anthony Hederman, retired Judge of the Supreme Court and former Attorney General. F Ní Aoláin, ‘The Fortification of an Emergency Regime’ (1996) Albany Law Review 1353. Ní Aoláin and Gross, Guantanamo and Beyond (n 3) 74. See, for example, US Department of Defence, Military Commission Order No 1: Procedures for Trials by Military Commissions of Certain Non-United States Citizens in the War Against Terrorism s 3(B) (March 21, 2002). Office of Military Commissions, Charge Sheet, US v Ibrahim Ahmed Mahmoud al Qosi (February 8, 2006). Available at: www.defense.gov/news/d20080305alqosicharges.pdf accessed 15 February 2015. 213

Fionnuala Ní Aoláin and Oren Gross

It is also worth noting that the definition of terrorism itself is ‘slippery’ in scope and definition, an ‘essentially contested concept’ in multiple legal and political settings.42 The term has been frequently under-defined in the authorising statutes or executive orders creating exceptional courts and/or military commissions while simultaneously and paradoxically providing the rationale for the body’s very existence. In parallel, we find a demonstrable elision between the ordinary and the exceptional, and numerous exceptional courts have far too easily slipped into processing ordinary crime in ways that underscore the challenge of separation and the seductive nature of due process exceptionalism in its apparent capacity to speed up or shortcut the requirements of the regularly constituted courts. For example, the practice of ‘scheduling out’ individuals from the Diplock courts in Northern Ireland was the direct result of ordinary (decent) criminals finding themselves by virtue of charging and police process in the non-jury system when their offences ought rightly have been processed in the regular criminal courts.43

Evidentiary and procedural rules used by and in the courts and the extent of their deviation from the rules applied in the ordinary courts’ system As noted above, lesser fair trial guarantees frequently characterise military and special courts due to prolonged periods of pre-charge and pre-trial detention, with inadequate access to counsel, intrusion into attorney–client confidentiality, and strict limitations on the right to appeal and to bail.44 Compounding these challenges to the integrity of fair trial modified rules about evidence, secrecy, legal access, and public access lessen the burdens on the prosecution and make the task for the defence more arduous. In particular, the procedural and evidentiary shifts deployed by exceptional courts and tribunals with a view to facilitating conviction, while much less discernible to the average observer than the gravity of the crimes charged or the status of the judicial officer presiding (military officer or civilian), may be far more distorting of the hitherto accepted ‘rules of the game’ for criminal trials. Exceptional courts may appear to permit the state to undertake certain measures that it may not otherwise be able to pursue, especially in connection with matters such as admissibility of evidence and the preservation of state secrets. Rule changes may, for example, permit reliance on confessions in circumstances where reliance would normally be impermissible; burdens of proof may be reversed and rules pertaining to admissibility of evidence relaxed; abrogated pre-trial procedures may substantially disadvantage the defendant during trial; definitions of the charged offences may be ‘opentextured’ and ‘catch-all’ smoothing easier conviction; and the trial itself conducted in ways that adversely affect accountability and transparency. Military commissions at Guantánamo Bay highlight quite substantial procedural distortions. For example, the commission hearing may be closed for the usual reasons relating to classified matters and for the safety of participant but they also may be closed to the press and public to meet unspecified ‘national security interests’ and ‘for any other reason necessary for the conduct of a full and fair trial’.45 In courts-martial, the defence may view any prosecution document

42 43 44

45

214

WB Gallie, ‘Essentially Contested Concepts’ (1956) 56 Proceedings of the Aristotelian Society 167. D Walsh, The Use and Abuse of Emergency Legislation in Northern Ireland (The Cobden Trust, London, 1983). Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, UN Doc A/63/223, paras 27, 45(b) (2008). See also UN General Assembly Res 66/171 (March 30, 2012), UN Doc A/Res/66/171. Military Commission Order No 1, §6(D)(5); J Elsea, The Department of Defense Rules for Military Commissions:Analysis of Procedural Rules (Congressional Research Service, Washington DC, 2003) 7.

The trial of terrorism

related to the charges. For Guantánamo military commissions, that right is substantially circumscribed.46 Defence lawyers of Guantánamo detainees have also charged that constraints on their access to clients, including assertions of being subject to listening devices, hampered their capacity to win the confidence of those they represent and provide the most robust defence possible. Other procedures that differ significantly from standard courts-martial include review and appeal procedures and limitations on the right to appeal one’s conviction,47 the right to face one’s accuser,48 and protections against unlawful command influence.

The judicial appointment mechanism to such courts Judicial neutrality and the perception of judicial independence from executive branch interest remains a persistent problem for military commissions. One finds broad criticism of rule of law adequacy in such settings, intermixed with claims of court collusion with the state in oppressive political action by means of law. Context is critical when assessing the perceived legitimacy and fairness of military commissions and exceptional courts, so in divided ethno-national polities or majority/minority contexts (South Africa under apartheid), and situations of occupation (Afghanistan, Iraq, Israel–Palestine), courts are viewed in highly polarised ways by the body politic. The politics of appointment often involved ‘safe’ judicial appointment, and highly eliteactor-dominated processes of appointment and tenure. In many jurisdictions, judges to military commissions and/or special terrorism courts will have served previously in other branches of government prior to appointment and may not be in practice or identity distanced from the recent politics of the executive. In the Irish Special Criminal Court, for a considerable time one of the three judges was a serving military officer, in Turkey the composition of national security courts trying civilians, which included military officers on the bench, was found to violate Article 6 of the ECHR.49 Minority, diverse, or oppositional appointments to these kinds of Courts are rare. In addition to judicial appointments, court and administrative personnel associated with military commissions and special courts are increasingly coming under greater scrutiny.50 Policy makers and scholars have a greater appreciation for the totality of the trial process, and the extent to which a substantial guarantee of judicial independence and the transparent functioning of courts/commissions in an operative sense, requires institutional neutrality from political process and the executive across the institution as a whole. While judges are an integral part of such ‘arms-length’ operation, all the layers of court personnel from clerks, administrative staff, and security services constitute part of the apparatus that lends or detracts from the perceived and actual distance of the court from the political imperatives of the day.

46 47

48

49 50

Military Commission Order No 1, s 6(D)(5). Despite revisions by the Detainee Treatment Act 2005 that provides for some independent review of military commissions in the US Court of Appeals for the District of Columbia Circuit. This review is extremely limited. JN Boeving, ‘The Right to Be Present Before Military Commissions and Federal Courts: Protecting National Security in an Age of Classified Information’ (2007) Harvard Journal of Law and Policy 463. Incal v Turkey App No 22678/93, 9 June 1998 (2000) 29 EHRR 449. J Jackson, ‘Years On in Northern Ireland: the Diplock Legacy’ (2009) 60 Northern Ireland Legal Quarterly 213. 215

Fionnuala Ní Aoláin and Oren Gross

The perceived neutrality, impartiality and independence of such courts from the other branches of government, with special focus on the executive branch Military commissions and exceptional courts designed to process terrorist offences struggle to demonstrate their neutrality and independence from the various branches of government. The circumstances of creation, including particularly whether such courts or commissions operate on the exclusive authority of a President or Executive, can doom the quest for symbolic or actual autonomy to failure from the outset. Such bodies when operationalised on executive authority may undermine the separation of powers and the checks and balances that underpin agreed notions of the rule of law in a domestic legal setting. Apart from process of appointment (and dismissal) of judges there can be multiple layers of perceived and actual conflict of interest, deference to the views of the executive and outright pressure for the courts/commissions to produce punitive outcomes. In the Guantánamo context there is not unreasonable disquiet that the current Convening Authority for commission cases is a civilian political appointee – whose primary role is based in Washington DC and whose day-to-day position is that of General Counsel of the Department of the Navy in the US. The extent to which trial is viewed as independent of political interference remains intrinsically connected to the conditions and context of detention and a thicker political landscape than the four walls of the courtroom. Thus, harsh detention conditions at Guantánamo Bay including forced feeding, lack of contact with family members, and no prospect of actual release for detainees even when Federal Courts have found no basis to hold due to the US Congressional bar on ‘deal-making’ with third countries means that the trials are only part of a broader tapestry of political exchange and profit in which the quality of the trial itself is undermined simultaneously from the collision of internal and external factors.

Sentencing powers Exceptional courts and military commissions frequently hold the capacity to hand out extended or enhanced sentences for the crimes under their jurisdiction. The most resonant contemporary example is the capacity of military commissions at Guantánamo Bay to deliver the death penalty for persons found guilty of crimes under their jurisdiction. As Jonathan Hafetz has argued, there is a particular revulsion to the spectacle that persons tortured under the jurisdiction and power of the US are subsequently executed by the exceptional courts that try them.51 No comparative comprehensive empirical data exist on the sentencing patterns in military commissions; nonetheless, anecdotal and case-by-case analysis suggests that such courts have the power to hand out more extensive punishments than the ordinary criminal courts and may be more likely to do so than regular courts. Case-by-case analysis also suggests a phenomenon of case hardening in such judicial settings.52 Empirically it appears that the lack of a jury may exacerbate rather than minimise this tendency. Judges in anti-terrorist, exceptional and military courts are often subject to special appointment processes, and are thereby insulated from the kind of scrutiny and transparency that accompanies judicial selection in ordinary courts. They regularly experience direct security threats by virtue of their positions, thus heightening isolation, as well as creating deep allegiances to the security forces that protect them and their families from harm; manipu-

51 52

216

‘Don’t execute those we tortured’ New York Times (New York, 25 September 2014) A31. J Jackson and S Doran, Judge Without Jury: Diplock Trials in the Adversarial System (Clarendon Press, Oxford, 1995).

The trial of terrorism

lations to the rules of evidence distort the regular trial process in ways that unwittingly lead to less-robust procedures, creating for some observers an inevitability to conviction over pardon. There is an awkward reality that the heightened sensitivity to the framing of atrocity crimes like terrorism, emphasising the vulnerability of targets and the harms that they experience as well as the monstrosity of the perpetrators that pre-determines the course of the sentencing phase in ways that make heightened and harsh symbolic sentencing more likely. Living in societies that remain fearful of terrorist attacks, judges may be afraid of being seen as ‘soft on terrorism’, or out of step with the mainstream views of their society on politically motivated violence. One might assume that a tendency to overreaction by the lower courts would be mitigated by the capacity to appeal convictions. However, appeal capacity is often structurally limited by the legislation or executive orders that spawn exceptional courts.53 Moreover, even in those cases where lower courts have been prepared to account for the complexity and procedural flaws of the judicial process, we see examples of overruling when sentences are perceived as overly lenient.54

Normal versus exceptional A variety of courts, such as juvenile courts, immigration and asylum tribunals, and social security tribunals, satisfy some of these criteria even within the ‘ordinary’ jurisdiction of the state. Evidently, some courts meeting the criteria of exceptionalism encounter fewer criticisms than others. Yet, exceptional courts are an oxymoron. The closer in attributes and character they are to the ordinary judicial institutions, the more the underlying justification and need for using exceptional structures are weakened. The farther removed the exceptional is from the normal, the less legitimacy purchase is the use of exceptional courts going to have. However, legitimacy purchase is also highly dependent on what the public knows (or perceives) about the fairness of such courts and their proceedings. Often, such knowledge is severely restricted and the information placed willingly in the public domain by states is constrained in multiple ways. Indeed, the lines of demarcation between the ordinary and the exceptional are often blurred. Writing in the context of Northern Ireland, John Jackson identifies a ‘vicious and virtuous cycle in prosecuting terrorism’.55 On the one hand, the transgressions that characterised the early stages of the conflict in Northern Ireland have, with time, given way to greater emphasis on the rule of law and a reversion to normal modalities, as represented by the latest version of the special ‘Diplock’ courts in the Justice and Security (Northern Ireland) Act 2007. Kent Roach calls this trend ‘the law working itself pure’.56 At the same time, normality has come at 53

54

55 56

Appeal restrictions may also be tied to other immunities that come with the creation of exceptional courts or military commissions. See e.g. in the US Detainee Treatment Act, PL 109–148, 19 Stat 2680 s 1004(a) (2005) (giving immunity to US personnel who used authorised ‘operational practices’ in the detention and interrogation of detainees alleged to be engaged in terrorist activities); Military Commissions Act, PL 109–366, 20 Stat 2600 s 8(b) (2006). See decision by Federal Judge (Miami) Marcia G Cooke who originally sentenced Mr Padilla to 21 years in prison funding that the original living conditions in which Mr Padilla was held ‘warranted consideration in his sentencing’. The US Court of Appeals for the 11th Circuit found the original sentence too lenience and returned the case for resentencing. J Jackson, ‘The Vicious and Virtuous Cycles in Prosecuting Terrorism: the Diplock Court Experience’ in Ní Aoláin and Gross, Guantanamo and Beyond (n 3) 225. K Roach, ‘The Law Working Itself Pure? The Canadian Experience with Exceptional Courts and Guantanamo’ in Ní Aoláin and Gross, Guantanamo and Beyond (n 3) 201. 217

Fionnuala Ní Aoláin and Oren Gross

a price as exceptional anti-terrorism measures, including modifications to the right to silence57 and to jury trial,58 have crept into the ordinary criminal justice system, leading to diminution in established rights that have long been a part of the criminal justice landscape. Two competing narratives may be offered in this context: First, the breaking down of the ‘assumption of separation’ between the exceptional and the normal has resulted in the former spilling over and tainting the latter, using it, at minimum, to gain legitimacy and justification and in the process potentially subverting some of the rules and procedures that exist in the ordinary, normal sphere. The exceptional is becoming the new normal. An alternative reading regards the interaction between the two spheres as flowing in a reverse direction, in other words, towards the exceptional shedding off its extraordinary traits and assuming the rules and procedures of the normal legal system.59

The costs of the exception While the attractions of a resort to due process exceptionalism have been succinctly outlined above, there are distinct costs to such a move. Some of these follow from the scrutiny of international law and international judicial process,60 as the actions of democratic states will be measured by the benchmark of international legal norms and may be found wanting.61 For example, in the context of articulating the contours of a right to fair trial, the ECtHR (and, previously, the Commission) has examined the use of Special Courts,62 looking at whether trials involving persons charged with terrorist offences should be public,63 and examining the right to silence and the privilege against self-incrimination for all defendants.64 Here, while there is strong evidence of accommodating the uniqueness of the terrorist challenge as articulated by states, the Court has been robust in its conclusions on the incompatibility of such measures as military trials for terrorist defendants.65 With respect to the right to silence the

57 58 59

60

61

62 63

64

65

218

See in England and Wales the Criminal Justice and Public Order Act 1994, ss 34–9. See in England and Wales the Criminal Justice Act 2003, Pt VII. Cf C Walker ‘Terrorism prosecution in the United Kingdom: lessons in the manipulation of criminalization and due process’ in Ní Aoláin and Gross, Guantanamo and Beyond (n 3) arguing that in common law jurisdictions the ‘normal’ is quite plastic and one can never be quite sure what the ‘normal’ constitutes, with obvious implications for the definition of the exceptional. See International Commission of Jurists, Military Jurisdiction and International Law. Available at: http://icj.wpengine.netdna-cdn.com/wp-content/uploads/2004/01/Military-jurisdictionpublication-2004.pdf, 2004 accessed 15 February 2015; RJ Araujo, ‘A judicial response to terrorism: the status of military commissions under domestic and international law’ (2003) 11 Tulane Journal of International & Comparative Law 117. See S Greer, ‘Exceptional Courts and the European Convention on Human Rights’ and D Weissbrodt and J Hansen,‘The right to a fair trial in an extraordinary court’ in Ní Aoláin and Gross Guantanamo and Beyond (n 3). Incal (n 49); Martin v United Kingdom App No 40426/98, 24 October 2006 (2007) 44 EHRR 31; Ergin v Turkey (No 6) App No 47533/99, 4 May 2006 (2008) 47 EHRR 36. Tinnelly and McElduff v UK App Nos 20390/92; 21322/92, 1998-IV, 10 July 1998 (1999) 27 EHRR 249 Devlin v UK App No 29545/95, 30 October 2001 (2002) 34 EHRR 43; Devenney v UK App No 24265/94, 19 March 2002 (2002) 25 EHRR 24. (John) Murray v UK App No 18731/91, Reports 1996-I, 1 January 1994 (1994) 18 EHRR CD1; Averill v UK App No 36408/97, 6 June 2000 (2001) 31 EHRR 36; Magee v UK App No 28135/95, 6 June 2000 (2001) 31 EHRR 35. See also the decision of the UN Human Rights Committee Kavanagh v Ireland, Communication No 1114/2002/Rev 1, UN Doc CCPR/C/76/D/1114/2002/Rev 1.

The trial of terrorism

ECHR has highlighted the right of access to legal advice and counsel as a key element of a fair procedure where a defendant may incriminate herself by silence.66 The Guantánamo military commissions have elicited almost universal condemnation. Both the Bush and Obama administrations have been roundly criticised for, inter alia, authorising and enabling conduct that constitutes torture under international law; failing to criminally investigate acts of official torture; and failure to promptly and impartially prosecute senior military and civilian officials responsible for authorising, acquiescing, or consenting to acts to torture committed by their subordinates.67 Criticism has not only been international but has included the highest judicial officers in US allied states.68 Moreover recent decisions by the ECtHR address torture and the complicity of European states in US CIA led practices of rendering individuals to ‘black sites’ for sustained interrogation interlaced with alleged torture and ill-treatment. The cases shed some light on the European judicial view regarding the compatibility of military commissions with international human rights law norms. In Al Nashiri v Poland 69 and Husayn (Abu Zubaydah) v Poland,70 the Court found breaches of Convention articles 3 (torture), 5 and 6 (liberty, security and fair trial), 8 (family and private life), and article 13 (right to a remedy). On this basis, Jens David Olen speculates that: The last holding on article 6 required the Court to conclude that the petitioner’s trial before a US military commission would be unfair — which is a substantial legal determination. Unfortunately, the Court’s analysis on this point is incredibly thin, and relies mostly on the US Supreme Court’s determination in Hamdan that the creation of the tribunals was procedurally defective and violated Common Article 3 of the Geneva Convention, without much independent analysis.71 While international legal scrutiny is one obvious route to challenge the legality and methods of such courts, many jurisdictions resorting to modified courts doggedly encounter domestic challenge. For example, in the US, detainees held in Guantánamo Bay have made various attempts to challenge the validity and conditions of their detention as well as numerous other challenges to the operations of military commissions and the detention regime they experience. Detainees have broadly offered three basic types of challenges to the Guantánamo

66 67

68 69 70 71

Magee (n 64); Heaney and McGuinness v Ireland App No 34720/97, 21 December 2000 (2001) 33 EHRR 12; Quinn v Ireland, App No 36887/97, 21 September 1999 (2000) 29 EHRR CD234. Open Society Justice Initiative, Globalizing Torture: CIA Secret Detention and Extraordinary Rendition (Open Society Foundations, New York, 2013). Available at: www.opensocietyfoundations. org/sites/default/files/globalizing-torture-20120205.pdf accessed 15 February 2015; International Committee for the Red Cross, ‘Report on the Treatment of Fourteen ‘High-Value Detainees’ in CIA Custody’ (ICRC, Washington, 2007). Available at: http://assets.nybooks.com/ media/doc/2010/04/22/icrc-report.pdf accessed 15 February 2015; J Marguelies, Guantanamo and the Abuse of Presidential Power (Simon & Schuster, New York, 2007); UN Special Rapporteurs, ‘Situation of detainees at Guantánamo Bay’ (E/CN.4/2006/120, New York, 27 February 2006); Commission on Human Rights, ‘Joint Report on the Situation of Detainees at Guantanamo’ E/CN.4/2006/120 (27 Feb 2006). J Steyn, ‘Guantanamo Bay: The Legal Black Hole’ (2004) 53 International and Comparative Law Quarterly 1. App No 28761/11, 24 July 2014. For the case facts, see Chapter 17 (Guild) in this book. App No 7511/13, 24 July 2014. For the case facts, see Chapter 17 (Guild) in this book. Available at: http://opiniojuris.org/2014/07/24/echr-rules-poland-cia-black-sites-case/ accessed 16 February 2015. 219

Fionnuala Ní Aoláin and Oren Gross

system. First, detainees who have been charged before a military commission have challenged the legitimacy of the commission trial system itself.72 Second, nearly every detainee has made a habeas corpus petition in the federal court system through a next of kin.73 Finally, at least four detainees were American citizens: because these detainees have access to the federal court system, they have made different types of challenges. While the overall success of legal challenges to US military commissions has been very limited,74 even patchy success worked to hamper the operating political legal space of the Bush administration, forced some limited legislative and administrative reforms and kept the trials themselves to the forefront of advocacy efforts in the US. In this, the contestation over the trials functioned as a placeholder for sustained challenge to the legitimacy of the so-called ‘war on terror’ itself. Guantánamo Bay implicates two presidential administrations – one through design and implementation and the other, primarily but not exclusively,75 through cover-up and obstruction of justice. One conclusion that might be drawn from this is that the sustained support across party political affiliation and administrations to addressing terrorism, has greater and more fundamental consistency that any deep-seated discomfort with due process exceptionalism and all it entails. Aside from the constraint exercised by international law, there may be unforeseen problems resulting from special courts and their interaction with law’s relative autonomy in a democratic setting. The rationale for special courts is partly to enable convictions in circumstances in which convictions might not have been possible in the ordinary courts. This facet alone in itself might be regarded as repugnant to the rule of law, and creating de facto breach of constitutional or international human rights law protections. Special courts therefore tend to be caught between two imperatives. First, since the rationale for their creation is partly to maximise convictions, there are likely to be expectations in some quarters that the expected convictions will ensue, thus narrowing the scope for law’s relative autonomy. Second, because such courts may be seen to function as courts this dimension adds to their legitimacy thereby meeting a key requirement of the democratic state’s own self-definition in the battle of narrative and legitimacy that invariably accompanies exceptional trial. However, an unpredictable dimension of increased legitimacy is the judicial independence and identity that follows whereby domestic judges act to preserve some autonomy, and thus push against easier convictions.76

72 73

74 75

76

220

See above, n 18. The first three habeas corpus petitions were filed in early 2002 on behalf of two British citizens, two Australians, and twelve Kuwaitis. These three were consolidated and dismissed with prejudice in July 2002 by the DC District Court for lack of jurisdiction over Guantánamo Bay. The Court of Appeals affirmed and the Supreme Court granted certiorari. In June 2004, the Supreme Court ruled that because Guantánamo Bay was effectively under US control, US courts had jurisdiction to decide whether foreign nationals held at Guantánamo should be entitled to habeas relief. Rasul v Bush, 124 S Ct 2686. See for example, Ali v Rumsfeld, 649 F 3d 762, 774 (DC Cir 2011). In the context enforcement and legal justification by the Obama administration for force-feeding at Guantánamo one sees an extension and not mere continuance of the prior regime. See S Ashtari, ‘Guantánamo Bay Prisoner Files Historic Lawsuit Against Obama Over Force-Feeding’, The Huffington Post (11 March 2014). Available at: www.huffingtonpost.com/2014/03/11/ Guantánamo- bay-force-feed-lawsuit_n_4942839.html accessed 27 October 27 2014. A classic example of this was the ‘Supergrass’ trials in Northern Ireland that collapsed for a variety of reasons, but not least because the judges themselves ultimately drew a line at complicity in rule of law abrogation. See SC Greer, Supergrasses (Clarendon Press, Oxford, 1995).

The trial of terrorism

Conclusion: Compulsion to legality or lesions on legality? There is always paradox and tension in the resort to exceptional measures by democratic states. Diversions from the rule of law are never an entirely straightforward exercise. Specifically, in the operation of terrorism trials, one can see zones of anomie and of juridification co-existing ambiguously in the state of exception. In order to facilitate the range of modifications to enable ‘simpler’, streamlined trials, the state invariably compromises its own rule of law ordering and runs the constant risk of being caught by the inconsistencies that follow. Recognising that there can be variance in state responses to terrorism and that modifications will occur on a spectrum, the state may be forgiven for minor incursions onto liberty and due process. However, if the democratic state profoundly strays from the core of rights protections as part and parcel of the modified trial process (such as by engaging in rendition, torture, forced feeding, and even extrajudicial execution), the costs to the legitimacy, status, and political power of the state may be considerable. Exposure of the state’s transgressions is often, paradoxically, enabled by the very trials that modified due process enabled. As questions over evidence, confessions, detainee treatment, and access to legal counsel surface before and during trial the state may find that the exceptional trial creates unexpected vulnerability as the ‘secret’ state of surveillance, collusion, illegality, and profound rule of law transgression is revealed in ways that cannot be contained.77 A dialectic of sorts can be seen at work in the exceptional court. One result is that in an exceptional court there are always two trials in progress: the first of the defendant; the second of the court, (and ultimately the state itself ).

77

As demonstrated in Al Nashiri v Poland App No 28761/11, 24 July 2014, and Husayn (Abu Zubaydah) v Poland App No 7511/13, 24 July 2014. Note also the case of El-Masri v FYR Macedonia, App No 39630/09, 13 December 2012 (2013) 57 EHRR 25. 221

15 Executive measures against the liberties of terrorism suspects Mordechai Kremnitzer and Lina Saba-Habesch

Introduction Even the best intelligence services are challenged when devising ways of anticipating and preventing acts of terror. Terrorists aim to cause instability in the political system. They aim to change policies through the intimidation of the entire population or sub-sections thereof. The costs of terrorism extend beyond human lives. One of the main terrorist goals, which is often achieved, is to cause horror and helplessness among citizens. The reaction of threatened individuals and institutions to terrorism can cause grave social costs. When dealing with extended periods of terrorism, this dread can even affect daily life and cause psychological damage, economic costs, and even a threat that causes the government to lose its freedom of action and its ability to provide existential security to the public. This has given rise to a debate over the suitability of the traditional criminal justice system to deal effectively with terrorism.1 Terrorism challenges the system in a different way to regular violent crime. It is clear that criminal deterrence is not effective vis-à-vis those who decide to commit suicide. Failing to prevent terrorist acts can increase their confidence and their ‘appetite’ for additional attacks. It may also create an incentive to initiate such attacks. Therefore, states that confront terrorism believe that the results of terrorist attacks, especially serious ones, are so severe that they must act diligently to prevent them in advance and that later punishment is not enough. Moreover, when dealing with suicide bombers there is usually no one to punish after the attack. The result has been a shift in the criminal law policy paradigm to a greater focus on preventive measures.2 After 9/11 and since the emergence of the global ‘war on terror’, countries increased their use of pre-emptive measures to fight terrorism. These include administrative detention and other restrictions on the movement of suspects, special interrogation measures, and a wider

1

2

222

D Pearlstein,‘We’re all experts now: a security case against security detention’ (2007–2009) 40 Case Western Reserve Journal of International Law 577, 586; R Chesney and J Goldsmith, ‘Terrorism and the convergence of criminal military detention models’ (2008) 60 Stanford Law Review 1079, 1096. See D Bonner, Executive Measures, Terrorism and National Security (Ashgate, Aldershot, 2007); C Walker, Terrorism and the Law (Oxford University Press, Oxford, 2011) ch 7; A Ashworth and L Zedner, Preventive Justice (Oxford University Press, Oxford, 2014) ch 8.

Executive measures against the liberties of terrorism suspects

scope of incriminating acts of preparation.3 All share the same goal – facilitating early intervention for purposes of terrorism prevention. The flip side of the preventive measures is that they compromise the rights of terrorist suspects. Early preventive measures are more likely to violate rights than punitive measures, since the factual basis for violation in prevention is speculative. In addition, the guarantees to ensure a fair procedure for the detainee are reduced. In our chapter, we shall focus on the measure of administrative detentions, as applied in Israel. It is arguable that the criminal justice system is morally and logically the appropriate institution in a liberal state to assume prime responsibility for dealing with terrorism. Fighting terrorism using the criminal system enables, on one hand, an early intervention of the state using the powerful tools of criminal law, which include a multitude of coercive measures (such as pre-trial detentions), and, on the other hand, ensures that human rights are safeguarded. However, it has been suggested that the traditional criminal justice system may be ill-suited to the need of obtaining information from terror suspects or their trial and punishment.4 Experience shows that it is notoriously difficult to identify and capture terrorists and their ‘godfathers’. Another major difficulty is finding witnesses and all the more so, obtaining their testimony because of, inter alia, intimidation by terrorist groups. The result is that most, if not all, of the materials that lead to their arrest are in the form of classified intelligence that cannot be provided as evidence to the court against the detainee without compromising security. Another limitation that the criminal law faces when dealing with terror suspects is that it applies only if a crime has already been committed or at least there was an attempt to commit it – criminal law is reactive and not directly proactive. Thus, traditional criminal law encounters systemic difficulties when it is given the role of risk prevention. Those who support creating a separate preventive system to fight terrorism also emphasise that relying solely on the traditional criminal law to fight terrorism may result in undermining basic liberty interests. Their argument is that in time of emergency, and in order to deal effectively with terror cases, states will have to amend and stretch the limits of their criminal laws. By doing so, there is a risk that the amended law will, gradually, be employed in ordinary offences as well. In other words, doctrines and interpretations developed for terrorism cases may wander outside that context and affect other areas of the criminal law.5 Such a scenario may threaten the coherence of the criminal system and its core principles. As a result of the above, some states, including Israel, have decided to fight future terrorism by using a parallel preventive path. Israel is not alone. Other countries such as India, Nigeria, Sri Lanka, Australia,6 US, and the Russian Federation are also employing some sort of security detention regime.7

3

4 5

6 7

Y Shany, ‘The International Struggle Against Terrorism – the Law Enforcement Paradigm and the Armed Conflict Paradigm’. Available at: http://en.idi.org.il/analysis/articles/the-internationalstruggle-against-terrorism-%E2%80%93-the-law-enforcement-paradigm-and-the-armed-conflictparadigm-(full-version) 2008 accessed 13 May 2014. See further Chapter 13 (Meliá and Petzche) in this book. Chesney and Goldsmith (n 1), 1096–8. J Pejic, ‘Procedural principles and safeguards for internment/administrative detention in armed conflict and other situations of violence’ (2005) 87(858) International Review of the Red Cross 375, 383–4. See SB Elias,‘Rethinking “preventive detention” from a comparative perspective: three frameworks for detaining terrorist suspects’ (2009) 41 Columbia Law Review 99, 186–90. Ibid 183–4. 223

Mordechai Kremnitzer and Lina Saba-Habesch

Administrative detention Administrative detention is imposed by the executive to prevent a danger to state security or public safety typically during states of emergency. In other words, the government detains a person without charge or trial based on the assumption that otherwise – being free – such a person would unduly endanger security or safety. The detention is primarily concerned with future behaviour and not past actions8and supposedly serves an exclusively preventive purpose. The legality of preventive detention is examined only after the detention takes place; the judicial review is often performed, at least partially, ex parte and the court’s decision is usually based on inadmissible evidence, which is not fully exposed to the detainees and their lawyers. In Israel, administrative detentions may be prolonged, even indefinite, so long as the detainee’s perceived dangerousness continues.9 The required standard of proof is ‘clear and convincing evidence’, a lower level than that required in criminal ones, though the burden of proof on the state increases if the detention persists.10

The problematic nature of administrative detention The administrative detention system infringes basic human rights to personal liberty, fair trial, presumption of innocence, due process, and the right to legal advice. It also deviates from the principle of separation of powers, and as such, it is alien to a democratic state.11 Because of the inability of the detainee to mount an effective defence, the risk of error in administrative detentions is much higher than in regular criminal proceedings. In order to detain someone on the ground of their dangerousness, it must be proved that he or she is likely to commit a crime in the future. This requires an inference from past conduct to future behaviour, but such an inference is highly speculative,12 involving the presumption that people do not change or renounce their future bad intentions13 and cannot be presumed innocent.14 Difficulty in convicting a person in ordinary criminal proceedings should not be a reason for administrative detention. However, in almost all instances, the basis for detention is prognosis based upon past conduct of the detainee. Usually, the line of criminality has already been crossed because the scope of criminality is also broadly extended to the very early stages of activities of terrorist organisations. If there were admissible and non-confidential evidence against such a detainee, he or she would be almost certainly be criminally charged.15 As a result, administrative detentions are in fact used to bypass the criminal law and guarantees,16 and they

8 9 10 11 12

13 14 15 16 224

Pejic (n 5), 375–6; HCJ 9441/07 Agbar v IDF Commander in Judea & Samaria [2007] para 5 (unpublished). Pejic (n 5). Adm. Det. Pet. 8788/03 Federman v Minister of Defense PD 58(1) 176; Adm. Det. Pet. 8607/04 Tali Fahima v The State of Israel [2004] (unpublished). RH Fallon and DJ Meltzer, ‘Habeas corpus jurisdiction, substantive rights, and the war on terror’ (2007) 120 Harvard Law Review 2029. R Kitai-Sangero, ‘The Limits of Preventive Detention’ (2009) 40 McGeorge Law Review 903, 908; M Kremnitzer, ‘Administrative Detention-An Opportunity for Reevaluation’ in E Gil (supervised by M Kremnitzer), A Reexamination of Administrative Detention in a Jewish and Democratic State (IDI Policy Paper 7E, Jerusalem, 2011) 254, 255. Kitai-Sangero (n 12), 910. M Kremnitzer (n 12), 263. M Kremnitzer (n 12), 255. M Kremnitzer (n 12), 257.

Executive measures against the liberties of terrorism suspects

reduce the incentives for the authorities to make efforts to obtain admissible evidence for a criminal trial.17 Justice Rubinstein stated in this respect: ‘Presumably, in various cases further investigation effort would have yielded enough evidence for prosecution, while not revealing what should not be revealed.’18 In Israel there is no legal duty for the authorities to investigate the detainees in administrative detention immediately after their detention. In practice, detainees are sometimes kept for months without an investigation. Thus, the real rationale for administrative detentions is the difficulty in proving criminal charges concerning past conduct. In other words, administrative detention serves as a substitute for punishment.19 This view was endorsed by the former Chief Justice Beinisch: ‘as a rule, recourse to the extreme measure of administrative detention is justified in circumstances where other measures are inapplicable, due to the absence of sufficient admissible evidence or the impossibility of revealing privileged sources’.20 The few cases that one can conceive of beyond criminality, like the mere declaration of an intention to commit a future crime, can be dealt with by less harmful measures, such as surveillance and tracking. Only when an emergency situation prevents such surveillance may administrative detention be justified. Moreover, the number of administrative detentions (at least in Israel, as opposed to the occupied territories)21 raises doubts as to its necessity and about the impossibility of confronting terrorism with regular law enforcement. After a brief review of the administrative detention system in Israel, this chapter will focus on the effects of the widespread use of secret evidence on the right to due process and on the effectiveness of judicial review. We shall then examine two main models developed to address this issue: the ‘judicial management’ model and the ‘special advocate’ model.

The three frameworks of administrative detentions in Israel Since its establishment in 1948, the State of Israel has declared a state of emergency, which allows it to use administrative detention.22 Over the years, the legal framework that allows the use of administrative detention has expanded, and currently Israel is applying this measure using three different tracks. The first is the ‘Israeli’ track, which allows detention in Israeli territory. The second track applies to the ‘occupied territories’, which, through military orders, allows suspects to be detained in the occupied territories since 1967. A third track (the ‘unlawful combatant’ law) enables the military authorities to detain ‘unlawful combatants’ who are not entitled to a prisoner of war status according to the Third Geneva Convention. In practice, it is used to detain individuals from outside the occupied territories. After the disengagement from Gaza in 2005, this law is applied mainly against Gaza residents. The three tracks differ in their content and in their implementation. The use of administrative detention within the Israeli track is negligible compared with the number of administrative detentions in the 17 18 19 20 21

22

Kremnitzer (n 12), 261. Agbar v IDF Commander in Judea & Samaria [2007], [5] (Justice Robinshtein). Gil (n 12), 83; HCJ 5784/03 Salama v IDF Commander in Judea and Samaria 57(6) PD 721 [2003], [7]. CrimA 6659/06 A v State of Israel, 47 ILM 768 [2008] [33]. On 30 August 2014, 473 Palestinian administrative detainees were held in facilities run by the Israel Prison Service: available at: www.btselem.org/administrative_detention/statistics accessed 1 November 2014. Israel declared its State of Emergency under art 4 of the International Covenant on Civil and Political Rights 1966 on 3 October 1991: UN Doc ST/LEG/SER.E/10 (1992) 149. 225

Mordechai Kremnitzer and Lina Saba-Habesch

occupied territories that at its peak (in 1989) reached 1,794 detainees.23 As for the content, the three tracks differ with regard to frequency, duration, deciding authority, and judicial review.

The Israeli track Upon its establishment in 1948, Israel adopted the previous British mandate regulations (the Defense (Emergency) Regulations 1945), regulation 111 of which allowed administrative detentions. These regulations remained in force until the Knesset replaced them in 1979 with an Israeli statute – the Emergency Powers (Detention) Law 1979 (‘the Detention Act’).24 While upholding the legality of administrative detentions, the Detention Act added meaningful procedural safeguards, the most important of which is mandatory judicial review. Under the Detention Act, the Minister of Defense issues the detention order.25 The President of the District Court must review the detention within forty-eight hours from the initial arrest,26 and after every uninterrupted detention period of three months at the most.27 The Detention Act grants the Minister unlimited authority to extend the period of detention every six months, provided the court approves.28 To conduct its review, the court can deviate from the rules of evidence if the President of the District Court is satisfied that this will contribute to the discovery of the truth and the just handling of the case.29 The Detention Act also enables the court to accept evidence without the detainee or their representative being present and without revealing the evidence to them if the judge is convinced that disclosure is liable to ‘harm the security of the region or public security’.30 The decision of the President of the District Court to confirm the detention order or the decision concerning reconsideration of the order can be appealed to the Supreme Court, which shall review the evidence before making its decision. Unlike the previous Defense Regulations, the application of the Detention Act is explicitly restricted to a ‘state of emergency’ situation.31 As mentioned, the emergency situation is ongoing in Israel since 1948 and has been extended by the Knesset from year to year until this day.32 Although international law does not prohibit administrative detention,33 there are limits on its use. Detention without criminal trial is permitted only in a declared state of emergency and

23

24 25 26 27

28 29 30 31

32 33 226

B’Tselem & Hamoked Centre For the Defence of the Individual, Without Trial: Administrative detention of Palestinians by Israel and the Incarceration of Unlawful Combatants Law (2009) Available at: www.btselem.org/download/200910_without_trial_eng.pdf accessed 14 May 2014, p 13. Emergency Powers (Detention) Law, 5739-1979, 33 LSI 89. Authority cannot be delegated: Detention Act, art 11. The Detention Act, art 4(a) requires the approval of the President of the District Court to confirm the detention order as a prerequisite for the validity of the order. Ibid, art 5. The judge must examine whether the circumstances have changed, especially the detainee’s dangerousness. The reviewing court re-evaluates (do novo) the decision of the administration. Ibid art 2(a). Ibid art 6(a). Ibid art 6(c). Ibid, art1; D Barak–Erez and M Waxman, ‘Secret evidence and the due process of terrorists detentions’ (2009) 48 Columbia Journal of Transnational Law 3, 18–9; M Rudman and M Qupty, ‘Emergency Powers (Detention) Law: Israel’s courts have a mission – should they choose to accept it’ (1989–1990) 21 Columbia Human Rights Law Review 469, 470–1. See Law and Administration Ordinance No. 1 of 5708–1948, 1 LSI 7, art 9; Basic Law: The Government (2001) art 38. Pearlstein (n 1).

Executive measures against the liberties of terrorism suspects

for as long as it is reasonably necessary to address the security threat. Israel ratified the ICCPR in 1991. Article 9 prohibits arbitrary detention, but, in narrow circumstances and if there is a public emergency threatening the life of the nation, states may derogate under article 9. Israel’s continuous state of emergency serves as a reason for exemption from fulfilling article 9’s requirements.34

The Occupied Territories track The most frequent use of administrative detention by Israel has been in the territories occupied in 1967. In that area, in addition to international law applicable to military occupation and the law that was in force in June 1967, the military commander in the area can also issue military orders.35 These military orders36 authorise military commanders to administratively detain inhabitants who are perceived to pose significant risks to public security,37 subject to periodical judicial review by a military judge (as opposed to a civil judge in the Israeli track). According to the military order, and similar to the Detention Act, it is possible to detain a person for six months and to extend this period by six months repeatedly without limit.38 The detainee must appear before a military judge within eight days (compared with forty-eight hours in the Detention Act) to review the detention,39 and the judge’s decision is subject to appeal to the Military Court of Appeals.40 After that, both sides may petition the Supreme Court.41 Similar to the Detention Act, the military order allows the use of inadmissible evidence and allows the court to use secret evidence without revealing details to detainees and their lawyers.42

The Unlawful Combatant track The ‘Unlawful Combatant Act’ 200243 was originally an attempt to circumvent a Supreme Court judgment in the ‘bargaining chips’ case,44 which decided against the continuation of detention of Lebanese detainees as ‘bargaining chips’ for information concerning an Israeli navigator. The Court ruled that detention is not permitted for reasons that are beyond personal risk emanating from the detainee.45 Nonetheless, the final outcome, as approved by the Knesset, was more nuanced.

34 35 36 37 38 39 40 41

42 43 44 45

J Quigly, ‘Israel’s Forty-Five Year Emergency: are there limits to derogations from human rights obligations?’ (1994) 15 Michigan Journal of International Law 491, 497. See, for example, HCJ 7957/04 Mara’abe v Prime Minister of Israel, 45 ILM 202, 207 (2006); HCJ 2056/04 Beit Sourik Vill Council v Government of Israel 58(5) PD 807 [2005], [23]. Military Order Regarding Preventive Detention (Judea and Samaria) (No 1591), 5767-2007, 1. Ibid, art 1(a). Ibid, art 1(b). Ibid, art 4(a). Ibid, art 5. Although the military order does not include this option, it was developed as a practice: E Cohen, ‘Justice for Occupied Territory? The Israeli High Court of Justice Paradigm’ (1985–1986) 24 Columbia Journal of Transnational Law 471, 471. Military Order (n 36), arts 7–8. Incarceration of Unlawful Combatant Law, 5762–2002. CrimFH Anonymous Persons v Minister of Def. 54(1) PD 721, 743 [2000]. Ibid. 227

Mordechai Kremnitzer and Lina Saba-Habesch

Although the Unlawful Combatant Act was justified by the need to hold a significant number of persons captured in territory outside the control of the state, there is no mention of this in the legislation, and in practice it is applied in cases that have nothing to do with this rationale. In practice, the law enables the administrative detention of Palestinians from the Gaza Strip, where the Israeli military regime is not applicable since the withdrawal from Gaza in 2005.46 The definition of unlawful combatant is, according to article 2, very wide and includes persons who are not prisoners of war and those who participated in hostilities or were members of forces carrying out hostilities against the state. An officer with the rank of captain or higher may detain whoever meets the definition of unlawful combatant temporarily until an imprisonment warrant is issued by the Chief of Staff who can delegate his or her authority to a major general. The prisoner must be brought before a district court judge within fourteen days (as opposed to eight days in the occupied territories’ track and forty-eight hours in the Israeli track).47 The order is not limited in time, but the prisoner has to be brought before a District Court judge every six months to examine if the reasons for detention remain unchanged.48 As in the other regimes, the Unlawful Combatant Act permits the court to deviate from the rules of evidence and to accept evidence in an ex parte hearing. 49 The District Court decision is subject to appeal to the Supreme Court. The Supreme Court, in case 6659/06,50 interpreted the law narrowly and minimised its scope. Former Chief Justice Beinish ruled that the law is applicable only to foreigners and that only a significant degree of involvement in terrorist activities against the state of Israel could generate a risk at a level that should justify detention.51 In the Court’s words: ‘he took a direct or indirect part that involved a contribution to the fighting – a part that was neither negligible nor marginal in hostile acts against the state of Israel’.52 The Unlawful Combatant Act applies only during the existence of a state of armed conflict.53 However, as opposed to the Detention Act and the military orders, its application is not conditioned on a declared state of emergency.54 One explanation for that is the different rationale of the Unlawful Combatant Act – while the Detention Act and the military orders are designed to prevent domestic threats to the state’s security, the Unlawful Combatant law was enacted to enable the detention of citizens of a foreign country who take part in terrorist activities against Israel. Its rationale is to remove these combatants from the area of hostilities (which is similar to the rationale of holding prisoners of war).

46 47 48 49 50 51 52

53 54 228

ADA 7750/08 A v State of Israel [2008]. Unlawful Combatants Law, art 5(a). Ibid, art 5(c). Ibid, art 5(e). CrimA 6659/06 A v State of Israel, [2008] 47 ILM 768, [33]. Y Shany, ‘The Israeli Unlawful Combatants Law: Old Wine in a New Bottle?’ (International Law Forum of the Hebrew University of Jerusalem Law Faculty, research no. 3-12, 2012) 1, 11. A (n 50), [21]. In a later case, Justice Jubran also interprets the definition of unlawful combatant in a narrow way; it is not enough that a person belongs to hostile ‘forces’, unless involved in high rank ‘forces’ operating against Israel. He also emphasised the need to interpret narrowly the alternative of taking ‘direct’ or ‘indirect’ part in the hostilities. See A (n 50) [15–17]. Shany (n 51) 8. Ibid, 9.

Executive measures against the liberties of terrorism suspects

Although the Unlawful Combatant Act supposedly demands proof of personal dangerousness, the rebuttable presumptions in Articles 7 and 8 negate that. Article 7 sets out a presumption according to which the mere fact of membership of forces carrying out hostilities against the state is evidence of the detainee’s dangerousness. Article 8 imposes on the detainee the burden to refute the determination of the Minister of Defence regarding the nature of the organisation he belonged to and its activities. In practice, these presumptions make it extremely easy for the state to ‘prove’ its case while largely eroding the presumption of innocence.55 The Supreme Court, in case 6659/06, did not decide on the legality of these presumptions but determined that, if in the future the state chooses to make use of these presumptions rather than to prove individual dangerousness, the court may review the question of the constitutionality of the presumptions.

Judicial review All three administrative detentions regimes include a judicial review process before the Israeli Supreme Court.56 Given that these imbalanced mechanisms allow for deviation from the rules of evidence, it is difficult to overstate the importance of judicial review. As former Supreme Court Justice, Shamgar stated,‘Administrative detention without effective judicial review might result in errors in fact or in judgment which means, a deprivation of liberty of a person liberty without any substantive basis.’57 Nonetheless, two main factors might jeopardise judicial review. First is the use of secret evidence and the holding of ex parte hearings.58 Second is the ‘false negative false positive’ bias whereby the judge has much less to lose – both personally and as a member of the judiciary – from an incorrect decision that approves an unjustified detention than from erroneously deciding to release from custody a dangerous person, who gets involved in a terrorist activity. In the latter case the mistake will be revealed, and the judge and the judiciary as a whole will face harsh criticism, while in the former it is almost impossible to prove the mistake. Thus, there is a danger that judges will be extra cautious and in borderline cases, they will be more inclined to choose the option of detention.59 In this chapter, we shall now focus on the ‘secret evidence’ factor. The main problem of administrative detentions (in all three tracks), which is also the reason for their creation in the first place, remains the use of secret evidence and the deviation from evidence rules. When the revealed evidence does not form a sufficient ground for detention, Israeli law allows the court to examine and review the confidential evidence, in the absence of

55 56

57 58 59

O Ben Naftali and S Glichgoytsh, ‘The imprisonment of enemy forces that are not entitled to prisoners of war status’ (2002) 7 Hamishpat 435, 445. Although the court announced on more than one occasion that there should not be a difference between the judicial review according to the detention law and the detention order applied in the occupied territories (see, for example, Agbar (n 12)), empirical research by Shiri Krebs, in which she interviewed state attorneys and defence lawyers who both felt that judicial review is tighter with regard to detentions of Israelis than with regard to military orders and unlawful combatant orders, suggests otherwise: S Krebs, ‘Lifting the Veil of Secrecy: Judicial Review of Administrative Detentions in the Israeli Supreme Court’ (2012) 45(3) Vanderbilt Journal of Transnational Law 639, 692. HCJ 253/88 Sagdeye and Others v the Minister of Defense and Others PD 42 (3) 801, 819 [1988]. Barak–Erez and Waxman (n 31) 5. Kitai–Sangero (n 12) 648–649. 229

Mordechai Kremnitzer and Lina Saba-Habesch

the detainee and their lawyer. In fact, most of the evidence in these cases is privileged.60 The case law even indicates that authorities sometimes claim for confidentiality of material that should not have been classified as such.61 In addition, the court is allowed to deviate from the law of evidence applicable in criminal proceedings and so could approve detention relying solely on inadmissible hearsay and intelligence privileged evidence.62 This legal framework is as problematic for the detainee as for the court. For detainees, using secret evidence deprives them of the right to confront the allegations effectively in a situation where basic rights, including the right to liberty, are threatened.63 The detainee, in practice, will not be aware of the accusation and the adverse evidence. Given this situation, they will not be able to offer an alternative, exculpatory explanation to the privileged evidence. If the sources are human, their identity will not be revealed to the detainee, who will not be able to challenge their credibility or their concealed motives.64 As for the court, the judges are deprived of crossexamination of witnesses’ trustworthiness or accuracy of their testimonies. They are also deprived of the ‘other side’ of the story, provided by the detainee. The evidence is often problematic in nature. Sometimes they will have to deal with second- or even third-hand hearsay evidence; sometimes with human sources whose reliability is very hard to examine, especially when sources receive remuneration for inculpatory evidence. Another factor that enhances the difficulty is that the judges, in Israel, almost never investigate the source in order to directly assess its reliability. In these circumstances, the risk of error against the detainee is significant.65 In order to compensate for the violations of the detainee’s rights and to help the judges in performing an effective judicial review when examining secret evidence, democracies tend to use two different models, the ‘judicial management model’, which entails an active judicial review, and the ‘special advocate model’, where only an advocate with security clearance is allowed to examine the secret evidence and act on behalf of the detainee. Below we shall present these two models and examine them according to two standards. First, to what extent do they provide judges with effective means to activate judicial review and to what extent they reduce the risk of error? Second, to what extent do they harm or protect the fairness of the procedure: Is the detainee perceived as a subject or an object to the proceedings? Do they maintain a proper balance of powers between the parties to the proceedings?

60

61 62

63

64 65

230

Ninety-five per cent of the court’s decisions from 2000 to 2010 were based on secret evidence and ex parte proceedings: S Krebs, ‘The Secret Keepers: Judges, Security Detentions, and Secret Evidence’ in L Lazarus, C McCrudden and N Bowles (eds), Reasoning Rights: Comparative Judicial Engagement (Hart, Oxford, 2014). HCJ 317/13 Aberah v The Military Commander in the West Bank (27 January 2013). Art 6(a) to the Detention Act. However past case law set various limitations with respect to the probative value of administrative evidence; the court should demand cross-referencing and multiple independent sources regarding the dangerousness of the detainee, and reliance on human sources should be circumspect: Adm. Det. Pet. 8788/03 Federman v Minister of Defense PD 58(1) 176. D Beinish, ‘Secret Evidence in the Supreme Court: Challenges and Practices’ (International Conference on the Use of Secret Evidence in Judicial Proceedings: Democratic Principles and Practical Experiences. Available at: http://en.idi.org.il/events/special-events/internationalconference-on-the-use-of-secret-evidence-in-judicial-proceedings-democratic-principles-and-pra ctical-experiences, 2012 accessed 18 February 2012. Federman (n 62) [11]. ADA 2627/09 Osama Rashek v State of Israel [2009]; HCJ 1546/06 Gazawi v Military Commander in the W Bank, See also A v United Kingdom App No 3455/05, 19 February 2009, (2009) 49 EHRR 29 [205].

Executive measures against the liberties of terrorism suspects

Providing detainees with enough information to allow them to protect themselves and prepare their defence (hereinafter ‘the gist’) is an essential part of this examination. Also relevant is the question of whether detainees feel that there is someone who can help them create a proper balance between themselves and the state.

Judicial management model The Israeli Supreme Court has developed a unique activist approach in examining nondisclosed evidence.66 According to this practice, the court suggests to the detainee to review the evidence ex parte behind closed doors. If the detainee agrees, as usually happens,67 the court examines the confidential evidence in a non-adversarial proceeding. The judicial review conducted by the Israeli Supreme Court is particularly meticulous and usually understood as a de novo review,68 in which the court examines again the entire file and, if needed, demands additional relevant information.69 According to the rhetoric in the case law, when examining the evidence the court is acting as the detainee’s ‘mouthpiece’ and ‘temporary advocate’.70 It should perform a dual task: to reveal to the detainee as much evidence as possible without risking human life (of agents and sources) and state security interests;71 and to evaluate the testimonies and review the substance of the administrative detention at issue (judicial review).72 The court performs its role ex parte, during which the representative of the security agency (not the agents themselves) is investigated concerning the privileged evidence. This process is extremely important because in most cases the court’s final decision is based on these twenty minutes (on average) of ex parte hearing.73

The special advocate model Other countries, such as the UK and Canada, implement the ‘special advocate’ model to deal with secret evidence.74 The US (in the ‘Habeas cases’) embraced a different version of the ‘special advocate’ model that will be referred to as the ‘cleared counsel’ model.

66 67

68 69 70 71

72 73 74

Barak-Erez and Waxman (n 31) 22. Ibid, 23. If the detainee does not agree, some judges think that at this point the court should accept the government arguments based on the presumption of legality. By contrast, Justice Beinish (n 63) suggests that the court should examine each case and give a decision whether to grant the government a presumption of legality or force it to issue a privilege certificate according to the strength of the revealed evidence and the detainee’s arguments. Barak-Erez and Waxman (n 31) 40. Krebs ‘The Secret Keepers’ (n 60) 13. Agbar (n 18); Federman (n 62) [11]; ADA 6183/06 Gruner v The Minister of Defence, [2006] [6]. According to the language of the detention regime, when deciding what to reveal to the detainee, the judge is obliged to consider only whether the disclosure of the evidence will impair state security. As opposed to a regular criminal proceedings, the detainee’s interests and the importance of evidence for the defence are not part of the relevant considerations: Barak-Erez and Waxman (n 31), 21. For a more comprehensive analysis, see Krebs, ‘Lifting the Veil of Secrecy’ (n 56). Krebs ‘The Secret Keepers’ (n 60) 14. See J Ip, ‘The rise and spread of the special advocate’ [2008] Public Law 717; M Chamberlain, ‘Update on procedural fairness in closed proceedings’ (2009) 28 Civil Justice Quarterly 448; G Van Harten,‘Weaknesses of adjudication in the face of secret evidence’ (2009) 13 International Journal of Evidence & Proof 1; A v United Kingdom (n 65) [219]–[220]; J Chedrawe,‘Assessing risk, minimising uncertainty, developing precaution and protecting rights’ (2012) 12 Oxford University Commonwealth Law Journal 33. 231

Mordechai Kremnitzer and Lina Saba-Habesch

The special advocate is a lawyer with security clearance who represents the detainee and can be exposed to the secret evidence but is obliged not to reveal the secret evidence to anyone else, including to the detainee. The special advocate communicates with the suspect before seeing the evidence, but is generally banned from seeing him after being exposed to the secret evidence.75 During the ex parte hearing the special advocate has two main roles: first, to argue for greater disclosure to the detainee (beyond the ‘gist’ that may have been revealed); second, to challenge the prosecution’s allegations on the basis of the classified material (and so help the court to perform an effective judicial review).76 In performing these duties the special advocate can make oral or written submissions to the court and cross-examine witnesses.77 This model has different shapes in the different countries in which it is adopted, including in the UK and Canada. One important distinction between the systems relates to the information revealed to the special advocate. In the UK, special advocates are granted access only to evidence the government seeks to use affirmatively against the individual, and any potentially exculpatory information in the government possession. In Canada, special advocates are given access to the entire file; this puts the special advocate and the government on the same level and allows the advocate to make arguments based on contradictions, inconsistencies or the gaps in the government’s own files.78 The ‘cleared counsel model’ used in the US differentiates from the pure special advocate model in three important elements. First, in the cleared counsel model, the detainee’s own lawyer undergoes vetting and agrees not to disclose the secret evidence to his client. In this model, there is no third party. In the special advocate model, a special lawyer (in addition to the suspect’s personal lawyer) is appointed by the state from an approved list. The special advocate represents the interests of the detainee, but the relationship between him and the detainee is not a regular ‘advocate and client’ and both the UK and Canada provide that he is not responsible to the detainee.79 Second, in the cleared counsel model, after seeing the secret evidence, the cleared counsel may meet with his or her client and ask him or her questions, using the secret information revealed, so long as its existence or content is not disclosed to the detainee.80 By contrast, and as mentioned above, the special advocate cannot communicate with the suspect after having received the confidential material (unless he gains special permission from the court, which is rarely given).Another important feature of the cleared counsel model is that although cleared counsel cannot share secret information with suspects, they are allowed to do so with other cleared counsel in other Guantánamo Habeas cases, inside the detention facility. This is extremely important due to the fact that many Guantánamo cases have similar

75 76

77 78

79 80 232

Barak-Erez and Waxman (n 31) 27–31. A Tomkins, ‘Justice and Security in the United Kingdom: Four Models’ (International Conference on the Use of Secret Evidence in Judicial Proceedings: Democratic Principles and Practical Experiences, December 2012. Available at: http://eprints.gla.ac.uk/91090/1/91090.pdf accessed 18 February 2015). Barak-Erez and Waxman (n 31) 31. The US situation is somewhere in between: D Cole and S Vladeck, ‘Navigating the Shoals of Secrecy: Secret Evidence and “Cleared Counsel” in the United States, the United Kingdom, and Canada’ in L Lazarus, C McCrudden and N Bowles Reasoning Rights: Comparative Judicial Engagement (Hart Publishing, Oxford,’ 2014). Barak-Erez and Waxman (n 31) 28. D Cole and S Vladeck (n 78).

Executive measures against the liberties of terrorism suspects

or even the same evidence. This way, lawyers can share and compare notes about common allegations, informants or sources of information.81 In practice, active British special advocates complain that the restraints on their activities make it difficult for them to perform effectively. They also point out that, although theoretically, they are allowed to perform their own investigation and adduce evidence, in practice this never happens. Their investigation is limited to internet searches because of the fear that they might reveal secret information if they perform an active investigation.82 In the US, on the other hand, the main practical problem is that the authorities convince the detainees that their lawyers are, in fact, interrogators and are not to be trusted.83 One major improvement in this field is that the protective order was amended to allow the bringing of introductory materials from the detainees families on the outside into initial meetings with the lawyers as a mean for confirming identity and building trust.84 Another problem they pointed to is that the government has routinely sought to monitor the detainee’s communication with their lawyer, and to perform a classification review of all materials lawyers take into and out of their meetings, including their notes.85

Judicial management model versus special advocate model Effective judicial review

According to some scholars, one prominent advantage of the judicial management model is that it provides for an effective judicial review, which minimises the chances for error and enhances accuracy.86 Supporters of this argument claim that the judges who frequently sit in these cases are familiar with the methods of intelligence gathering and, as time goes by, gain expertise to assess the weight of the various kinds of evidence and can second-guess their validity.87 Despite the aforementioned claim, this model suffers from major accuracy problems. First, the set-up of the ex parte hearing by its nature is problematic. It is entirely one-sided and necessarily biased against the absent detainee. Opening for the judges the gate to state secrets is seductive. It fosters a unity in all participants as protectors of the security of the state. This atmosphere both reflects and enhances priority to security and to the state’s case.88 Second, the tools the judges possess to contradict the secret evidence they are exposed to are limited. The court is expected to evaluate one-sided, unchallenged, written evidence without calling

81

82 83 84 85 86 87 88

When dealing with high value detainees, this sharing needs to be confirmed by the authorities: S Kadid,‘Confronting Ethical Issues in National Security Cases: The Guantanamo Habeas Litigation’ (2011) 41 Seton Hall Law Review 1397, 1405, 1412; Protective and Procedure for Counsel Access to Detainees at the United States Naval Base in Guantanamo Bay and Protective Order for Habeas Cases Involving to Secret/Sensitive Compartmented Information, in Re Guantanamo Detainee Litigation, 557 F Supp 2d 143,148 (DDC, 2008). Cole and Vladeck (n 78); A Tomkins, ‘National Security and the Due Process of Law’ (2011) 64 Current Legal Problems 215, 217. Kadid (n 81) 1400. Ibid, 1407. This due to the view according to, all detainees’ statements are classified Al Odah v United States, 346 F Supp 2d 1 (DDC, 2004). Barak-Erez and Waxman (n 31), 40–1, 36–46. Beinish (n 63). Barak-Erez and Waxman (n 31) 48–49; Kremnitzer (n 12). 233

Mordechai Kremnitzer and Lina Saba-Habesch

witnesses and getting a personal impression about them. Moreover, judges do not examine the entire information held by the Israeli Security Agency (ISA), rarely demand to examine it and are usually satisfied with the briefs handed to them.89 When the detainee is not exposed to a concrete, specific allegation, he is incapable of providing a meaningful line of defence. Without this, the judge too wanders in blindness and is incapable to act as the detainee’s lawyer and mouth.90 In interviews held by Krebs,91 the Supreme Court judges expressed discomfort with their role as the detainee’s lawyers, as well as with their ability to question the ISA position and admitted that these are indeed very difficult cases to handle.92 One judge stated that: The judges cannot differ with the ISA story. How can I? I don’t have the defence lawyer jumping to say ‘it never happened’, ‘This is not true’. My ethos as a judge is that I have two parties. Of course, I can think by myself, but I need tools, which are missing… To the most I have very limited tools.93 Moreover, judges in adversarial system are not skilled in inquisitorial investigations. The special advocate model and the cleared counsel model, as opposed to the judicial management model, introduces an adversarial element to the procedure. These lawyers get to meet with the detainees before the ex parte hearing, and in cases where the detainee is provided with the gist, this meeting is expected to provide them with sufficient tools to challenge the secret evidence and to help the court with its judicial review. Over the years, these lawyers develop expertise in dealing with secret evidence and challenging them. Moreover, these lawyers are expected to examine the files thoroughly with the sole aim of providing defence to the detainees. They do it in light of a very detailed interview conducted with the detainee, before they see the secret evidence. Nonetheless, this system too is far from being perfect, especially due to limitations imposed on these lawyers regarding the scope of secret evidence revealed to them, limitations on communication between them and the suspects after they have seen the secret evidence and limitations concerning the appointment of the lawyer (in the special advocate model). Despite the special advocate model’s problems, it still has a much higher potential to secure an effective judicial review. Combining different elements from the different systems, including the cleared counsel system, such as sharing secret information between different lawyers, meeting the detainee after being exposed to the secret evidence and revealing the entire file to the lawyer, can provide the lawyers with sufficient information and tools to challenge the secret evidence. As a result, judges will be able to reach a decision based on a two-sided story and challenged evidence. The fairness of the proceedings. Is the detainee a subject or an object?

As stated, the threshold condition to minimise the imbalance caused by the use of ‘secret evidence’ is providing detainees with enough information – the ‘gist’ – to allow them to protect themselves and prepare their defence. ‘Without the gist’, the detainee will ‘participate’ in a fate

89 90 91 92 93 234

Hamoked and B’Tselem report (n 23), 12-13 Kremnitzer (n 12); Krebs, ‘Lifting the Veil’ (n 56) 694. Krebs, ‘Lifting the Veil’ (n 56). Ibid, 694, 683. Ibid, 684.

Executive measures against the liberties of terrorism suspects

determining process without him being able to really participate in it – a kind of Kafkaesque situation. Protecting the ‘gist’ has also a direct effect on the effectiveness of the judicial review and should be taken into consideration when evaluating it. In the UK, the system of special advocates had been held up by the judiciary as satisfying the fair trial requirement according to Article 6 of the ECHR so long as terrorism suspects facing serious liberty deprivations are entitled to disclosure of, at least, ‘the essence of the case against [them]’.94 Detainees are entitled to be informed of a core of the information sufficient to enable them to respond to the allegations against them, to prepare their defence and mainly to test the quality of the government’s evidence.95 Lord Philip in AF emphasised that a trial procedure can never be considered fair if a party to it is kept in ignorance of the case against him.96 He concluded that a system that relies upon the trial judge to determine this issue without allowing the controlee to put a positive case forward to establish his innocence is not satisfactory, however able and experienced the judges.97 The courts in the UK also ensured that the ‘gist’ cannot be replaced by the use of special advocates.98 The ‘gist’ requirement in the UK system is extremely important because it can mitigate the hardship caused by the lack of communication between the detainee and the special lawyer after the special lawyer sees the secret evidence. After the detainee is provided with the ‘gist’, he will know what he is accused of, he will sometimes be able to guess what information the authorities have on him and can instruct his lawyer how to oppose such evidence and in any case he will be able to provide his lawyer with his exculpatory explanation.99 Since AF, the courts have continued to apply the ‘gist’ requirement, describing it as the core ‘irreducible minimum’ of the requirement of due process under article 6 to the ECHR.100 The ‘gist’ requirement, despite its crucial importance to the detainee’s fair trial and to the effectiveness of the judicial review, does not exist, as such, in the Israeli system. The authorities, especially in the context of the Unlawful Combatant law, do not tend to reveal the essence of the allegations to the detainee or to his lawyer.101 The courts do not insist on such disclosure. It seems that the over-confidence in the judges reviewing the secret material, made the courts insensitive to the ‘gist’ requirement, as reflected by the following view of the former Chief Justice Beinish: In view of the fact that there is judicial review of the detention, and in view of the care in which the court is required to examine the privileged material brought before it exparte, it cannot be said that the arrangement provided in section 5(e) of the law in itself violates the rights of the detainee disproportionality.102 A special advocate system is more likely to require the disclosure of the ‘gist’ because, otherwise, the special attorney’s function will become ineffective.103 In an activist court system such a need

94 95 96 97 98 99 100 101 102 103

Secretary of State for the Home Dept. v AF (no 3) [2009] UKHL 28 [65] (Lord Phillips) (emphasis added). Barak-Erez and Waxman (n 31) 6. Barak Erez and Waxman (n 31) 11–13; Tomkins (n 82) 218. AF (n 94) 63. Ibid. Barak-Erez and Waxman (n 31) 34; A v United Kingdom (n 65) [220]. See for other jurisdiction Elias (n 6) 187. Tomkins (n 82) 218. ADA 2595/09 Sofi v State of Israel (unpublished) [2009]; Barak-Erez and Waxman (n 31) 38. A (n 50) [43]. The cleared counsel system in the US does not protect the ‘gist’, although the cleared counsel can meet with the detainee after he sees the evidence: Cole and Vladeck (n 82). 235

Mordechai Kremnitzer and Lina Saba-Habesch

will be less perceptible. Judges count on their own examination of the evidence and believe that any lack of information can be remedied by later judicial review.104 This attitude may betray over-confidence in their ability and insensitivity to the detainee’s procedural rights. In addition, examining individual petitions in an atmosphere of cooperation between the court and law enforcement and security agents is not conducive to the determination of clear and unequivocal rules. In the few cases judges determined such rules, they were not decisive in enforcing them. As a result of the Supreme Court’s behaviour, a vicious circle is created. The judge becomes less vigilant to fundamental flaws of the procedure, to its violation of detainee’s basic rights and to the dangers of its application.

Conclusion After reviewing both models, the special advocate model appears better at providing an effective judicial review and at protecting the detainee’s procedural rights. Although this model cannot solve the entire problem of unfairness, it can reduce it significantly. Provided the special advocate model protects the ‘gist’, this system enables the detainee to engage meaningfully in the proceedings, minimises error, and increases accuracy.105 As a result, the entire proceedings will approximate closer to the adversarial criminal proceedings and to due process. It decreases the problematic nature of administrative detention. On the other hand, in the judicial management model, the court cannot be a substitute for real and meaningful representation of the detainee. Due to the nature of the function that the court fulfils – resolving disputes between parties – it cannot be in only one party’s shoes. Without revealing to the detainee and his representative the concrete allegations implicating the detainee as a dangerous person, the court cannot perform a proper representation. The threshold requirement is that the detainee receives the core information – the ‘gist’ – that enables him to prepare his defence. To do this, the state will have to reveal to the special lawyer the entire file of the detainee (as the situation in Canada). In cases where the detainee knows the ‘gist’ at the time of the meeting between the special advocate and his lawyer, the lawyer will be able to conduct a detailed effective interview with the detainee, in order to try to cover all the possible options. It is impossible to fully protect in all cases both the detainee’s basic right to know the reasons for his detention (what are the allegations against him) and state security. Nonetheless, the ‘gist’ must be irreducible. The state may face, therefore, the dilemma of choosing between sacrificing ‘some’ security to enable the detention or uphold secrecy and abandon the detention.106 The dilemma is a harsh one. But detention proceedings that do not entail the ‘gist’ requirement cannot be deemed as fair (even minimally fair) and do not respect the human dignity of the detainee. Therefore, they should not be tolerated in a democracy.

104 105 106

236

Barak–Erez and Waxman (n 31) 35; A (n 50). Barak-Erez and Waxman (n 31) 35–6 The control order in AF was revoked because the Home Secretary decided that the disclosure required by the court could not be made: A Kavanagh,‘Special Advocates, Control Orders and the Right to a Fair Trial’ (2010) 73 Modern Law Review 835, 852. The ‘gist’ requirement led the UK government to the lifting of six control orders: D Anderson, Control Orders in 2011 (Home Office, London, 2012); Government Response to the Report by D Anderson (Cm 8443, London, 2012). There have been no reported incidents of terrorist activity by the relevant individuals.

16 The global system of counter-terrorist finance What has it achieved; what can it achieve? Peter Sproat

Introduction Extremist groups that commit acts of terrorism require finance for a wide variety of purposes.1 At minimum funds are required to obtain, maintain, and accommodate armaments, if not personnel, and to move both into range of a target. At most, extremist groups aim to fund political and social activities, such as propaganda and welfare, so they can sustain support over the long term. Pre-crime payments include everyday items such as rail tickets as well as specialist materials and services such as counterfeiting. Post-crime costs include those associated with escaping and aiding dependents of those captured or killed. Whilst such fundraising is the most obvious aspect of terrorist finance it is not the only one, and here the term is used to refer to the raising, storing, concealment, and transfer of such funds. Terrorist finance may be generated, hidden, and moved via both legal and illegal means, with or without the use of legitimate businesses or non-profit organisations (NPOs).2 Unsurprisingly, many politicians have attempted to prevent this financial lifeblood reaching such violent organisms, and efforts to counter-terrorist finance (CTF) have developed within nation-states and then spread across the world via various international organisations – especially in the aftermath of 9/11. CTF is premised upon the idea that if one reduces the funds going to terrorist groups there will be fewer acts of terrorism or the impact of such acts

1

2

The amount can vary dramatically with individuals or unstructured collectives, such as the bombers on 7 July 2005, requiring far less than those who hope to hold territory. For an estimate of the cost of the former see the Home Office, Report of the Official Account of the Bombings in London on the 7th July 2005 (HC 1087, 2005-06) paras 63, 64. Counter-Terrorism Implementation Task Force, Tackling the Financing of Terrorism (United Nations, New York 2009) 3. 237

Peter Sproat

will be lessened. More idealistically, identifying and isolating terrorists’ sources of funding, ‘incapacitates not only their execution of attacks, but also their ability to maintain international alliances, create infrastructures around the world for recruitment and training, and purchase or develop deadly weapons’, as the Assistant Secretary of the US Treasury for terrorist financing once put it.3 Rather than follow this short explanation of the need for CTF with a large historical section on the origins, spread, and harmonisation of CTF around the world, this chapter will briefly describe the main aspects of the global CTF system. This allows for a more focused and analytical attempt to assess the actual and potential achievements of CTF globally. Without expecting full endorsement of the perception of the threat and CTF’s achievements as proffered in this chapter, it is hoped that the chapter will add to the reader’s knowledge and understanding of key issues.

Main aspects of CTF in international law and practice It is useful to see CTF at the international level as consisting three main aspects, namely the UN ‘asset-freezing’ lists, together with the national CTF laws and reporting regimes. Not only does this help focus the chapter and break up the overlapping parts of CTF, it allows the highlighting of the relative benefits of each aspect. Together with the exchange of information between countries these three aspects constitute a global CTF system. In terms of the first aspect of CTF at a global level – the UN asset-freezing lists – these were initially created by the UN Security Council Resolution (UNSCR) 1267 in 1999, one year after the bombing of American embassies in East Africa. The UN imposed these economic sanctions (plus others on travel and armaments) on the Taliban for failure to comply with two earlier resolutions and created a committee – the so-called ‘1267 Committee’ – to overseeing their implementation. Resolution 1267 also mentioned Osama bin Laden, demanding that he should be handed over to a relevant state for prosecution, but it was not until 2000 that UNSCR 1333 extended the sanctions to Osama bin Laden and any individuals and entities associated with him. Soon after the attacks on 11 September 2001, UNSCR 1390 transformed the 1267 regime into a global list of Al Qa’ida and Taliban members, without temporal or geographic limitations. In 2011, the Security Council decided to split this consolidated list, producing two separate sanctions lists and committees to monitor member states’ compliance, with the 1267 Committee concentrating only on Al Qa’ida.4 Today all members of the UN are legally bound to enforce freezing the financial assets of those on the two lists be they individuals and entities associated with the Taliban or Al Qa’ida. States do so after introducing

3 4 5

238

JC Zarate, ‘Bankrupting Terrorists’ in The Global War On Terrorist Finance (USA Economic Perspectives, US Department of State, September 2004) 3, 3. Under Resolution 1989 (2011), the sanctions list established pursuant to resolution 1267 (1999) would be known as the ‘Al-Qaida Sanctions List’. Resolution 1988 (2011) relates to the Taliban. See for details, LK Donohue, The Cost of Counterterrorism (Cambridge University Press, Cambridge, 2006) ch 3; JK Giraldo and H Trinkunas (eds), Terrorism financing and state responses: A comparative perspective (Stanford University Press, Stanford, 2007); T Biersteker and SE Eckert, Countering the financing of terrorism (Routledge, New York, 2007); C Walker, Terrorism and the Law (Oxford University Press, Oxford, 2011) ch 3; M de Goede, Speculative security: The politics of pursuing terrorist money (University of Minnesota Press, Minneapolis, 2012).

The global system of counter-terrorist finance

domestic law.5 Individual states and regional organisations, such as the EU,6 have also developed their own sets of lists, but the focus here is on the truly global lists produced by the UN.7 In terms of the second aspect – CTF laws – the UNSCR 1373 also obliged member states to criminalise the ‘wilful provision or collection’ of funds by their nationals or in their territories ‘with the intention that the funds should be used, or in the knowledge that they are to be used, in order to carry out terrorist acts’.8 The resolution also demanded UN member states should freeze financial assets of those who (attempt to) facilitate or commit terrorist acts.9 Amongst other things it called upon them to sign and ratify the International Convention for the Suppression of the Financing of Terrorism (1999) (ICSFT) and created a CounterTerrorism Committee (CTC) of the Security Council to monitor compliance and called upon states to report to the CTC.10 Once again implementation of the UNSCR resolution was achieved through member states introducing domestic laws designed to prevent finance being given to, and accepted by, those who would commit acts of terrorism – as defined by the national authorities. Along with accompanying investigative powers, such as customer information and account monitoring orders,11 these national laws enable the authorities to investigate suspects and to examine the financial records of those who collect, give, or receive such funding. The third aspect of the global CTF system consists of the various national reporting regimes. Here it has been a different international organisation – the Financial Action Task Force (FATF) – which has encouraged states to create reporting regimes to look for instances of terrorist finance in the financial system since 2001. The FATF has been asking states to set up their own system for reporting (an expanding notion of) money laundering since 1990 and simply added similar requirements for terrorist finance. The former is often referred to as its 40 Recommendations, the latter as its 9 Special Recommendations after one was added to the initial list of eight in 2004.12 This harmonisation of laws allows for differences as states attempt to align FATF’s recommendations with their nation’s legal system and attitude to rights and responsibilities. However, generally speaking, within each reporting regime financial institutions are coerced into identifying and monitoring their clients’ financial activities – a process often referred to as continuous customer due diligence (CDD) – and to report any suspicious behaviour to the authorities usually to a national financial investigation unit (FIU).13 The mainly private financial institutions within this regulated sector may be obliged to send currency transaction reports and/or suspicious transaction reports (STRs), or the slightly wider

6 7

8 9 10

11 12 13

See Council Regulation (EC) No 2580/2001 of 27 December 2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism. Most of this paragraph relies upon K Mackintosh and P Duplat, Study of the Impact of Donor CounterTerrorism Measures on Principled Humanitarian Action (United Nations Office for the Coordination of Humanitarian Affairs/Norwegian Refugee Council, New York, 2013) 18. United Nations Security Council Resolution 1373 (28 September 2001), art 1(b). Ibid art 1(c). United Nations Security Council Resolution 1373 (28 September 2001) s 3(d). Under resolution 1535 (2004), the Security Council established the Counter-Terrorism Committee Executive Directorate (CTED) to assist the CTC. See for example (UK) Terrorism Act 2000, schs 6 and 6A. These were revised and consolidated in 2012: available at: www.fatf-gafi.org/documents/ documents/ixspecialrecommendations.html accessed 24 February 2015. See D Masciandaro and A Volpicella, Economics and Politics in Designing Supervision (BAFFI Center Research Paper Series No 2014-156, Milan 2014). 239

Peter Sproat

suspicious activity reports (SARs).14 Coercion is usually achieved by the threat of fines or closures for companies by a regulatory body and the threat of imprisonment and/or fines for individuals by the relevant national authority.

Actual and potential achievements of CTF Methodological obstacles Having identified and briefly described the main aspects of CTF at a global level, this chapter now moves on to identify and assess its actual and potential achievements. As with other counter-terrorist measures, it is very difficult to assess, as Jonsson put it, ‘[m]easuring the effectiveness of CFT efforts is challenging since the metrics tend to be either insufficient or unavailable to researchers’.15 Not only is it impossible to create ideal experimental conditions in which the only variable is CTF, but also one cannot identify the number of potential financiers deterred by the CTF regime, the impact upon a particular group,16 or the amount not sent to terrorists. As with many aspects of ‘high’ policing,17 limited detail on its implementation is publically available. A fair summation of the reasons for this was provided by Levi when he wrote most of the data are ‘highly classified and therefore not open for inspection, partly because of counter-intelligence risks that flow from explicit analysis of techniques of detection/suspicion and partly because there is little official thirst for informing the public about results’.18 He went on to note the operational costs and the ways in which groups are financed are not consistently open source data.19 Indeed, even national authorities seem to have great difficulty providing quantitative data on CTF, although, where they do so, one must take special care given that insiders have a conflict of interest. Not only do they provide a policing service, they also help produce the demand for a policing service they help to supply. In sum, it is incredibly difficult for those outside of organisations involved in national security or high policing to access information on any counter-terrorist measure, never mind to assess it.20

Assessment of CTF sanctions lists Given such difficulties, it is unsurprising the ‘extensive academic CTF literature… has focused

14

15 16 17 18 19

20

240

See S Lander, Review of the Suspicious Activity Reports Regime (Home Office, London, 2006); D Chaikin, ‘How effective are suspicious transaction reporting systems?’ (2009) 12 Journal of Money Laundering Control 238. M Jonsson,‘Countering Terrorist Financing: Successes and Setbacks in theYears Since 9/11’ (2010) 3(7) Sentinel 3(7)18, 18. These last two points come from Jonsson (n 15) 18. See J-P Brodeur, ‘High policing and low policing’ (1983) 30 Social Problems 513. M Levi, ‘Combating the financing of terrorism: a history and assessment of the control of “threat finance”’ (2010) 50 British Journal of Criminology 653, 662. Ibid. He further declared that ‘Some data are published from time to time, but their validity is questionable: for example, are they based on background intelligence independent of actual prosecution charges and how can one verify or falsify the claim that funds are linked to terrorism? Additionally, there are the usual problems — most acute in terrorism cases — of how one weights evidence that has not passed muster in court (setting aside issues of whether prejudice may incline fact-finders to believe the authorities)’ (664). For more independent sources, see P Sproat,‘Counter-terrorist finance in the UK’ (2010) 13 Journal of Money Laundering Control 315; D Anderson, Reports on the Operation of the Terrorist Asset-Freezing etc. Act 2010 (Home Office, London, 2011-13).

The global system of counter-terrorist finance

on output and outcome measures’,21 although sometimes even they are not present. In terms of CTF sanctions lists, this is best expressed in data on the amount of assets frozen. Such information enables the author to declare the UN asset-freezing lists have helped to prevent millions of dollars reaching individuals associated with Al Qa’ida and the Taliban. For many, including the US President George W Bush,‘one dime of money into a terrorist activity is one dime too much’.22 Unfortunately, the exact amount frozen under the Al Qa’ida and Taliban lists has not been published since 2007. This lack of data by those tasked with monitoring the sanctions list(s) is in stark contrast to the detail the monitoring team provided in its earliest reports, which included a table specifying the amounts frozen by each state.23 This absence of data encourages suspicion that the total amount of assets frozen under the UN listing is not a great deal more than the $85 million or so last recorded by the monitoring team.24 This suspicion is increased by the fact that no member state had informed the monitoring team or the 1267 Committee that it had located and frozen monies belonging to individuals and entities listed in the last two years.25 The latter evidence helps support the idea of a general levelling-off because ‘the chance of finding assets is greatest immediately following a listing’ according to the monitoring team.26 Armed with a total for the amount of Al Qa’ida and Taliban assets frozen around the world, it is possible to assess its importance by contrasting it to estimates of their income. The result, of course, depends upon the figures contrasted. For example, the cumulative figure for the seven years (2002–7) of sanctioned finance is ‘approximately $85 million’.27 This constitutes approximately one-third or less than one-fifth of the $250–$470 million the UN believed just one of the two groups (the Taliban) gained from just one source (opium cultivation) in just one year (2008).28 Alternatively one can obtain a more encouraging result by comparing it with the $155 million ‘collected from the Afghan drug trade in 2012’ according to the Taliban sanctions 21

22

23 24

25

26 27 28

M Brzoska, ‘Consequences of assessments of effectiveness for counterterrorist financing policy’ (2014) Administration & Society. Published online before print 29 April 2014, doi: 10.1177/ 0095399714532272 3. Office of the Press Secretary, President Freezes Terrorists’ Assets 24 September 2001. Available at: http://georgewbush-whitehouse.archives.gov/news/releases/2001/09/20010924-4.html accessed 24 February 2015. See further A Acharya, ‘Small amounts for big bangs? Rethinking responses to “low cost” terrorism’ (2009) 12 Journal of Money Laundering Control 285; O Bures,‘Private actors in the fight against terrorist financing: Efficiency versus effectiveness’ (2012) 35 Studies in Conflict and Terrorism 712. See WB Messmer and CL Yordán, ‘A partnership to counter international terrorism: The UN Security Council and the UN Member States’ (2011) 34 Studies in Conflict & Terrorism 843. Analytical Support and Sanctions Monitoring Team (ASSMT) ‘Report of the Analytical Support and Sanctions Monitoring Team appointed pursuant to Security Council resolutions 1617 (2005) and 1735 (2006) concerning Al-Qaida and the Taliban and associated individuals and entities’ (2007) S/2007/677, 18. Annex III of the same report shows it was as high as $112m in 2002. ASSMT ‘Fourteenth Report of the Analytical Support and Sanctions Monitoring Team submitted pursuant to resolution 2083 (2012) concerning Al-Qaida and associated individuals and entities’ (2013) S/2013/467, 16 and ‘Fifteenth Report of the Analytical Support and Sanctions Monitoring Team submitted pursuant to resolution 2083 (2012) concerning Al-Qaida and associated individuals and entities’ (2014) S/2014/41 12. ASSMT ‘Report’ (n 24) 18. Ibid 18. Annex III of the same report shows it was once as high as $112m in 2002. The Executive Director of the United Nations Office on Drugs and Crime (UNODC) ‘estimated that the [Taliban] insurgency had received between $250 million and $470 million from opium cultivation in 2008 (ASSMT ‘Ninth Report of the Analytical Support and Sanctions Monitoring Team, submitted pursuant to resolution 1822 (2008) concerning Al-Qaida and the Taliban and associated individuals and entities’ (2009) S/2009/245, 8). 241

Peter Sproat

implementation monitoring team (following the split of the consolidated list).29 More important to this assessment of benefit is the fact that in the same report the official monitoring team noted that,‘[s]ince 2006 the Taliban have managed to finance an ever-increasing number of attacks, reflecting a year-on-year increase in income’.30 However for some observers, including the same monitoring team in 2012, it would be ‘wrong to judge the impact of the sanctions regime’ by reference to new assets frozen. They have a point, and this criterion should not be the sole criterion for measuring the system’s achievements. Interestingly, the monitoring team suggested, ‘it is reasonable to consider what impact the 1267 sanctions regime has had on Al-Qa’ida and its listed affiliates’. Its answer included the suggestion that the listing regime ‘has played a prominent role in keeping a focus on the need to prevent money flowing to terrorist groups’.31 The team also posited that the ‘key impact of the sanctions is likely to be as a deterrent, particularly on potential financiers of Al-Qa’ida or the Taliban, for whom the consequences of sanctions can be acute’32 and further suggested that customer due diligence (CDD) measures ‘have yielded some positive results in dissuading Al-Qa’ida and Taliban financiers from abusing the financial systems’.33 Such assessments illustrate the benefit of the global lists but also their limitations. A close reading reveals that the main impact of the sanctions was merely ‘likely’ to be as a deterrent, whilst the monitoring team failed to provide anecdotal or empirical evidence to support its claim that CDD measures had dissuaded Al Qa’ida and Taliban financiers from abusing the financial systems. Those who think that this is a harsh interpretation may note that limited praise was expressed three years later, when the Al Qa’ida-only monitoring team noted that the sanctions ‘will remain an important preventive (and disruptive) tool against them. The regime clearly has an effect’. By this it meant that ‘[p]olitically, it demonstrates the international community’s condemnation of Al-Qa’ida-related violent extremism. In practical terms, the regime has an effect in specific instances. Although this is difficult to measure, the regime may act as a deterrent’.34 In sum, it is difficult to avoid the conclusion any achievements of the UN lists are limited. In the words of the UN’s monitoring team in 2012, the: ‘Al-Qaida sanctions will not end the threat posed by Al-Qaida and its affiliates’.35 In practical terms, the lists have worked and will work in specific instances. They provided a checklist of names that produced a limited amount of assets especially at the start of the ‘war on terror’ and immediately after the listing of new associates, but overall their main role is symbolic.

Assessment of CTF criminal law As for the chapter’s attempt to assess the benefits of CTF laws, here too there are problems 29

30

31

32 33 34 35 242

ASSMT ‘Third Report of the Analytical Support and Sanctions Monitoring Team, submitted pursuant to resolution 2082 (2012) concerning the Taliban and other associated individuals and entities constituting a threat to the peace, stability and security of Afghanistan’ (2013) S/2013/656 13. ASSMT ‘First Report of the Analytical Support and Sanctions Implementation Monitoring Team submitted pursuant to resolution 1988 (2011) concerning the Taliban and associated individuals and entities’ (2012) S/2012/683 13 (emphasis added). ASSMT ‘Eleventh Report of the Analytical Support and Sanctions Implementation Monitoring Team established pursuant to Security Council resolution 1526 (2004) and extended by resolution 1904 (2009) concerning Al-Qaida and the Taliban’ (2011) S/2011/245, 9. Ibid 9. Ibid 18. ASSMT ‘Fourteenth Report’ (n 25) 15 (emphasis added). Ibid 15.

The global system of counter-terrorist finance

because of the partial nature and amount of available data. As the UK’s Independent Reviewer of Terrorism Legislation recently put it, ‘the limitations in the published statistics make it difficult to judge how frequently the fundraising offences are used’.36 However, academics have attempted to identify the benefits of the laws based upon the partially available open source material. For example, in 2010, Jonsson attempted to assess ‘the most obvious indicator – [the] number of convictions on terrorist financing charges’, concluding that: ‘the achievements thus far are modest.37 In the same year, Levi too noted the: ‘low prosecution of financiers of terrorism.’38 More recently, Bures suggested that ‘there have been only few convictions thus far for violations of CTF laws’.39 Similarly, in 2013, the UK’s Independent Reviewer of Terrorism Legislation reported that the published figures continue to indicate a ‘limited and diminishing use being made of the fundraising offences’ in mainland Britain.40 The official figures, which unfortunately only record convictions according to the principal offence, show sixteen convictions for CTF offences under sections 15 to 18 of the Terrorism Act 2000. They constitute 7.5 per cent of the 213 convicted for terrorism offences in Britain between 11 September 2001 and 31 December 2013.41 By contrast, CTF laws have apparently produced a relatively higher percentage of convictions in the US. This suggestion arises because Human Rights Watch and Columbia University Law School’s Human Rights Institute suggest that 18 per cent (168) of the 917 federal terrorist convictions of 494 individuals in the US between 11 September 2001 and 31 December 2011 have been for providing ‘material support’ for terrorists contrary to 18 US Code sections 2339A and 2339B. Providing financing is one of the many ways material support can be provided under US law. Unfortunately, it is impossible to disaggregate those that are purely financial from the statistics from those that involve other forms of support.42 Whatever one thinks about the importance of such partial statistics, Jonsson rightly suggests that ‘[m]erely studying convictions in court and asset forfeiture vastly underestimates the achievements’,43 subject to a quibble about Jonsson’s use of the term ‘vastly’. This is because CTF offences, and the investigatory powers that accompany them, can provide a means to ends other than convictions for terrorist finance offences. Often they enable investigators to identify other information, which can result in an individual being charged with a different terrorist offence, or indeed a non-terrorist offence, in an attempt to disrupt a network or group. The

36 37 38 39 40

41

42

43

D Anderson, TheTerrorism Acts In 2012 Report Of The Independent Reviewer OnT he Operation Of The Terrorism Act 2000 And Part 1 Of The Terrorism Act 2006 (Home Office, London, 2013) 71. Jonsson (n 15) 18. Levi (n 18) 658. Bures (n 22) 726. At least as a principal charge on the indictment which is the format in which the statistics are published. D Anderson, The Terrorism Acts In 2012 Report Of The Independent Reviewer On The Operation of The Terrorism Act 2000 And Part 1 Of The Terrorism Act 2006 (Home Office, London, 2013) 71. The offence recorded (excluding convictions under Schedule 7 of the Terrorism Act 2000) is the principal offence for which the offender is convicted and given the highest penalty: Home Office, Operation of police powers under the Terrorism Act 2000 and subsequent legislation: arrests, outcomes and stops and searches, quarterly update to 31 December 2013, (London, 2014) Table A.08a. For uses of the offence, see R Chesney,‘Federal Prosecution of Terrorism-Related Cases: Conviction and Sentencing Data in Light of the ‘Soft Sentence’ and ‘Data Reliability’ and Critiques’ (2007) 11 Lewis & Clark Law Review 851; JJ Ward, ‘The root of all evil’ (2008–2009) 84 Notre Dame Law Review 471; Human Rights Watch, Illusion of Justice: Human Rights Abuses in US Terrorism Prosecutions (Human Rights Watch, New York, 2014). Jonsson (n 15) 18. 243

Peter Sproat

offences and investigatory powers are not simply used to recreate events that have happened and to prosecute people for such offences; they are also used in a pro-active way – for intelligence purposes. They enable investigators to forgo the freezing of assets or the arrest of terrorist suspects in order to follow the money in the hope the trail will lead to a better understanding or ‘blueprint’ of each terrorist network. As the 9/11 Commission put it in 2003 in a comment that also shows the limitation of national lists, the US government must ‘[e]xpect less from trying to dry up terrorist money and more from following the money for intelligence, as a tool to hunt terrorists, understand their networks, and disrupt their operations’.44

Assessment of CTF reporting regimes As for the achievements of the reporting regimes, here too, there are little publically available data, but once again it shows reporting regimes have provided information that is useful to those investigating terrorism in Western jurisdictions. Jonsson, for example, cites the claim given by John Pistole, deputy director of FBI, at the American Bankers’ Association’s Money Laundering Enforcement Conference on 22 October 2007, that ‘in a sample of 500 terrorist investigations, 42 per cent of the cases had information from STRs included in the case file’.45 More recently, the FATF suggested that ‘FIU and other financial information’ was present in 49 per cent of its 102 case studies of terrorist abuse of non-profit organisations.46 Nevertheless, here is the place to remind the reader of Jonsson’s warning that ‘[s]uch self-evaluations obviously need to be taken cautiously and are close to impossible to verify’.47 However, for those who would advocate the reporting regimes, the main factor is surely the degree to which they identify new suspects – so-called ‘cleanskins’ – rather than simply add information to an existing lead. This is because, without success in this role, a reporting regime loses its raison d’etre in that the authorities could obtain information on existing suspects by other means, such as approaching the financial sector with list of names (or addresses, emails, telephone numbers) they would like to know more about.

44

45

46

47 244

The 9/11 Commission, Final Report of the National Commission on Terrorist Attacks Upon the United States Executive Summary (Washington DC, 2004). Available at: www.9-11commission.gov/ report/911Report_Exec.htm accessed 24 February 2015, 18. Jonsson (n 15) 19. He also claims that the US Treasury Department has vigorously defended the Terrorist Finance Tracking Program, which taps SWIFT data on interbank transactions, pointing to some 1,550 leads shared with EU countries. The Undersecretary for Terrorism and Financial Intelligence, Stuart Leavey, stated on 9 July 2010 that data from the program had provided support to Norway in its arrest of three individuals suspected of plotting an attack against the country: ‘US: anti-terror program leads to arrests’ United Press International, 10 July 2010;‘The Terrorist Financing Tracking Program: Questions and Answers,’ press release, US Treasury Department, 24 June 2010. See further Joint Report from the Commission and the US Treasury Department regarding the value of TFTP Provided Data pursuant to Article 6 (6) of the Agreement between the European Union and the United States of America on the processing and transfer of Financial Messaging Data from the European Union to the United States for the purposes of the Terrorist Finance Tracking Program (COM(2013) 843 final, 2013). Its category ‘FIU financial reports’ included not just suspicious transactions but also cross-border currency transactions, large cash transactions, electronic funds transfers, and ‘FIU financial intelligence analysis’: Figure 4.1: Methods of Detection—Sources and Types of Information in Financial Action Task Force Report, Risk of Terrorist Abuse in Non-Profit Organisations (FATF, Paris 2014) 49. The 102 case studies were submitted by 14 FATF member states in Europe, North America,Africa, the Middle East, South East Asia, and Oceania. Additionally, case studies originated from different agencies, such as law enforcement, intelligence, and regulatory agencies: 15. Jonsson (n 15) 19.

The global system of counter-terrorist finance

The provision of information on existing targets should be much easier than identifying new suspects, but even this is not always so straightforward. For example, in 2011 the UN monitoring team declared it knew of: ‘virtually no cases where suspicious transaction reports have led to prosecutions or even investigations of Al-Qaida or Taliban related criminality’48 (although this did not stop it insisting ‘customer due diligence measures have yielded some positive results in dissuading Al-Qa’ida and Taliban financiers from abusing the financial systems’).49 As for identifying new suspects, Jonsson suggested: ‘financial intelligence has also allegedly helped prevent terrorist attacks such as the 2006 airport plot in the United Kingdom’.50 A recent review of the literature by the Transnational NPO Working Group of FATF provides evidence on a larger scale. It suggested that ‘Financial Intelligence Unit investigations or reports from banks’ were responsible for the discovery of some of the 66 abuses of NPOs for terrorist purposes the literature review had identified. No explanation as to the difference between the two phrases was provided so we do not know how many originated from investigations and reports from banks respectively or whether all of the former were the result of the latter. Elsewhere, the Working Group suggested that ‘[f]inancial reporting and FIU investigation’ was the ‘method of discovery’ for 18 of the cases, or 58 per cent of the 31 cases that provided information about how the abuse was uncovered.51 Unfortunately, the report does not provide enough detail for this claim to be checked.

Conclusions As for an overall assessment and conclusion, there is little doubt that the global CTF system has meant, in the words of a US Secretary of the Treasury: Raising and moving money is now harder, costlier, and riskier for al-Qaida and likeminded terrorist groups. We have frozen and seized terrorist assets, exposed and dismantled known channels of funding, deterred donors, arrested key facilitators, and built higher hurdles in the international financial system to prevent abuse by terrorists.52 This outcome is surely no surprise given the scale of the asset freezing lists, CTF laws, and reporting requirements. The important questions for politicians and policy makers are: to what extent does each of these objectives happen; to what extent have the lists, laws, and reporting regimes contributed to the prevention and detection of terrorist finance; and could similar or better results be achieved by other means?

48

49 50 51

52

ASSMT ‘Eleventh Report (n 31) 19 (emphasis added). Despite this, the team then suggested that ‘suspicious transaction reports remain important and should extend beyond the financial sector’ (ibid). Ibid 18. Jonsson (n 15) 19. It stated: ‘The review of case studies further identified various methods through which terrorist abuse of NPOs was discovered. In the 31 cases that provided information about how the abuse was uncovered, a large majority were via Financial Intelligence Unit investigations or reports from banks’. Transnational NPO Working Group on FATF Recommendations: Financial Action Task Force Typology Review (Transnational NPO Working Group on FATF, Paris 2014) 10. The slightly different phrase ‘Financial reporting and FIU investigation’ is found in the untitled table on 11. J Snow, ‘About this Issue’ The Global War On Terrorist Finance edition, USA Economic Perspectives (September 2004 US Department of State/Bureau of international Information Programs) 1. 245

Peter Sproat

From the limited information available, it appears the Al Qa’ida or the Taliban sanctions lists have been a disappointment and are falling into disrepute because of amounts frozen are neither impressive nor increasing. There are also criticisms about unfair processes, and breaches of privacy and property rights beyond this chapter.53 The lists may have had some preventative effect especially on Al Qa’ida, but they have not had a great impact upon the income for the Taliban, which even the UN monitoring team acknowledges is increasing. The retort of many securitising supporters is to blame lax actors in the system and to demand better compliance. An example of this is the 1267 Committee’s expressed ‘disappointment at this apparent lack of impact’ as a result of which it asked its monitoring team ‘to provide examples of non-compliance’. Unfortunately for this UN Committee, its monitoring team ‘found it difficult to do so’ for ‘[m]ost Member States have some mechanisms in place to comply’ with the sanctions measures. Instead the UN monitoring team held the view that instances of non-compliance or non-implementation ‘rarely indicate a State’s political unwillingness to comply or a deliberate decision not to comply’.54 There are truly some problems with compliance, but ‘those who fail to comply generally do so because of lack of capacity, not lack of will’.55 Moreover, it is suggested that greater efforts will not overcome the inherent problems with the lists and associated reporting regimes. The first reason is it is difficult to spot assets in the global financial system once individuals and entities know they are listed or when they gain much support within cash-intensive societies, a fact acknowledged by the UN monitoring team, which states in detail: Anti-money-laundering and countering terrorist financing assessments have shown that most Member States have technical, financial and human resource capacity constraints. Member States with largely cash-based economies where most economic activity takes place outside the formal sector face particular difficulties. This is especially true in subSaharan Africa, where the number of banked households is estimated at only 12 per cent.56 Next, ‘success’ is even more difficult in areas such as Afghanistan where the West’s terrorist is another man’s defender of the faith, freedom fighter, and opium farmer’s free-market middleman. Reporting regimes do play a role in applying the lists, and the former have also provided some useful information to those investigating terrorist suspects especially within developed and relatively ‘cash-light’ economies of the West. Generally speaking, their main use appears to be adding additional information to existing investigations rather than identifying new suspects. That said, there is strong evidence that CTF has helped discover new abuses by NPOs for

53

54

55 56

246

See further C Eckes, EU Counter-Terrorist Policies and Fundamental Rights: The Case of Individual Sanctions (Oxford University Press, Oxford, 2009); CC Murphy, EU Counter-Terrorism Law (Hart, Oxford, 2013) ch 5; I Cameron (ed.), EU Sanctions (Intersentia, Cambridge, 2013); K Clubb and C Walker,‘Heroic or hapless? The legal reform of counter-terrorism financial sanctions regimes in the European Union’ in F Fabbrini and Jackson (eds), Constitutionalism Across Borders in the Struggle Against Terrorism (Elgar, Cheltenham, 2015). ASSMT ‘Thirteenth Report of the Analytical Support and Sanctions Implementation Monitoring Team submitted pursuant to resolution 1989 (2011) concerning Al-Qaida and associated individuals and entities’ (S/2012/968, 2012) 12. Ibid 12. ASSMT ‘Twelfth Report of the Analytical Support and Sanctions Implementation Monitoring Team, submitted pursuant to resolution 1989 (2011) concerning Al-Qaida and associated individuals and entities’ (2012) S/2012/729 17.

The global system of counter-terrorist finance

terrorist purposes. However, here one has to wonder whether this is because the actions of NPOs – especially Islamic ones and those working in areas where designated groups are strong – are placed under far more scrutiny by Western authorities and financial institutions than many other areas of their developed economies. The latter fact is evident in the FATF’s Special Recommendation VIII, which self-fulfillingly declares NPOs are ‘particularly vulnerable’ to abuse by terrorists. Outwith such circumstances, reporting regimes in the West will continue to struggle to identify new terrorist suspects for many reasons. The main one, as many authors have pointed out, is that they were not designed to identify terrorist finance: they were originally created to identify the placement of cash into banks by those working for drug dealers. It is relatively easy to identify people who have ‘unusual’ cash deposits or even electronic transfers placed into their accounts when CDD (meaning know your customer and the nature of their work) has been performed. It is much more difficult to identify otherwise legitimate transactions that will be used to fund terrorism in the future. This distinction is important because terrorist organisations receive considerable support and funding from and through legitimate sources including ‘charities, businesses, and in many cases through self-funding from employment, savings, and social welfare payments’. According to the FATF, the problem with this situation is these are ‘methods that would not otherwise raise concerns because they appear legitimate’.57 Thus, the reporting regimes help identify terrorist offences mainly if the authorities already suspect the individual or entity, or as the FATF once put it ‘[c]ase studies highlight the value of intelligence in determining whether seemingly legitimate activity is being used to fund terrorism’.58 Another reason reporting regimes will not provide total protection is that the amounts of money needed to mount small attacks can, in the words of the FATF: ‘be raised by individual terrorists and their support networks using savings, access to credit or the proceeds of businesses under their control’.59 One of the case studies they use to illustrate the point is the 7 July 2005 attacks on the London transport system. They cite the official report as saying the group appears to have raised the necessary cash for the overseas training trips, bomb-making equipment, rent, and car hire: ‘by methods that would be extremely difficult to identify as related to terrorism or other serious criminality’. Interestingly, the champions of reporting regimes draw a different conclusion.60 More recently, the FATF highlighted a ‘slow but noticeable growth’ in localised terrorist actors, by which they meant citizens or legal residents who engage in terrorist activities within or from their home country – sometimes influenced by foreign actors and those who have not been actively recruited by a terrorist organisation but who engage in terrorist activity on their own initiative.61 The importance of this trend is that financing along with recruitment, other logistical support, and attacks ‘can occur locally with minimal and indirect interaction with

57 58 59 60

61

Financial Action Task Force, Terrorist Financing (FATF, Paris, 2008) 34. Ibid. Ibid 14. Ibid 14 citing UK Home Office, Report of the Official Account of the Bombings in London on 7th July 2005 (HC 1087, 2005–06). The FATF noted that Terrorist B ‘made a number of purchases with cheques (which subsequently bounced) in the weeks before 7 July. Bank investigators visited his house on the day after the bombings’. Another interpretation is that even if they were visiting because they suspected terrorism rather than criminal (fraudulently bouncing cheques), it shows the system was too slow. Financial Action Task Force, Risk of Terrorist Abuse in Non-Profit Organisations (FATF, Paris, 2014) 26–7. 247

Peter Sproat

formal organisations’.62 The inference to be drawn from FATF’s words is that this means such people are far more difficult to discover. That said, one would be mistaken to think that the reporting regimes always shield the West from terrorism funded by acquisitive criminal activities either. Even though the reporting regimes were set up to identify the placement of the proceeds of crime, the authorities in the West are not particularly successful at investigating such activities. Many simply do not have the capacity to deal with the ever-increasing number of non-terrorism related SARs and white-collar crimes. As Levi put it,‘in the West – payment card fraud, selling counterfeit goods, etc. – would not normally be considered a priority by either reactive or intelligence-led policing’.63 Put simply, even if those in the regulated sector highlighted and reported suspected criminality the chances are such a report would not be examined in the same way as a ‘suspected terrorism’ SAR, unless there were other factors present which suggested it maybe terrorism related such as it involved an NPO, a transfer of monies to a ‘high risk area’, or named someone already under suspicion. In this regard, the authorities do attempt to help the regulated sector look for suspicious activities that might indicate a terrorist link. For example, the FATF have encouraged reporting of large cash, electronic transfers, and cross-border currency transactions, although it may not be immediately apparent to financial institutions these ‘could provide law enforcement with information on terrorist activity’.64 FIUs also issue general ‘alerts’ or ‘indicators’ that suggest a particular transaction presents a risk of terrorist finance. However, as the FATF itself noted,‘[t]he diversity and multifaceted nature of terrorists’ financial activity makes this challenging.’65 Moreover, in some countries there is a reluctance to provide any more indicators to the regulated sector for fear that the ‘red flags’ may leak out from the regulated sector and aid those involved in the funding of terrorist acts. Finally, this chapter considers the use of CTF offences and accompanying investigatory powers. These are undoubtedly necessary and help produce the convictions for CTF offences, as well as other terrorist and non-terrorist offences. They also make it easier for the authorities to follow the money trail and identify the structures of terrorist networks. The UN has attempted to encouraged members to create such laws, if not harmonise them, in line with the ICSFT. As already noted, the latter commits states to criminalise the wilful provision and collection of funds with the intention that they are to be used to carry out a terrorist act. Countries that have worded their CTF laws in this way include France and Japan. Other countries have gone further and have replaced terrorist act with a terrorist group (proscription), and in some, such as the UK, prosecutors need only to show the provider had ‘reasonable cause to suspect’ the finances may be used for the benefit of a listed group.66 Some countries, such as the US, are not too concerned with the notion of benefit. There, recent jurisprudence has indicated that any assistance to a designated terrorist group – apart from the statutorily exempt medicine (but not medical treatment) and religious materials – will be seen as furthering that group’s terrorist activities, relying on the notion of fungibility of resources on the argument that that otherwise ‘benevolent’ aid to a terrorist organisation frees up other resources to be put to violent ends.67

62 63 64 65 66 67 248

Ibid 27. Levi (n 18) 658. Financial Action Task Force, Terrorist Financing (n 57) 28. Ibid 28. Mackintosh and Duplat (n 7) 45–6. Ibid 45. See further US v Holy Land Foundation 722 F 3d 677 (2013).

The global system of counter-terrorist finance

In terms of achievements, it appears that the more such laws move away from traditional liberal notions of intent, knowledge, and acts and towards stricter liability and fungibility, the easier it is to convict people albeit at a cost to the values of a liberal society. The latter constitute part of the disadvantages side of a cost–benefit analysis that politicians should be interested in. The alleged disadvantages include: considerable process costs,68 intrusions into privacy,69 the stigmatisation of practices and communities,70 the discouragement of humanitarian aid,71 a negative impact upon civil society more generally,72 sending remittances

68 69

70

71

72

KPMG estimated that the ‘annual expenditure’ on AML/CTF ‘is likely to exceed US$10bn in the next couple of years’: KPMG, Global Anti-Money Laundering Survey 2014 (Amsterdam, 2014) 2. Automated data-mining of clients’ financial transactions is undertaken by financial companies within the regulated sector without necessarily a basis in reasonable suspicion: Terrorism Act 2000, s 21A. Unlike many of the other counter-terrorist policies that are said to have an impact on an individual’s privacy, the surveillance of financial transactions is initially undertaken and paid for by the private sector. See, for example, N Ryder and U Turksen, ‘Islamophobia or an important weapon? An analysis of the US financial war on terrorism’ (2009) 10(4) Journal of Banking Regulation 307. There is little doubt the FATF’s decisions to highlight the work of NGOs, and hawala bankers have meant their practices are subject to more intensive scrutiny than many other areas of the regulated sector. Similarly, appearing to be Muslim is one of the many variables taken into consideration by some of the regulated sector along with various other factors in producing data-mining logarithms. This raises many legal and ethical issues, but such decisions cannot be equated with simply viewing all Muslims in the West as a ‘suspect community’. Indeed if the regulated sector truly viewed the Muslim population as suspect the number of Muslims complaining that their bank accounts had been closed for no apparent reason would be far greater than the small number currently reported – the number in the UK alone would be in the millions. For example, in the BBC ‘File on 4’ radio broadcast, ‘A deadly dilemma’ (1 July 2014) the UN’s Under-Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator Valerie Amos suggested counter-terrorism laws slowed down and sometimes stopped the provision of humanitarian aid in Syria. Note also the FATF Best Practices document, Combating the Abuse of Non-Profit organisations (Recommendation 8) Limited update to reflect the revised FATF Recommendations and the need to protect NPOs’ legitimate activities (FATF, Paris, 2013). The regulated sector is not only influenced by the official lists but also the labels attached to individuals and organisations by newspapers and unofficial list-producing companies from the lucrative compliance industry such as Accelus World-Check, available at: http://accelus.thomsonreuters.com/products/world-check, accessed 11 November 2014. See further, E van der Does de Willebois, Nonprofit Organizations and the Combating of Terrorism Financing: A Proportionate Response (World Bank, Washington DC, 2009); American Civil Liberties Union, Blocking Faith, Freezing Charity (ACLU, New York, 2009); ZN Jamal, Charitable Giving Among Muslim Americans: ISPU Ten Years after 9/11 (Institute for Social Policy and Understanding Policy Brief #46, Washington DC, 2011); Center on Global Counterterrorism Cooperation, To Protect and Prevent: Outcomes of a Global Dialogue to Counter Terrorist Abuse of the Nonprofit Sector (Goshen, 2013). See (n 71) and also: National Council for Voluntary Organisations/Economic and Social Research Council, Counter-terrorism and civil society: What are the effects of the ‘War on Terror’ and counter-terrorism measures on civil society? (London, 2009); M Tiwana and N Belay, Civil Society: The Clampdown is Real. Global Trends 2009–2010 (Civicus, Johannesburg, 2010); K Wall, Addressing Violent Extremism: Creating Spaces For Civil Society Engagement Report of the Global Civil Society Conference (The Civil Society Network for Human Security, The Hague, 2012); Observatory For The Protection Of Human Rights, Violations of the right of NGOs to funding: from harassment to criminalisation (Geneva, 2013). 249

Peter Sproat

and economic development,73 and undermining the goals of Western counter-terrorism.74 Some of these factors certainly detract from any sustained achievements of CTF to varying degrees but an assessment of these downsides must await another paper.75

73

74

75 250

The two issues are often linked see W Vlcek, ‘Development vs. terrorism: Money transfers and EU financial regulations in the UK’ (2007) 10 British Journal of Politics and International Relations 286; I Warde, The price of fear: The truth behind the financial war on terror (University of California Press, Berkeley, 2007); J Cockayne and L Shetret, Capitalizing on Trust Harnessing Somali Remittances for Counterterrorism, Human Rights and State Building (Center on Global Counter-terrorism Cooperation, Goshen, 2012); M de Goede, Speculative security: The politics of pursuing terrorist money (University of Minnesota Press, Minneapolis, 2012). O Frazer,‘Friend Not Foe’ (2013) 1/2 Policy Perspectives October 2013 1. It is implied in the work of Transnational NPO Working Group on FATF, Recommendations: Financial Action Task Force Typology Review (Washington DC, 2014) See also Chapter 6 (Fabbrini) in this book.

17 Aliens and counter-terrorism Elspeth Guild

Introduction The treatment of aliens when it comes to states’ counter-terrorism activities inevitably focuses on those areas of law where states are entitled to differentiate between citizens and aliens.1 National constitutions may permit quite substantial differences in treatment between citizens and aliens.2 Thus, while citizens can claim constitutional rights where confronted with state allegations of their involvement in terrorist activities, aliens can be defined out of the group entitled to such rights. When the rights of aliens are at stake, and national constitutions do not provide for equality of treatment with citizens in the relevant field, regard must be paid to international treaty commitments. The first step is to examine what limitations international commitments place on the treatment of aliens with specific reference to situations where there are allegations of terrorism against them and where they are found. The second step will be to look at how these commitments are applied in practice in cases where there are allegations of terrorism against aliens. For the purposes of this chapter, the most important differences, which are permitted in international law, in treatment between citizens and aliens are prohibitions on entry (exclusion orders),3 expulsion decisions, and administrative detention to prevent unlawful entry or pending expulsion. While states are prohibited from expelling their own citizens,4 they have a fairly free hand when it comes to aliens. Although lawfully present, aliens may be entitled to procedural rights where state authorities seek to withdraw their legal status: they can always be expelled.5 Because aliens can be prevented from entering a sovereign state and expelled from it, states are permitted to exercise administrative detention for the purposes of that expulsion (or at least they have claimed that right).6 In respect of these state actions, international treaty provisions have been widely deployed to counter state action, as will be described shortly. 1 2 3 4 5 6

See C Walker, ‘The treatment of foreign terror suspects’ (2007) 70 Modern Law Review 427. D Cole, ‘Legal Affairs: Dreyfus, Guantánamo, and the foundation of the rule of law’ (2012) 29 Touro Law Review 43. Exclusion orders also arose under the Prevention of Terrorism (Temporary Provisions) Acts 1974–1989 (now repealed) to restrict entry of British and Irish citizens into Great Britain. Art 12(4) ICCPR (UNTS vol 999, 171). Art 13 ICCPR. Arts 9 and 12(3) ICCPR; D Kanstroom, Deportation nation: Outsiders in American history (Harvard University Press, Cambridge, 2007); D Wilsher, Immigration detention: law, history, politics (Cambridge University Press, Cambridge, 2011). 251

Elspeth Guild

A second set of fields where differences appear between the treatment of citizens and aliens is around social and employment rights (access to work and social benefits) and family reunification particularly where the family members are also aliens. Here, international treaty commitments are less in evidence in respect of terrorism allegations. The International Covenant on Economic Social and Cultural Rights7 covers the fields in question, and Article 2(2) prohibits discrimination inter alia on the basis of national origin. In relation to its application to aliens, the Treaty Body responsible for the application of this Covenant, the Committee on Economic, Cultural and Social Rights, issued General Comment No 20 on 2 July 2009, reiterating all the treaty sources of the non-discrimination obligation in respect of social and economic rights and clarifying the application of Article 2(2) on non-discrimination including as regards aliens.8 The UN Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (the ‘Migrant Workers Convention’)9 has entered into force and, notwithstanding substantial resistance from some countries (no migrant-receiving state in Western Europe or North America has ratified), has been ratified by forty-seven countries. It contains protections in the social fields for aliens, though there are substantial exceptions on the basis of national security (such as Article 8 on the right to leave). Family reunion and family life and social and economic rights are also areas where there are frequently differences of treatment between aliens and citizens. Family life is also a ground of legal dispute where one member of the family, an alien, is accused of engagement in terrorist activities and consequently threatened with expulsion. The right to respect for private and family life is the only right, which being both civil and social, will be examined in this chapter in the context of aliens and anti- and counter-terrorism measures. In the area of counter-terrorism measures, it is the first set of differences that have been the subject of legislation in a variety of liberal democracies and the site of legal challenges. For the moment, the second set of fields where differences of treatment (in social, economic, and cultural fields) appear less used in counter-terrorism legislation.

The International framework on non-refoulement – an international commitment that interferes with terrorism-related treatment of aliens? This next section will examine the international instruments that place limits on states’ sovereign powers in respect of aliens to exclude, expel, extradite, and hold them in administrative detention for the purpose of achieving one of these aims. As regards the first set of differences outlined above – those around entry onto the territory, residence, detention, and departure – the main international obligation that causes friction with state counter-terrorism legislation is the prohibition on refoulement. This obligation, which takes its first modern form in Article 33 Refugee Convention, states as follows: 1

No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

7 8

United Nations Treaty Series, vol 993, 3. http://tbinternet.ohchr.org/_layouts/treatybodyexternal/TBSearch.aspx?Lang=en&Treaty ID=9&DocTypeID=11 accessed 3 January 2014. United NationsTreaty Series, vol 2220, 3; Doc A/RES/45/158.

9 252

Aliens and counter-terrorism

2

The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.10

Numerous academic experts have very carefully examined the scope of the duty not to refoule an individual.11 Basically, it requires states first to determine whether a person is a refugee in accordance with the Convention before preventing his or her entry onto the territory or expelling the person back to the country of origin. Even where state authorities determine that a person is a refugee, Article 33(2) of the Refugee Convention permits a state to expel a refugee notwithstanding the prohibition on non-refoulement where he or she has been determined, on reasonable grounds, to be a danger to security or who has been convicted of a serious crime.12 A conviction for terrorist activities under national law is generally accepted as falling within this category.13 However, states are also permitted to exclude people from refugee status (and indeed determination) under Article 1F14 on the basis: (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) he has been guilty of acts contrary to the purposes and principles of the United Nations. The Refugee Convention, however, does not stand alone as an obstacle to the prevention of arrival or the prohibition on expulsion of aliens even on grounds of national security related to terrorist threats. The Convention against Torture15 also prohibits the return of anyone to a country where there are substantial grounds for believing that the person would be in danger of being tortured (Article 3(1)).16 This prohibition is absolute; it does not allow exceptions. Of course its scope is different from that of the Refugee Convention in that it only protects those at risk of torture, not persecution, and there is no need under the Convention against Torture for a nexus with a ground as in the Refugee Convention where the persecution must be in relation to race, religion, nationality, membership of a social group, or political opinion. Insofar as there is a nexus in relation to the refoulement prohibition in the Convention against Torture, 10 11

12 13

14 15 16

UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol 189, 137. GS Goodwin-Gill and J McAdam, The refugee in international law (3rd edn, Clarendon Press, Oxford, 2007); A Zimmermann, J Dörschner, and F Machts (eds), The 1951 Convention relating to the status of refugees and its 1967 protocol: A commentary (Oxford University Press, Oxford, 2011). A Edwards and C Ferstman (eds), Human security and non-citizens: law, policy and international affairs (Cambridge University Press, Cambridge, 2010). E Guild, ‘Examining the European Geography of Refugee Protection Exclusions, Limitations and Exceptions from the 1967 Protocol to the Present’ (Nijmegen Migration Law Working Papers Series 2012). See especially SS Juss,‘Terrorism and the Exclusion of Refugee Status in the UK’ (2012) 17 Journal of Conflict and Security Law 465. UN Convention against torture and other inhuman and degrading treatment or punishment 1984 (United Nations,Treaty Series, vol 1465) 85. M Nowak, E McArthur, and K Buchinger, The United Nations Convention against torture: a commentary (Oxford University Press, Oxford, 2008). 253

Elspeth Guild

it is incorporated into the definition of torture itself.17 Unlike the Refugee Convention, the Convention against Torture includes provision for the Treaty Body (the Committee against Torture) to receive complaints against signatory states that have expressly accepted this jurisdiction (Article 20). Many of the complaints coming before the Committee are in respect of aliens who have sought asylum in a signatory state but whose application has been rejected, including aliens whom states are seeking to expel on grounds of their terrorist activities. Among the most famous such cases was one against Sweden in respect of the extraordinary rendition of two Egyptian asylum seekers from Sweden to Egypt carried out by the CIA with the complicity of the Swedish authorities.18 The ICCPR also contains a prohibition on torture at Article 7: ‘No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.’ The Human Rights Committee charged with receiving complaints including from individuals (where the state has ratified the Additional Protocol to the ICCPR) regarding the correct application of the Covenant by state authorities has interpreted this article as also prohibiting refoulement of an alien to a country where he or she would be at risk of torture. Once again, among the most famous decisions of the Human Rights Committee on such a case was in respect of an extraordinary rendition carried out by the CIA with the complicity of the Swedish authorities of (another) Egyptian asylum seeker taking him to Egypt.19 Once again, the reason for the treatment of the individual was his alleged activities and sympathies were designated as terrorist by some state authorities.20 The regional human rights treaties also include prohibitions on torture and return to torture. The treaty bodies established to receive complaints in respect of signatory states’ application of their obligations have also been called upon to determine cases of aliens facing prohibitions on entry and expulsion. Thus, while constitutional protections may not cover aliens depending on the configuration and interpretation of their scope, international refugee and human rights law does provide long stops in respect of the treatment of aliens when state authorities accuse them of engagement in terrorism contrary to national (or international) security. This safeguard is particularly important in those areas where states are entitled, according to their claims to state sovereignty, to treat aliens differently from citizens. As mentioned above, the main areas of legal contestation between states and aliens in the field of counter-terrorism measures, which engage the difference of treatment possible in respect of aliens when compared with citizens, are regarding 17

18 19 20

254

Article 1: ‘For the purposes of this Convention, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. 2.This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.’ Ahmed Agiza and Mohammed al-Zari v Sweden Communication No 233/2003, UN Doc CAT/C/34/D/233/2003 (2005). Alzery v Sweden, Communication No 1416/2005, CCPR/C/88/D/1416/2005, 10 November 2006. For a fuller discussion of these two opinions, see: E Guild, Security and migration in the 21st Century (Polity, Cambridge, 2009).

Aliens and counter-terrorism

prohibition on entry/admission and expulsion (measures only possibly in respected of an alien) and, to a lesser extent, extradition (where states are not required to include prohibitions on the extradition of their own nationals though many do)21 thus resulting in a difference of treatment between citizens and aliens. Administrative detention in pursuit of prevention of entry or pursuit of expulsion has been a principal area of struggle between state authorities and aliens when questions of terrorism arise. Remedies for aliens in respect of state authorities’ actions in the above cases have been a source of conflict. Numerous states have provided no, limited, or truncated remedies for aliens who seek to challenge their treatment in cases where the state acts on the basis of national security.22 The most extensive jurisprudence from a regional human rights court on aliens, prohibitions on entry, expulsion, or extradition on terrorism grounds come from the ECtHR in its determination of complaints in respect of ECHR.23 This no doubt reflects a variety of concerns in many of the forty-seven countries that participate in the Council of Europe and so are required to accept the jurisdiction of the ECtHR, including in respect of petitions by individuals. The next section will examine the scope and extent of the human rights limitations on states’ sovereign powers to exclude, expel, and detain aliens for these purposes.

Supranational adjudication of state action against aliens on the grounds of terrorism The ECHR is the principal regional human rights treaty applicable to forty-seven countries in Europe. From 1994, all state parties to the Convention24 have been required to accept the mandatory jurisdiction of the ECtHR. The EU, a completely separate European body with a different composition (twenty-eight states in 2014), is in the process of acceding to the ECHR. It has also tied its Charter of Fundamental Rights firmly not only to the ECHR but also to interpretation that the ECtHR gives to it.25 The ECtHR has a long engagement with the human rights compliance of member States’ counter-terrorism legislation and practices. The ‘Troubles’ in Northern Ireland, the Basque independence movement in Spain, actions by the Turkish state against the PPK, and Russian activities in the Caucasus have proved to be substantial sources of dispute and petitions. However, in these cases, the petitioners were primarily nationals of the state against which the petition was brought. Aliens as petitioners before the ECtHR also have a long history, with a landmark decision regarding non-discrimination in family reunification in 1985.26 However, the intersection of human rights, terrorism, and aliens was somewhat longer in arriving. The first step was the interpretation of the prohibition on torture, inhuman and degrading treatment, or punishment in the ECHR (Article 3) as equally applying to situations where a

21

22 23 24 25 26

See European Convention on Extradition (ETS No 24) art 6; Z Deen-Racsmány and R Blekxtoon, ‘The decline of the nationality exception in european extradition?’ (2005) 13 European Journal of Crime, Criminal Law and Criminal Justice 317. See, for example, the (UK) Immigration, Asylum and Nationality Act 2006, s 7. Convention for the Protection of Human Rights and Fundamental Freedoms 1950, ETS 5; 213 UNTS 221. All state parties to the Council of Europe are required to ratify the European Convention on Human Rights. Article 6(3) Treaty on the European Union OJ [2012] C 326, 13; Article 52(3) Charter of Fundamental Rights OJ [2012] C 326, 391. Abdulaziz, Cabales and Balkandali v United Kingdom App No 9214/80, Ser A 94 (1985), 28 May 1985, (1985) 7 EHRR 471. 255

Elspeth Guild

state expels, extradites, or otherwise forces a person to go to a state where there is a substantial risk that he or she will suffer the prohibited treatment. The sending state must know or ought to know of the risk of such treatment contrary to Article 3 of the ECHR. This interpretation took place in a 1989 judgment regarding the extradition of a German national from the UK to the USA to face (non-terrorist related) charges in respect of which the death penalty applied as a potential sentence.27 The ECtHR found that extradition to a procedure that could culminate in the death penalty (and thus the syndrome of death row awaiting execution) was contrary to Article 3. Following that decision, aliens whose asylum applications had been rejected by state authorities began to petition the ECtHR on the basis of a potential violation of Article 3 in the event of their forced return. It is in this context that terrorism as a factor enters the stage.

Expulsion and the prohibition on torture, inhuman, and degrading treatment or punishment: Face to face with national security allegations of terrorist activity In 1996 a turning point came with the decision of the ECtHR in Chahal v UK.28 An exponent of Sikh separatism, Chahal faced expulsion from the UK on grounds of national security. The UK authorities stated that The Home Office is in possession of other information of a confidential nature concerning Chahal. This relates to his activities in the faction of ISYF (International Sikh Youth Federation) in which he has played a leading role; and shows him to have been centrally involved in the organisation, planning and financing of terrorism… Having regard to the above facts and to other information of a confidential nature, the Home Secretary concluded that Chahal’s continued presence in the UK was not conducive to the public good for reasons of national security and other reasons of a political nature, namely the fight against international terrorism.29 The ECtHR found that any forced return of Chahal to his country of origin (India) would constitute a breach of Article 3 ECHR in light of the substantial risk that he would suffer treatment contrary to that provision there. The fact that the UK authorities considered Chahal a threat to national security on the basis of his activities, which the UK authorities termed international terrorism, was irrelevant to the absolute nature of Article 3. Further, the Court found that the remedies available for Chahal in the UK were not in compliance with his right to an effective remedy (Article 13).30 This decision constituted a particularly important turning point in the meaning of the prohibition on torture, inhuman or degrading treatment, or punishment. Not only did it build on early jurisprudence that confirmed the application of the principle enunciated in the Soering decision as applicable to aliens who feared return to a country where there is a substantial risk of torture, or other prohibited treatment,31 but also, with reference to the Convention against 27 28 29 30 31

256

Soering v United Kingdom, App No 14038/88, Ser A 161 (1989), (1989) 11 EHRR 439. App No 22414/93, 1996-V, 15 November 1996, (1997) 23 EHRR 413. European Commission on Human Rights, 1 September 1994, 4 Regarding special court procedures in cases involving allegations of terrorism see Chapter 8 (Dickson) of this book. N Mole and C Meredith, Asylum and the European Convention on Human Rights (Human Rights File No 9, Council of Europe, Strasbourg, 2010).

Aliens and counter-terrorism

Torture, it confirmed the absolute nature of the prohibition on return. It rejected expressly the argument that national security based on the alleged terrorist-related activities of an alien constitutes a different order of threats before which the absolute nature of Article 3 must cede. Not all Council of Europe states were satisfied with the outcome of the Chahal judgment. There was a certain reluctance to accept that a risk of torture or other prohibited treatment can always trump national security. A second challenge to the absolute nature of Article 3 in terms of expulsion came before the ECtHR in 2008.32 Although the ECtHR recognised that the dangers of terrorism must never be underestimated and that states face considerable difficulties in protecting their people from terrorist violence, nonetheless, this cannot call into question the absolute nature of Article 3. So long as there are substantial grounds for believing that there is a real risk of treatment contrary to the provision, the alien cannot be expelled or extradited to the country where the risk arises.33 The fact that an alien may have been convicted on terrorism-related charges in the host country may be an important factor in determining whether his or her expulsion after completion of sentence would be consistent with the ECHR. An Algerian national who was threatened by the French authorities with expulsion to Algeria after having been convicted of being part of a radical Islamist group, which had been preparing a suicide attack on the US embassy in Paris, challenged his proposed expulsion on the basis of the real risk that he would be tortured if sent back to Algeria.34 Once again, the ECtHR held that the only essential factor that must be considered regarding the compatibility of expulsion with Article 3 ECHR is whether there is a real risk of torture or other prohibited treatment in the destination country. Here the ECtHR found that the case was sustained and the expulsion would not be in compliance. Another phenomenon that the ECtHR noted in a decision in 2005 and that, even in 2014, continues to be a matter of concern relates to the persecution and killing of persons of Chechen origin in Russia where they have lodged applications before the Court challenging their treatment on Article 3 grounds.35 This phenomenon constituted a factor, which the Court took into account in finding that the extradition of a Russian of Chechen ethic origin to Russia to face charges that he was a terrorist rebel and had taken part in the Chechen conflict, would be contrary to Article 3. Next, six men, all aliens resident in the UK, were the subject of extradition warrants issued by the US authorities requesting their transfer to the US for the purpose of standing trial on terrorism charges. The men challenged their transfer to the US on the grounds that because of the nature of the charges that the US authorities had laid against them, they would be held in detention at ADX Florence, Colorado, US, otherwise known as a ‘supermax’ prison, where prisoners are held in solitary confinement. Although the Court has in other cases found solitary confinement inconsistent with Article 3, in this case it did not do so. However, it did take the opportunity to clarify the rules around solitary confinement: (a) solitary confinement measures should be ordered only exceptionally and after every precaution has been taken in accordance with published rules; (b) the decision imposing solitary confinement must be based on genuine grounds both ab initio as well as when its duration is extended; (c) the authorities’ decisions 32 33

34 35

Saadi v Italy, App No 37201/06, 28 February 2008, (2008) 47 EHRR 17. G Gentili,‘European Court of Human Rights: An absolute ban on deportation to countries where torture or ill-treatment is a genuine risk’ (2012) 4 Italian Journal of Public Law 169. The Court has also held that it is irrelevant whether the source of the treatment is state or non-state actors (a past example might be the Liberation Tigers of Tamil Eelam [LTTE]). Daoudi v France, App No 19576/08, 3 December 2009. Shamayev and others v Georgia and Russia, App No 36378/02, 12 April 2005. 257

Elspeth Guild

should make it possible to establish that they have carried out an assessment of the situation that takes into account the prisoner’s circumstances, situation and behaviour and must provide substantive reasons in their support. The statement of reasons should be increasingly detailed and compelling as time goes by; (d) a system of regular monitoring of the prisoner’s physical and mental condition should also be put in place in order to ensure that the solitary confinement measures remain appropriate in the circumstances; (e) it is essential that a prisoner should be able to have an independent judicial authority review the merits of and reasons for a prolonged measure of solitary confinement.36 The case of one of the six men, Haroon Rashid Aswat, was separated from the others on account of ill health. In a distinct judgment, the ECtHR found that if Aswat was extradited to the US to be detained at ADX Florence (or any ‘supermax’ prison) such detention would be likely to exacerbate his condition of paranoid schizophrenia and thus would be a violation of Article 3.37 The judgment was based on the severity of his mental illness not on the possible length of detention he might be subject to in the US. One response of a number of state authorities to the absolute nature of Article 3 as articulated by the ECtHR has been to seek ‘diplomatic assurances’ from destination states that they will protect the individual from torture, inhuman or degrading treatment, or punishment. In this context it is worth remembering that the person who is an alien in the country that seeks to expel him or her will (normally) be a citizen of the destination state. These assurances have come under substantial scrutiny. Leaving aside the political problems of securing specific assurances from a country that it will not torture one specific citizen (as opposed to any others), many problems arise as to the efficacy of such assurances.38 A 2012 decision of the ECtHR dealt with the matter of diplomatic assurances in respect of the proposed expulsion of Omar Othman, considered by the sending state (the UK) to be a threat to national security on grounds of his engagement with terrorist violence. Omar Othman, better known to the British public as Abu Qatada, was something of a bête noir of the British government.39 This case reveals much about the UK system of determination and review of expulsion decisions where the individual is suspected of engagement with terrorist violence. What is of interest to this part of this chapter is the evolution of the UK’s efforts to obtain diplomatic assurances so as to largely satisfy the ECtHR’s concerns about Article 3 (its concerns about fair trial provisions will be considered later). The ECtHR found that the diplomatic assurances given by the destination state (Jordan) to the sending state (the UK) were adequate because (a) the agreement between the two Governments was specific and comprehensive; (b) the assurances were given in good faith by a state 36 37 38

39

258

Babar Ahmed and others v UK, App Nos 24027/07, 11949/08, 36742/08, 66911/09, and 67354/09, 10 April 2012. See also (pending) Trabelsi v Belgium App No 140/10. Aswat v UK, App No 17299/12, 16 April 2013, (2014) 58 EHRR 1. G Noll, ‘Diplomatic assurances and the silence of human rights law’ (2006) 7 Melbourne Journal of International Law 104; M Jones, ‘Lies, damned lies and diplomatic assurances’ (2006) 8 European Journal of Migration and Law 9; K Jones, ‘Deportations with assurances: addressing key criticisms’ (2008) 57 International and Comparative Law Quarterly 183; L Skoglund, ‘Diplomatic assurances against torture: An effective strategy?’ (2008) 77 Nordic Journal International Law 319; N Shah, Promises to Keep: Diplomatic Assurances Against Torture in US Terrorism Transfers (Columbia Law School Human Rights Institute, New York, 2010); J Tooze, ‘Deportation with assurances: the approach of the UK courts’ [2010] Public Law 362; M Nowak, ‘Extraordinary rendition, diplomatic assurances and the principle of non-refoulement’ in W Kälin and others International Law, Conflict and Development (Nijhoff, Leiden, 2010). See ‘Abu Qatada deported from UK to stand trial in Jordan’ (BBC News, 7 July 2013). www.bbc.co.uk/news/uk-23213740 accessed 24 February 2015.

Aliens and counter-terrorism

whose bilateral relations with the sending state had, historically, been strong; (c) the assurances had been approved at the highest levels of the destination state, with the express approval and support of the King himself; (d) the assurances also had the approval and support of senior intelligence officials; (e) the alien had such a high profile as to make the destination authorities careful to ensure he was properly treated; (f) any ill-treatment would have serious consequences for the destination state’s relationship with sending state; (g) the assurances would be monitored by an independent human rights organisation in the destination state, which would have full access to the individual in prison.40 This catalogue of criteria against which to test diplomatic assurances has been questioned by some academic authorities as not necessarily satisfactory to ensure the safety of the person being expelled.41 Another state response to the absolute nature of Article 3 has been to seek to prevent the arrival of people who may need asylum from ever arriving on their territory. Some of these extraterritorial activities have also been the subject of judgment by the ECtHR but the cases do not involve allegations of terrorist violence so are beyond the scope of this chapter.

Extraordinary rendition: Kidnapping the alien suspected of terrorist activities and the prohibition on torture, inhuman, and degrading treatment or punishment According to the American Civil Liberties Union (ACLU), the US programme of extraordinary rendition, although in some senses predating the attacks on US targets on 11 September 2001, took specific form after that event.42 The programme involves, according to the ACLU, the transfer of aliens suspected of involvement in terrorism to detention and interrogation in countries where, in the view of the CIA, US and international legal safeguards are not applicable. Such aliens are detained and interrogated either by US personnel at US-run detention facilities outside US sovereign territory (such as the base at Guantánamo Bay, Cuba) or are handed over to foreign agents for interrogation. The Agiza and Azery cases came before two Treaty Bodies regarding activities of this kind.43 The ECtHR has considered two cases of extraordinary rendition. First, in El-Masri v FYR Macedonia,44 El-Masri, a German national of Lebanese origin, travelled by bus from Germany to Macedonia. He was stopped at the Macedonian border on 31 December 2003 by Macedonian border officials and taken to a hotel in Skopje where he was detained and subject to treatment which violated Article 3 for 23 days at which point the officials promised him that he would be returned to Germany. The Macedonian officials then handed him over to CIA officials at Skopje airport where he was subject to Article 3 violations and forcibly taken to Afghanistan where he was subject to further treatment contrary to Article 3, which lasted until 28 May 2004, when he was once again moved (handcuffed and blindfolded with no idea of where he was being taken), this time to Albania where he was released in the mountains. Throughout El-Masri’s detention and ill-treatment, he was asked to admit that he was an Al Qa’ida supporter. The ECtHR held Macedonia in violation of Article 3 both as regards his 40 41

42 43 44

Othman v UK, App No 8139/09, 17 January 2012, (2012) 55 EHRR 1. C Michaelsen, ‘The cross-border transfer of dangerous persons, the risk of torture and diplomatic assurances’ (2012) 3 Cross-Border Law Enforcement: Regional Law Enforcement Cooperation–European, Australian and Asia-Pacific Perspectives 211. Available at: www.aclu.org/national-security/fact-sheet-extraordinary-rendition accessed 5 January 2014. See above n 19 and n 20. App No 39630/09, 13 December 2012. 259

Elspeth Guild

treatment in detention in Macedonia, his treatment at Skopje airport, and his transfer to the US authorities, which resulted in his further subjection of treatment contrary to Article 3. The Court held that in light of the available information at the time regarding the US extraordinary rendition programme, the Macedonian authorities either were, or ought to have been, aware that handing over El-Masri to them would expose him to a substantial risk of torture, thus Macedonia was also in violation of Article 3 in respect of El-Masri’s treatment in Afghanistan. Equally momentous is the case of Al Nashiri v Poland,45 involving an applicant who was suspected of organising the USS Cole bombing in 2000 in Aden harbour and the MV Limburg bombing in the Gulf of Aden in 2002. At the end of October 2002, the applicant was captured in Dubai. By November 2002, he was transferred into the custody of the CIA as a ‘High Value Detainee’ (HVD) and was held in a secret CIA prison in Afghanistan and then in another secret CIA prison in Bangkok. The applicant claimed that he had been transferred to Poland under the HVD programme in December 2002. In June 2003, he was secretly transferred to Rabat, Morocco. In September 2003, he was flown to the US Naval Base in Guantánamo Bay, where he is still detained. During his detention by the CIA, the applicant was deprived of any contact with his family and the outside world and subjected to various forms of ill-treatment (including waterboarding). While at Guantánamo Bay, he has been tried before a Military Commission for the bombings, but the charges have been dismissed.46 The ECtHR found that Poland breached Articles 3, 5, 8, 6, and 13 because it was complicit in the CIA’s programme by allowing the detention to take place and by failing to investigate. At the time of writing, there are three other similar cases pending before the ECtHR.47 One of the difficulties of these cases, but also one of the most shocking from the perspective of rule of law, is that there appears, in most of these cases, to have been no application of any relevant law to the detention of these people, let alone their treatment by officials of a foreign state. The secrecy that surrounded the programme has hindered all the investigations into what has happened to individuals.48

The right to liberty and security of person and the allegation of terrorism Article 5 ECHR guarantees the right to liberty and security of person, subject to situations of lawful restraint set out definitively in the provision. There are no exceptions unless the state seeks to derogate under Article 15 in times of emergency.49 The most common grounds for detention of people permitted by Article 5 is in accordance with criminal justice measures – pre-trial detention and post-trial conviction. These forms of detention are carefully

45 46 47 48

49

260

App No 28761/11, 24 July 2014, (2013) 57 EHRR 25.The sister case is Husayn (Abu Zubaydah) v Poland App No 7511/13, 24 July 2014. US v Al-Nashiri AE 168G I AE 241C, 11 August 2014. Al-Nashiri v Romania App No 33234/12, 1 June 2012; Abu Zubaydah v Lithuania App No 46454/11, 14 July 2011; Nasr and Ghali v Italy App No 44883/09, 6 August 2009. D Weissbrodt and A Bergquist,‘Extraordinary rendition: a human rights analysis’ (2006) 19 Harvard Human Rights Journal 123. But see Intelligence and Security Committee, Rendition (Cm 7171, London 2007); Committee on Legal Affairs and Human Rights, Alleged secret detentions and unlawful inter-state transfers of detainees involving Council of Europe member states (Doc 10957, Council of Europe, Strasbourg 2006), and Secret detentions and illegal transfers of detainees involving Council of Europe member states: second report (Doc 10957, Council of Europe, Strasbourg 2007). E Guild (ed.), War or crime? National legal challenges in Europe to the war in Iraq (Wolf, Nijmegen, 2009).

Aliens and counter-terrorism

circumscribed in Article 5. An exception that is particularly important here is Article 5(1)(f), which permits states to interfere with an individual’s liberty where the objective is ‘the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition’. As discussed above, only aliens can be prevented from entering a country or deported from it. Extradition, however, may apply to both citizens and aliens. Some states appear to favour detention as an important tool in their counter-terrorism arsenal.50 The US authorities use of the detention facilities at Guantánamo Bay, Cuba has been much discussed in this regard.51 The UK authorities also have a tradition of viewing detention as a useful tool in their actions in respect of terrorist violence.52 The UK’s detention policies in respect of suspected terrorists in Northern Ireland have frequently come before the ECtHR and frequently, though not always, been found wanting.53 In these cases, the persons detained were either citizens or treated as if they were citizens of the state detaining them (in the case of those with joint Irish citizenship). The UK authorities did not often seek to use Article 5(1)(f) as the ground for detention.54 After the commencement of the US led ‘War on Terror’ in 2001, the UK authorities used detention without trial of suspected terrorists for the first time since 1975, this time of aliens, initially for preventive purposes as set out in a notice of 18 December 2001 in accordance with Article 15 ECHR. This part of the story, while very important, was effectively terminated in 2005 by the British courts and will not be pursued here.55 Instead, the focus will be on the UK authorities’ deployment of Article 5(1)(f) as the basis for detention of aliens suspected of being terrorists – for the purposes of preventing an unlawful entry or for the purpose of deportation (in this chapter, the term, expulsion, is used in preference to the more UK-centric term, ‘deportation’). The UK House of Lords found the relevant provisions inconsistent with UK law on grounds of disproportionality and discrimination, and the case went to the ECtHR on the issue of violations of Article 5.56 The UK authorities argued that the detention of those aliens suspected of being international terrorists was consistent with Article 5(1)(f ) on the basis that the UK authorities were seeking to expel them but obstacles in the form of the substantial risk of treatment contrary to Article 3 stood in the way (thus their detention albeit potentially indefinite was the alternative). The ECtHR held that the aliens were not being detained in conformity with Article 5(1)(f ) as there was no reasonable prospect that the UK authorities could lawfully expel them, thus the detention was preventive only and could only be saved if the Article 15 derogation was valid. As the national

50 51 52 53

54 55

56

See further Chapters 11 (Vladeck and Walker) and 15 (Kremnizer and Saba) in this book. J Steyn, ‘Guantanamo Bay: The legal black hole’ (2004) International & Comparative Law Quarterly 53 1-15. C Walker, ‘Clamping down on terrorism in the United Kingdom’ (2006) Journal of International Criminal Justice 1137. See, for instance, Fox, Cambell and Hartley v UK, App Nos 12244/86; 12245/86; 12383/86, Ser A 182 (1990), 27 March 1991, (1992) 14 EHRR 108; (Margaret) Murray v United Kingdom, App Nos 14310/88, Ser A 300-A (1994); 28 October 1994, (1995) 19 EHRR 193; (John) Murray v UK, App No 18731/91, 1996-I (1994) 18 EHRR CD1; O’Hara v UK, App Nos 37555/97, 2001-X, (2002) 34 EHRR 32. But see McVeigh, O’Neill, and Evans v United Kingdom, App Nos 8022, 8025, 8027/77; DR 25, 18 March 1981, (1983) 5 EHRR 71 [199], [200]. E Guild, ‘Exceptionalism and transnationalism: UK judicial control of the detention of foreign “international terrorists”’ (2003) 28 Alternatives/Special English Language Issue of Cultures & Conflicts 491; A v Secretary of State for the Home Department [2004] UKHL 56. A v UK, App No 3455/05, 19 February 2009, (2009) 49 EHRR 29. 261

Elspeth Guild

court had already rejected this device, the ECtHR essentially relied on the national court’s assessment. The detention of an alien suspected of having links with Al Qa’ida was later challenged in MS v Belgium.57 Here the Iraqi national had applied for asylum in Belgium and was detained first from October 2007 until Match 2009 in a closed transit centre and then again in such a centre from April 2010 until October 2010. The ECtHR held that to be consistent with Article 5(1)(f) an expulsion procedure must have been pursued by the state authorities in good faith. This is not the case if there is no real prospect that the alien will actually be expelled because there is a real risk of treatment contrary to Article 3 in the destination country and the sole reason for the detention is national security, which is outside the scope of Article 5(1)(f ).

Fair trial and the allegation of terrorism The legal premise that the absence of fair trial guarantees might constitute an obstacle to the expulsion of an alien was established in the Othman judgment (discussed above).58 While the ECtHR accepted that the diplomatic assurances that the Jordanian authorities had given their UK counterparts could be relied upon for the purposes of avoiding a real risk that Othman would be subject to treatment contrary to Article 3, it equally held that because of the evidence that Othman’s trial in absentia in Jordan in 1999 had been tainted by the admission of evidence obtained by torture, it would be a breach of Article 6 ECHR in conjunction with Article 3 for him to be expelled there. Guarantees of fairness in criminal proceedings in Article 6 do not apply to immigration or asylum proceedings nor indeed even to extradition proceedings.59 Article 6, though, may be an obstacle to expulsion (or extradition) where the trial has been tainted by a flagrant denial of justice – in the specific case of Othman, through the admission of evidence that had been obtained by torture. The ECtHR stated that this is a high threshold: it means that there must be more than a procedural fault, there needs to be a violation of the principle of equity of the procedural guarantees which is so significant that it undermines the essence of the right protected by Article 6. The admission of evidence, which has been obtained by torture, is manifestly contrary not only to the express provisions of Article 6 but also against international norms of the most fundamental kind regarding the probity of the procedure. The ECtHR applied the standard it set itself and found that Othman’s expulsion to Jordan where he had been convicted in absentia in a trial where there was substantial reason to believe that key evidence against him had been obtained by torture would be a violation of Article 6 (not of Article 3). The UK authorities subsequently convinced their Jordanian counterparts to undertake a new trial where the tainted evidence would be excluded.60 At that point, Othman decided not to contest the arrangements any further.

57 58 59

60

262

MS v Belgium, App No 50012/08, 31 January 2012. Othman v UK (n 40). Mamatkulov & Askarov v Turkey, App Nos 46827/99 and 46951/99, 4 February 2005, (2005) 41 EHRR 25; N Mole and C Meredith Asylum and the European Convention on Human Rights (Human Rights File No 9, Council of Europe, Strasbourg, 2010). See Treaty on Mutual Legal Assistance in Criminal Matters between the United Kingdom of Great Britain and Northern Ireland and the Hashemite Kingdom of Jordan (Cm 8612, London, 2013).

Aliens and counter-terrorism

The right to respect for private and family life and the allegation of terrorism The final human right to be examined here, which is relevant to the alien faced with a state’s allegation of engagement in terrorist violence, is that of respect for private and family life – Article 8 ECHR. The provision states that ‘everyone has the right to respect for his private and family life, his home and his correspondence’. But it then qualifies the right in subsection (2): ‘There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.’ The exceptions seem quite wide, and the jurisprudence of the ECtHR can be read as a lengthy road to place restrictions on the discretion available to states under this subsection. One of the most important parts of this story is the way in which the Court has considered what is necessary in a democratic society. In respect of aliens and terrorism allegations, the right to private life has been affirmed by the ECtHR in Nada v Switzerland, a remarkable decision about the freezing of assets and the ban on travel in accordance with the UNSCRs 1267 and 1333 against those linked with the Taliban and Al Qa’ida.61 Nada is an Egyptian and Italian national who lives in an Italian enclave (of 1.6 square kilometres) surrounded by the Swiss canton of Tocino. His name was added to the UN Sanctions Committee list on 1 May 2002. The consequence was not only the freezing of all his assets but also an entry and transit ban. This meant that he was a prisoner in his little Italian enclave as he could not leave it without passing through Switzerland. The ECtHR found that there was a breach of Article 8 because the restrictions imposed on Nada’s freedom of movement for a considerable period of time did not strike a fair balance between his right to the protection of his private and family life, on the one hand, and the legitimate aims of the prevention of crime and the protection of Switzerland’s national security and public safety, on the other. For this reason, the interference with his right to respect for private and family life was not proportionate and therefore not necessary in a democratic society. Similarly in El-Masri, the Court also found that there had been a breach of Article 8.62 People must not be treated in a manner that is inconsistent with their dignity and human freedom. According to the Court the essential object of Article 8 is to protect the individual from an arbitrary interference by the state. For this reason it found a violation of the right to private life in this case. In quite a number of the other cases of expulsion where Article 3 issues arise, the aliens or their family members also claim a right to respect for family life, which would prevent expulsion. However, in the terrorism-related cases, this ground has not been successful.

Conclusions This chapter has examined the relationship of the alien with the state where the person is subject to allegations of terrorist activities or involvement. The focus has been on those areas where the alien is vulnerable to state action in ways in which citizens are not. These are primarily as regards entry and expulsion, administrative detention, and social rights. While citizens are protected from expulsion from their own state, this is a major weakness in the status

61 62

App No 10593/08, 12 September 2012, (2013) 56 EHRR 18. El-Masri (n 44) [250]. 263

Elspeth Guild

of aliens. National constitutions may be inaccessible for aliens in respect of these differences of status. Not infrequently, national courts accept that the difference in treatment between aliens and citizens is discrimination but that it is permissible discrimination as the reason for it is based on border controls and immigration not a prohibited ground such as race or religion.63 Often national courts actually find that the difference in treatment is not discrimination because the cases of aliens and citizens are not comparable, perhaps an easier way of disposing of the issue.64 In order to examine the legal treatment of aliens who are suspected of involvement with terrorism violence, the UN refugee and human rights instruments, which establish thresholds regarding the treatment of aliens, have been viewed as important. In order to grasp more clearly the application of human rights norms to the situation of aliens faced with counter-terrorist measures, examination turned to the European regional framework of the ECHR and its interpretation by the ECtHR as this provides a substantial body of jurisprudence from which one can gather a general picture of the limits of state counter-terrorism actions regarding aliens. In this examination, the most important protection for aliens suspected of terrorist activities is against expulsion on the ground that in the destination country there is a serious risk that they will be subject to torture, inhuman or degrading treatment, or punishment. A particularly problematic category of this action is extraordinary rendition where states have engaged in the kidnapping of aliens (and possibly also of citizens) and taking them across international borders to places where they are then subject to torture, inhuman or degrading treatment, or punishment. While sometimes aliens are kidnapped from a country where they are seeking international protection and sent to their home state where they are subjected to treatment contrary to Article 3 (such as the Alzery and Agiza cases), in others they are aliens in one country who are kidnapped and taken to yet another country to be tortured (the case of ElMasri). Because aliens may be expelled, they may also be held in detention pending such expulsion (or prohibition on entry). Where the alien is suspected of engagement with terrorist violence, some states have been anxious to hold them in detention and out of harm’s way, so to speak. Such administrative detention has also been examined on the basis of the human right to liberty and security of person. The ECtHR has placed substantial limits on such detention in that it must be genuinely in pursuit of expulsion and cannot be justified on grounds of terrorism suspicions. In the final part of this chapter, claims of aliens that their rights to respect for their family and private life have been breached have also been examined and successful challenges to coercive state actions regarding their property and movements across international borders have been noted. This survey of the relationship of aliens and states (in Europe specifically) where the state suspects the alien of terrorist activities reveals a highly contested field. Many of the cases have had a high profile in national and international media, and the aliens in question are sometimes described in highly pejorative ways.65 State measures, which would not be permissible in respect of citizens, are nonetheless passed by parliaments and acted upon by state authorities in respect of aliens, focusing in particular on the structural vulnerabilities that attend the alien’s legal

63 64

65

264

JM Chacón, ‘Unsecured borders: immigration restrictions, crime control and national security’ (2006) 39 Connecticut Law Review 1827. E Guild, ‘The face of securitas: redefining the relationship of security and foreigners in Europe’ in P Craig and R Rawlings, Law and Administration in Europe: Essays in Honour of Carol Harlow (Oxford University Press, Oxford, 2003). C Greer and Y Jewkes, ‘Extremes of otherness: Media images of social exclusion’ (2005) 32 Social Justice 20.

Aliens and counter-terrorism

status. The struggles in respect of these measures are transformed fairly rapidly into international or regional human rights claims – the only type of claim available to the alien capable of defeating a national legal measure upheld by a national court. Thus, the forum of disputes between aliens and states regarding the limits that can be placed on counter-terrorism activities of states become ‘supranationalised’. While, on the one hand, this means that aliens are able to present their claims in venues where citizenship is not a core consideration (human rights are by definition for everyone not only citizens), on the other hand, this moves the ferocity of national security debates to supranational human rights courts (at least in those areas of the world where they are available and powerful, which largely means Europe alone).66 Of course there are many views about who benefits (and whether that benefit is legitimate) from the supranational judicialisation of human rights, including those of political violence. On the one hand, there are those who insist that democratic control is paramount in any matters of political violence. Therefore supranational courts, which are only tangentially subject to democratic control, usually through the periodic appointment of judges, are too far from the core democratic institutions to enjoy legitimacy in this area. At the other end of the spectrum is the position that supranational courts, exactly because they are outside the immediate whirlpool of national politics, are better placed to draw the crucial lines between the obligations of human rights and the requirements of national security. The position of the observer determines the preference regarding the adjudication of human rights of non-citizens where national security is raised. Better or worse results depend on what one thinks a good result is. Nonetheless, structurally, a number of regions of the world have established human rights courts or adjudication bodies for the specific purpose of taking the ultimate interpretation and adjudication of issues of human rights out of the hands of national actors, even judicial actors. This is a policy choice of such states that is founded on a belief that human rights adjudication is of such importance that it must be protected from political interference and the best way to do this is to elevate it out of the direct scope of national sovereign reach. For the moment, as can be seen from the cases discussed here, this move in Europe at least has resulted in a greater sensitivity to human rights claims than national courts have achieved and a more probing investigation into national security claims that states put forward.

66

See, for instance, B Carlin ‘European court “tipped off ” Abu Qatada over deadline to help him make last-ditch appeal to stay’ Daily Mail (London, 21 April 2012) www.dailymail.co.uk/news/ article-2133343/Euro-court-tipped-Abu-Qatada-make-ditch-bid-stay.html accessed 6 January 2014. 265

18 The handling and disclosure of sensitive intelligence Closed material procedures and constitutional change in the ‘Five Eyes’ nations David Jenkins

Introduction In the post-9/11 period, closed material procedures (CMPs) for the handling and disclosure of sensitive intelligence as evidence in legal proceedings have proliferated throughout Australia, Canada, New Zealand, the UK, and the US – the so-called ‘Five Eyes’ nations comprising the world’s closest international, intelligence-sharing network.1 In the UK and Australia especially, CMPs have become prominent, permanent fixtures of those legal systems; they can no longer be dismissed as temporary, but lingering, emergency counter-terrorism measures or procedural aberrations having limited scope. Accordingly, CMPs have by now become ripe for closer study of their wider, long-term effects upon their host legal systems. This chapter is a preliminary, working stage of just such an anticipated study. For this purpose, it broadly defines CMPs as secretive legal proceedings used to protect national-security-sensitive material, relied upon by the state as evidence when adjudicating individual rights, while restricting both a person’s access to that evidence and representation by legal counsel. Due to reasons of space, however, the chapter’s focus will be limited to those CMPs affecting personal liberty or used in the civil and criminal courts.2 Because of their secretive nature, CMPs sit uneasily with the common law’s tradition of due process, which requires open, adversarial justice and an unbiased decision-maker for every criminal defendant or civil litigant. This tradition also has a substantive component that goes beyond the state’s mere compliance with formalistic procedural rules. In this way, it invokes a

1 2

266

See P Farrell, ‘History of 5-Eyes – explainer’ The Guardian (London, 2 December 2013). Accordingly, this chapter will not address the use of CMPs used, for example, in administrative proceedings regarding terrorist financial transactions or the approval of national security-related surveillance.

The handling and disclosure of sensitive intelligence

broader, value-rich conception of the rule of law that places some outer limits, whether legal or moral, on the valid exercises of state authority; it is thereby intertwined with a political ethic of liberty.3 The meaning of ‘liberty’ is complex and much debated, and not for further discussion here. Nevertheless, this chapter will assume that liberty encompasses, at the least, not only an individual’s safety from arbitrary and unjustified state interferences with certain fundamental rights, but a vested, autonomous legal power in the individual to contest interferences in a fair, public procedure. Even by this thin definition, then, liberty animates the fair-trial principles of due process, while both exist in tension with state power in a liberal democracy that is paradoxically a threat to, and the defender of, free society. Thus, by departing from the open, adversarial procedures traditionally required by due process, CMPs risk a secret form of justice that strikes at the liberty-based, raison d’être of the liberal state itself. From this point-of-view, CMPs are constitutionally problematic in the highest degree. However, this perspective is normatively loaded in its ascription of a legally or politically binding force to the due process tradition, as well as the deontological pull of the liberty ethic behind it. Moreover, pro-liberty (like security) polemics all too often ring dogmatic or clichéd within the long-running ‘security-versus-liberty’ debate.4 This debate, however, is best seen as neither a contemporaneous political choice nor a simple policy framework in which one must take sides. Instead, it is a post-9/11, historical dialectic for analysing normative instability, over time, within the legal systems of the Five Eyes nations. In this dialectic, due process and CMPs play central roles, respectively, in a contest between liberty and security norms that lie behind them. Consequently, where CMPs have expanded in use, security has increasingly vied with liberty to be the pre-eminent value of the legal system in question; where CMPs have met legal or political resistance on account of their due process inroads, so too has liberty stood its ground. From this perspective, it becomes more difficult, as a normative matter, to impugn the constitutional integrity of CMPs against previously ascendant standards of due process, for the reason that due process and CMPs now stand for two different, competing constitutional visions: a constitution of liberty and one of security. Accordingly, this chapter analyses trends in CMP expansion and usage in the Five Eyes countries in order to identify the factors contributing to their spread and so determine whether an accompanying normative instability exists within these jurisdictions. Section 2 outlines the origins, development, and use of CMPs in the UK, Australia, and Canada (New Zealand is excluded here due to limited space). Section 3 then proposes three likely causes for the trends of CMP expansion between and within these three jurisdictions. Moving on to the US, Section 4 looks at how the federal courts there accommodate sensitive intelligence in civil and criminal trials, before contrasting those procedures with special immigration and military tribunals. In conclusion, this chapter argues that, since 9/11, these transnational patterns in CMP usage indicate a possible normative divergence among the Five Eyes nations, as the security-versus-liberty dialectic resolves itself in two different directions. Liberty – for the moment, at least – remains the dominant constitutional norm in the US and Canada, while in the UK and Australia security now appears to be gaining as the central value of those legal systems, with unpredictable future implications.

3

4

On the fundamental, but rather elusive, nature of ‘due process of law’ as a guiding legal principle, see A Tomkins,‘National security and the due process of law’ (2011) 64 Current Legal Problems 215, 215–6. See further Chapter 6 (Fabbrini) in this book. 267

David Jenkins

CMPs in the UK, Australia, and Canada While secretive hearings are not new in the common law tradition, they have historically been limited to narrow contexts, such as immigration proceedings and military tribunals.5 Secrecy and limitations on the adversarial process have otherwise been an anathema to the regular system of law, in both civil and criminal cases.6 Thus, the use of CMPs for restricting personal liberty or hearing civil lawsuits while concealing evidence represents significant inroads upon traditional common law notions of due process. Their spread between and within the British, Australian, and Canadian legal systems in the post-9/11 period has therefore been as controversial as it has been swift.

From immigration to preventive controls It is in the immigration context that CMPs, as currently used in Australia, Canada, and the UK, have their beginnings, with the ECtHR ruling in Chahal v United Kingdom being the clearest starting point.7 In Chahal, the ECtHR found that closed British immigration procedures, which excluded an alien from full participation and denied him legal representation for national security reasons, violated an individual’s right to procedural fairness under Article 6 of the ECHR. While leaving it up to the UK government and parliament to devise compliant replacement procedures, the ECtHR nevertheless recognised the state’s legitimate aim of protecting sensitive intelligence in immigration cases. In identifying an alternative, more proportionate means to do so, the ECtHR suggested the use of ‘secret advocates’ to represent an individual in closed hearings: as the Court pointed out in its judgment, this was a mechanism previously used in Canadian administrative hearings bearing on the operations of its clandestine intelligence services.8 In response, in 1997 the British Parliament created the Special Immigration Appeals Commission (SIAC)9 to review ministerial decisions that an alien should be removed as a national security risk. Although the SIAC could hear government evidence in secret without the presence of the alien, a special advocate would represent the interests of the individual concerned. Under the new scheme, the special advocate could not freely communicate with the alien and his legal counsel after receiving the file of closed material, nor was the state obliged to provide the individual with a summary of the evidence withheld. The UK government put the SIAC system to new purpose after the 2001 terror attacks on the US. After the House of Lords found, in the famous Belmarsh decision, that Parliament’s statutory authorisation for the indefinite detention of non-removable, alien terrorist suspects under the Anti-terrorism, Crime and Security Act 2001, Part IV was incompatible with the ECHR for disproportionality and discriminatory reasons,10 the then Labour Government scrambled to find a way to prevent the release of those it had already imprisoned through the

5

6 7 8 9 10

268

See Ex p Milligan 71 US (4 Wall) 2 (1866); Re Clifford and O’Sullivan [1921] AC 570 (HL); Ex p Quirin, 317 US 1 (1942); R v Secretary of State for the Home Department, ex p Hosenball [1977] 3 All ER 452 (CA); Kioa v West [1985] HCA 81; Suresh v Canada (Minister of Citizenship and Immigration) [2002] 1 SCR 3. See R v Davis [2008] UKHL 36; Al Rawi v Security Service [2011] UKSC 34. [1996] ECHR 54. Ibid [144]. Special Immigration Appeals Commission Act 1997 (UK). Anti-terrorism, Crime and Security Act 2001 (UK), s 23; A v Secretary of State for the Home Department [2004] UKHL 56 (Belmarsh). See also A v United Kingdom App No 3455/05, 19 February 2009, (2009) 49 EHRR 29.

The handling and disclosure of sensitive intelligence

SIAC system. The result was a novel control-order regime under the Prevention of Terrorism Act 2005 utilising the SIAC model. The Government could preventively restrict the actions and movements (even amounting to house arrest) of any alien or British citizen it suspected of presenting a terrorism risk, while relying upon secret evidence that individuals could neither see nor contest with their regular legal counsel. These control orders would be much litigated in the English courts under the ECHR, resulting in several important judgments that, among other things, required the state to provide the controlee with an evidential summary (or ‘gist’) of any closed evidence.11 Surrounded by controversy, as well as litigation, control orders were replaced in 2011 by a similar, but somewhat less draconian, system under the Terrorism Prevention and Investigation Measures (TPIM) Act 2011, utilising basically the same CMP scheme.12 For purposes of this chapter, however, the often-changing statutory and litigation details of control orders, TPIMs, and their CMPs are all less important than their overall constitutional significance. With the first introduction of control orders in 2005, CMPs – actually progressive within the limited immigration context of Chahal – made a successful jump to the wider legal system, creating a preventive justice scheme alternative to criminal investigation and prosecution. In this way, CMPs represent one of the state’s first major salvos in an escalating contest over which of the two values – liberty or security – should take priority in Britain. CMPs made a similar jump from immigration hearings to general preventive controls in Australia, which has mimicked British developments in this area. Partially instigated by the London bombings by ‘home-grown’ British terrorists in July 2005,13 amendments to the Australian Criminal Code later that year authorised the imposition of control orders against individuals that the Government suspected of posing a terrorism risk.14 While the procedures for the making of Australian and British control orders (or TPIMs) are similar, there are two significant differences.15 First, Australia has no federal rights charter that can limit the scope or substance of any particular order, or the procedures by which they are imposed. This situation contrasts with that in the UK, where the strictures of the ECHR (as domestically incorporated by the Human Rights Act 1998) have been a constant source of litigation pertaining to orders and CMPs. Consequently, as seen in Thomas v Mowbray,16 the most important legal challenge so far to the Australian control order scheme has been based not on a rights claim, but on the constitutional division of legislative and judicial powers – a challenge which the High Court of Australia has rejected in upholding the control order regime. Second, when the Australian government requests a court to review a control order in closed hearing, the excluded individual is entitled neither to representation by a special advocate nor a summary of the state’s

11

12 13

14 15

16

Secretary of State for the Home Department v AF (no 3) [2009] UKHL 28; A v United Kingdom (n 10); See also Secretary of State for the Home Department v JJ [2007] UKHL 45; Secretary of State for the Home Department v MB [2007] UKHL 46. Compare the Draft Enhanced Terrorism and Investigations Measures Bills (Cm 8166, London, 2011) (UK). S Harris-Rimmer and N Brew, Proposals to further strengthen Australia’s counter-terrorism laws 2005 (Ebrief, Parliamentary Library, Parliament of Australia, 2005). Available at: www.aph.gov.au/About_ Parliament/Parliamentary_Departments/Parliamentary_Library/Publications_Archive/archive/Ter rorismLaws accessed 2 August 2014. Div. 104, Australian Criminal Code (Cth). See B Jaggers, Anti-terrorism control orders in Australia and the United Kingdom: a comparison (Research Paper no. 28 2007–2008, Parliament of Australia, 2008). Available at: www.aph.gov.au/About_ Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/RP0708/08rp28 accessed 2 August 2014. [2007] HCA 33. 269

David Jenkins

evidence against him. In this way, the Australian CMPs lack the two most important safeguards of their British counterparts, which were heavily influenced by the ECHR. The absence of these additional protections highlights both the Australian system’s emphasis on state security over individual liberty interests, and the conspicuous absence of any constitutional rights guarantees akin to the ECHR. Canada has followed the British example by incorporating CMPs into national securityrelated immigration hearings. The Immigration and Refugee Protection Act of 2001 allowed a minister to issue a ‘security certificate’ against an alien, thereby initiating special removal hearings from which the individual could be excluded, receiving neither legal representation nor a summary of the state’s secret evidence. Where the individual could not be deported due to a risk of torture upon return, detention could be potentially indefinite, as was the case in the UK before the Belmarsh decision. In Charkaoui v Canada (Minister of Citizenship and Immigration),17 the Supreme Court of Canada found that the total exclusion of an individual from the closed, security-certificate hearings, with no legal representation, violated procedural rights protected by the constitution’s Charter of Rights and fundamental to Canada’s common law tradition of adversarial justice. Borrowing a suggestion from the Court, Parliament responded to Charkaoui with new legislation incorporating British-style special advocates into the security-certificate process; the Court later upheld this revamped CMP.18 While controversial and problematic, Canada’s security-certificate CMPs nevertheless bear scrutiny against those in the UK and Australia in two favourable respects. First, as Charkaoui itself shows, Canadian procedures are subject to relatively strong judicial review under the Charter of Rights. Second, the security-certificate CMPs have so far remained limited to immigration. As Canada does not have British or Australian-style control orders, those procedures have not made the critical jump to the wider legal system.

Further expansion of CMPs The jump of CMPs from immigration to preventive controls in the UK and Australia has inflicted a profound inroad into due process, permitting the state to restrict personal liberty on the basis of an executive risk-assessment alone, reviewed in a closed hearing, and using secret evidence that the individual can neither fully know nor contest through regular legal counsel. Nevertheless, it is important to note that other controversial, risk-prevention measures intended to curb undesirable or potentially criminal behaviour – and using summary procedures with truncated avenues of contestation – have been introduced into the British and Australian legal systems both prior and subsequent to control orders. In Britain, for example, football ‘banning orders’ were introduced in 1989,19 while ‘anti-social behaviour orders’ (or ASBOS) were a major item in the Blair government’s attempts to combat community nuisances, such as juvenile delinquency.20 In parts of Australia, ‘prohibited behaviour orders’ (similar to ASBOS)21

17 18

19 20 21 270

2007 SCC 9. An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act, SC 2008, c 3 (Canada); Minister of Citizenship and Immigration v Harkat, 2014 SCC 37. Football Spectators Act 1989 (UK). Crime and Disorder Act 1998 (UK); Anti-social Behaviour Act 2003 (UK); Anti-social Behaviour, Crime and Policing Act 2014 (UK). See, for example, Prohibited Behaviour Orders Act 2010 (Western Australia).

The handling and disclosure of sensitive intelligence

and ‘bikie laws’ intended to disrupt the activities and congregation of biker gangs22 likewise target prospective public safety risks. These sorts of preventive restrictions on personal liberty, using summary procedures to bypass criminal prosecution and limit the scope of individual legal challenges, give larger context to the post-9/11 rise of CMPs. Together, they show a growing, long-term state interest in preventive justice schemes that avoid traditional due process strictures and, with them, the courts that guard them. The institutional implications of CMPs have not gone unaddressed by British, Australian, and Canadian courts. As mentioned above, in Thomas v Mowbray the High Court of Australia heard but rejected an argument that the control order scheme violated the division of powers under the Australian constitution. The Supreme Court of Canada took a different approach in Charkaoui, making it clear that a CMP procedure, which denied any representation to an individual, was so fundamentally incompatible with the common law’s adversarial system that it violated the Canadian Charter of Rights and compromised the impartiality of the judiciary.23 The UK House of Lords and, later, the Supreme Court have made similar observations about the fundamental, constitutional place of open, adversarial justice and its connections to judicial independence. In R v Davis,24 the House of Lords declined to admit anonymous criminal witness testimony (which Parliament promptly afterwards authorised by statute), while, in Al Rawi v Security Services,25 the UK Supreme Court refused to allow the use of an ad hoc, courtordered CMP in a civil action where sensitive evidence came into play (although as seen in the next paragraph, Parliament soon legislated for this, as well). Seen from this institutional perspective, the proliferation of CMPs or other due process shortcuts threaten not only individual rights, but also the judiciary’s constitutional role as the independent, impartial protector of the rule of law. For this reason, in the UK, the recent expansion of CMPs beyond TPIMs is the possible constitutional turning point away from traditional common law notions of adversarial justice in favour of what CMP advocates would argue are more time and resource-efficient, inquisitive legal methods. In 2013, CMPs made a second, critical jump to the whole gamut of civil court proceedings. As a direct response to the Al Rawi decision, Parliament passed the Justice and Security Act 2013, expressly authorising the use of control order/TPIM-style CMPs in civil cases involving sensitive evidence. These new procedures augmented the common law public interest immunity (PII) doctrine, by which a court, after an ex parte, in camera inspection of possibly security-sensitive material, could either require its public disclosure to ensure a fair trial or exclude it from evidence altogether in order to protect the national security.26 The PII doctrine was, on the whole, a good, workable balance between the competing fair trial and security interests in play in national security cases, and was the culmination of years of doctrinal development in the courts. Nevertheless, the Tory–LibDem government justified the introduction of CMPs into civil suits, because, in rare cases under PII, first, the state might feel forced into a default judgment or settlement in favour of private claims against it, rather than risk a judicial disclosure order that would, in the Government’s judgment, endanger the

22 23 24 25 26

See, for example,Vicious Lawless Association Disestablishment Act 2013 (Queensland). Cf Harkat, 2014 SCC 37. [2008] UKHL 36. See further Criminal Evidence (Witness Anonymity) Act 2008 (UK) and Coroners and Justice Act 2009, Pt III (UK). [2011] UKSC 34. For the development of PII, see Conway v Rimmer [1968] AC 910; R v Chief Constable of West Midlands, ex p Wiley [1995] 1 AC 274; R v H [2004] UKHL 3. 271

David Jenkins

national security,27 and, second, a plaintiff might lose a colourable case against the state, in the event that critically favourable evidence to him was excluded pursuant to the PII process.28 So far, this second jump of CMPs to civil cases has been confined to the UK, where the Justice and Security Act 2013 remains controversial and its long-term impact upon the wider legal system remains to be seen.29 However, there exists a future possibility of a third, even more serious leap from civil cases to criminal prosecution, in which guilt or innocence might be determined by secret evidence heard in closed sessions. In May 2014, an English Crown Court acceded to a request from Crown prosecutors to hear the trial of two terrorism suspects in secret, ordering that they remain unidentified, that the public and journalists be excluded from the courtroom, and that trial proceedings go unreported.30 The state justified this request on the grounds that, if the court forced it to reveal sensitive evidence at an open trial, it would likely abandon the prosecution in order to protect intelligence sources, thus letting two allegedly dangerous terrorists remain at large. Shortly afterwards, the Court of Appeal – while recognising that open, adversarial justice was indeed a fundamental principle of the common law – only partly reversed this ruling.31 It ordered release of the names of the defendants and allowed a few journalists (security vetted by the state) to attend the opening and closing sessions of the trial. The core trial proceedings, however, would remain secret and unreported. This prosecution, very nearly the first entirely secret trial in modern British history, suggests the corrosive influence that CMPs have had on due process principles in British law and, as a precedent, invites speculation about their future usage in criminal cases.

Causes for CMP expansion As described above, CMPs have proliferated in the UK, Australia, and Canada over the post9/11 period. These special procedures challenge traditional notions of due process by restricting an individual’s right to open, adversarial justice when sensitive intelligence or other material comes into evidence; at the same time, CMPs risk forcing the courts into an inquisitive role that is unduly favourable to state interests. While CMPs used for restricting personal liberty have remained limited to immigration security certificates in Canada, they have made two critical jumps within the British and Australian legal systems, as seen above: first, in both the UK and Australia, from immigration proceedings to preventive controls, and second, but only in the UK thus far, from TPIMs to ordinary civil litigation, with an indication of a plausible further spread to criminal trials. Accordingly, the movement of CMPs across and within the UK, Australia, and Canada has taken place on two levels: internationally, between jurisdictions; and internally, from a limited legal context to broader application. There are at least three causes behind these two vectors of movement: a dysfunctional ‘best practices’ approach to law-making, weak judicial review of legislation, and the securitisation of legal systems.

27

28 29 30 31 272

This was the case in the Binyam Mohamed suit, alleging complicity of the British intelligence services in his torture. R (Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs [2010] EWCA Civ 65. See further Sir P Gibson, The Report of the Detainee Inquiry (Cabinet Office, London, 2013). Carnduff v Rock [2001] EWCA Civ 680. For the limited impact in the first year, see Report on use of closed material procedure: House of Commons Deb 22 July 2014, vol 584, col 123ws. Guardian News and Media v AB, CD (Case no 2014/02393C1) (19 May 2014). Guardian News and Media v Incedal and Bouhadjar [2014] EWCA Crim 1861.

The handling and disclosure of sensitive intelligence

A dysfunctional best practices approach In the post-9/11 period, the Australian, Canadian, and UK governments have justified the introduction of controversial counter-terrorism measures with reference both to meeting international law requirements (such as compliance with the ICSFT) and cooperating with the security efforts of partner nations. While domestic compliance with UN resolutions, counterterrorism conventions, or other international standards is both necessary and commendable, it has sometimes been attempted with insufficient attention to equally applicable human rights standards.32 Additionally, given the shared risks of terrorism and the practical need for concerted, transnational counter-terrorism measures in a globalised world, the benefits of a ‘best practices’33 approach to law-making seem obvious; that is, countries can and should look to other national practices and borrow or reject counter-terrorism legal measures that seem, respectively, more or less effective. Such comparative law-making encourages national experimentation while tending towards workable harmonisation, especially among countries with similar legal traditions and close policing/security relationships, such as the Five Eyes partners. However, the observance of best practices also assumes that national law-makers will seek out, borrow, and implement those counter-terrorism ideas that not only are the most operationally efficient, but also strike the best balance between the state’s security needs, on one hand, and citizens’ rights and constitutional principles, on the other. In actuality, however, this ‘balance’ is a lop-sided one. The best practices approach prioritises a liberty norm, where individual rights take precedence in law unless and until the state can justify security-enhancing limitations upon them. Even then, in keeping with the general legal principle of proportionality, the state may limit those rights no more and for no longer than is necessary to protect the public safety. The Australian, British, and Canadian governments have all, at times, invoked something like best practices to justify the adoption of foreign counter-terrorism ideas. Unfortunately, however, they have often done so without adequately considering how those ideas might negatively impact upon rights, within either their original or adoptive jurisdictions. Whether dismissive, careless, or simply hasty, such flawed comparisons and ill-considered borrowings threaten the liberty component of the best practices approach, if they allow state security concerns to predominate. The spread of CMPs between and within the Australia, Canada, and the UK regrettably, has been a product of just such a dysfunctional comparative method.34 The respective law-makers have often fallen short of best practices in at least two respects. First, when adopting CMPs, they have neglected the liberty-optimising component of the best practices approach, focused primarily on the state’s interest in protecting sensitive evidence, and borrowed too uncritically. Over time, this one-sided view risks inuring law-makers to sloppy, ill-fitting, or heavy-handed ‘copycat’ legislation. Second, among the three jurisdictions considered here, Britain stands as the main originator of CMPs and other counter-terrorism laws, to which Canada and Australia (especially, it seems) are often predisposed to look. This is

32

33

34

The much-discussed Kadi decision by the European Court of Justice illustrates this problem: Kadi and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities [2008] ECR I-6351. See further D Jenkins, ‘In Support of Canada’s Anti-Terrorism Act: A Comparison of Canadian, British, and American Anti-Terrorism Law’ (2003) 66 Saskatchewan Law Review 419, ‘There and Back Again: The Strange Journey of Special Advocates and Comparative Law Methodology’ (2011) 42 Columbia Human Rights Law Review 279, ‘Learning from Britain’s Mistakes: Best Practices and Legislative Revision in Canadian Immigration Law’ (2011) 62 University of New Brunswick Law Journal 47. See further Chapter 5 (Roach) in this book. See Jenkins, ‘There and Back Again’ ibid. 273

David Jenkins

perhaps attributable, understandably, to historical legal affinities and Britain’s long experience with terrorism related to the troubles in Northern Ireland. Nevertheless, this subtly unequal relationship increases the risk of reflexive, copycat law-making and undermines the objectivity of a true best practices analysis, critical when fundamental rights are at stake and security situations differ from one country to the next.

Weak judicial review As Section 2 shows, CMP procedures have been the subject of considerable litigation in the UK, Australia, and Canada. While space prohibits detailed discussion here of the litigation history, just a glance at a few major court decisions suggests that constitutional differences in rights protections and judicial review powers have had an important impact on CMP development within these countries. For a start, in the UK, the ECHR has been a prime influence on the development of CMPs, from the Strasbourg court’s decision in Chahal (described above) to British judgments like Secretary of State for the Home Department v AF (no 3),35 requiring the state to provide an individual with a ‘gist’ of closed material. However, as mentioned earlier, the Belmarsh decision itself directly led to the introduction of control orders legislation and, with it, the first jump of CMPs into the wider legal system. Thus, while the ECHR has caused the British courts and Parliament to improve CMPs on one level, a relatively weak judicial review power has nevertheless left the door open for their wider statutory expansion. For example, although Al Rawi made it clear that open, adversarial justice was an unwritten, yet fundamental, constitutional right in the UK, Parliament simply limited that right with the Justice and Security Act 2013. Having no authority to invalidate primary legislation contradicting constitutional rights, in such circumstances British courts are unable to stop political inroads upon them. At best, then, the soft form of judicial review that exists in the UK can only incrementally improve CMPs and retard, but not block, their spread elsewhere into the legal system. In Australia, where there are no federal rights guarantees, Thomas v Mowbray illustrates how courts there have even less power to influence CMPs, so long as they fall within a constitutional grant of legislative power. Thus, the courts have been unable even to require the additional procedural protections of special advocates and evidential summaries. Consequently, in both the UK and Australia, the judiciaries are relatively ill-equipped to blunt a Government’s determined security agenda. Effective parliamentary dissent to proposed security legislation is often (though not always) defused by a domineering executive that can impose strict party discipline, control floor debate, and rush passage of its bills. If the resulting law is heavy-handed or poorly drafted to the detriment of due process, individual rights, or other constitutional principles, courts can mollify its adverse effects only so far; even then their decisions remain subject to subsequent parliamentary override by simple majority. Without discounting important differences that do exist between the review powers of British and Australian courts, it is this shared, soft form of review that perhaps most distinguishes them from Canadian courts, which can outright invalidate legislation incompatible with the Charter of Rights. Thus, in Charkaoui, the Supreme Court could require (not just recommend) the federal Parliament to bring the security-certificate CMPs into constitutional compliance by a given deadline, at which time the offending law would expire. Such judicial authority is a considerable check on federal law-makers who might be tempted to give the state

35

274

[2009] UKHL 28, reflecting the European Court of Human Rights decision in A v United Kingdom (n 10).

The handling and disclosure of sensitive intelligence

greater security powers, but fear the political repercussions of an adverse court decision and, most likely, will remain unwilling to overrule any such judgment under an explicit Charter clause allowing them to do so (a legislative power that the federal Parliament has never used).36 This is not to say that Canadian courts, like those in other countries, might not be deferential when reviewing national security legislation.37 However, this strong (though not absolute) form of constitutional review at least partly explains why security-certificate CMPs have not jumped to the wider legal system, as they have done with preventive controls in the UK and Australia, where the judiciary is less able to obstruct the political will to increase state security powers at the expense of fundamental rights.

The securitisation of legal systems A third cause for the spread of CMPs, both internationally and domestically, is an everincreasing securitisation of the Australian, British, and (much less so) Canadian legal systems over the post-9/11 period – a period punctuated in the UK by attacks on the London transportation network and Glasgow airport, and in Australia by the bombing in Bali that killed many of its nationals. Since 2001, some of the controversial counter-terrorism laws that have proliferated in the respective jurisdictions are, depending upon point-of-view, either rational, necessary responses to a permanent threat of terrorism or over-reactions that exploit moral panics and societal fears.38 Either way, such laws must be seen against the backdrop of the Iraq and Afghan wars, the so-called ‘War on Terror,’ immigration debates and Islamophobia, and public fears over terrorism, crime, and anti-social behaviour. Such circumstances have ploughed fertile ground for the post-9/11 counter-terrorism measures that have traded due process protections or other rights for ever more state security powers. As Prime Minister Cameron has remarked, ‘It is the first duty of government to protect our national security and to act quickly when that security is compromised’,39 a position that now seems to contradict a pre9/11 British government that then saw its priority as improving civil liberties and making politics more democratically accountable by, for example, introducing the Human Rights Act 1998, reforming the House of Lords, and improving public access to government-held information. The introduction and spread of CMPs, then, are only one aspect of an ongoing process of securitisation of the legal system, of which a stream of counter-terrorism legislation, expansive and intrusive surveillance measures, and government security rhetoric have been, simultaneously, both a by-product and reinforcing cause. While this chapter obviously cannot canvas all of the relevant factors in the securitisation of law, the spread of CMPs nevertheless gives an indication of the general process at work. As counter-terrorism laws, like CMPs, become normalised over time, they will likely attract less-weighty state justifications for their future use and expansion to meet perceived shortcomings in the state’s national security defences. In this regard, for example, the first jump of CMPs into the regular British legal system, through control orders legislation, presents a classic case of the ‘slippery slope’. Once CMPs like these 36 37 38 39

Canadian Charter of Rights and Freedoms, s 32. See Suresh [2002] 1 SCR 3; Harkat, 2014 SCC 37. See F de Londras, Detention in the ‘War on Terror’: Can Human Rights Fight Back? (Cambridge University Press, Cambridge, 2011). ‘PM and Deputy PM to announce emergency security legislation’ Press release, Prime Minister’s Office and Deputy Prime Minister’s Office (10 July 2014). Available at: www.gov.uk/ government/news/pm-and-deputy-pm-to-announce-emergency-security-legislation accessed 3 August 2014. 275

David Jenkins

become operational for some time and acquire a sense of permanence, law-makers and the public can gradually become desensitised to what were once seen as exceptional security measures. Shock at the idea of their further expansion, though it might remain controversial, can also lessen with time and each successive security-related inroad on due process or other rights. Furthermore, a steadily expanding regime of security laws begins to take on an active, internal logic that supersedes the responsive role they might once have had in the traumatic aftermath of a terrorist attack at home or on a close ally. Under this logic, as CMPs or other counter-terrorism measures expand within a legal system, it, too, will normalise and prioritise once-exceptional security concerns as they increasingly conflict with civil liberties. Rights, in turn, become lingering, unaffordable luxuries of a pre-9/11 legal order – exploitable chinks in the state’s legal armour – that risk the public’s safety and themselves require justification. Perhaps especially where personally liberty and the secrecy of sensitive intelligence are concerned, the internal logic of security also challenges previous distinctions between administrative, criminal, and civil legal proceedings. What matters most is not the possibility of the unfair or erroneous deprivation of personal liberty or other rights, no matter how trivial or serious, but the public safety risks attendant upon a suspected terrorist remaining at-large or the public disclosure of sensitive intelligence in a court of law. Thus, from the newly securitised legal vantage point, preventive controls with due process shortcuts make more sense than criminal prosecutions, while CMPs become equally necessary where state secrecy might be compromised, regardless of their formal characterisations. Accordingly, in the UK and Australia, where CMPs have permanently infiltrated the regular legal system, the logic of secrecy will, in all likelihood, increasingly demand that civil libertarians justify the retention of due process standards in the face of the state’s countervailing security claims, rather than the other way around. Constitutionally speaking, the great risk is that, as this securitisation process feeds upon itself and gathers momentum, the security impetus behind it strengthens into a fully fledged normative force challenging liberty as the central value of the legal system.

Sensitive intelligence in the US As just suggested above, the expansion of CMPs in the UK and Australia – facilitated by poor ‘best’ practices, weak judicial review, and a securitisation process – possibly presages or even signals a normative transition from liberty to security in those two legal systems. Conversely, in Canada, the limitation of CMPs to security-certificate proceedings indicates that stronger judicial review has been at least partially responsible for warding-off the spread of more CMPs, forestalling the securitisation process, and thus preventing the onset of a liberty-to-security shift. This part offers another jurisdictional comparison to test this hypothesis further, with an overview of how the US handles sensitive intelligence in legal proceedings. Of course, the US shares a common law tradition with the other Five Eyes members, and their historical approaches to sensitive material share pedigrees in the old doctrine of Crown privilege, not examined here. Nevertheless, the American legal system is sufficiently distinct to warrant treatment separately from its allies discussed above, while the apparently antagonistic relationship between ‘open justice’ in the federal courts and the ‘secret justice’ of special immigration and military tribunals actually represents a tense, but stable, constitutional paradigm of liberty that contrasts with the UK and Australia.

Open justice in the US courts In the US, the state-secrets doctrine determines whether sensitive intelligence or other material 276

The handling and disclosure of sensitive intelligence

is privileged and thus excludable as evidence in civil proceedings. The Supreme Court first setout the doctrine in United States v Reynolds in 1953,40 although, as just stated above, it has much older common law roots. In Reynolds, involving a tort claim against the US by families of airmen killed in a fatal bomber crash, the US government claimed that certain documents would be detrimental to the national security if released to the plaintiffs and so argued that they were exempt from production as evidence. The Supreme Court agreed with the government that, upon its presenting a colourable claim to a court that discoverable material in its possession was security sensitive, such material was indeed privileged and need not be produced. Moreover, courts could neither second-guess a government claim of privilege nor require ex parte, in camera inspection of the material in question to verify that claim, even when that material was so critical to the case of either the private litigant or the government that exclusion would inevitably lead to one outcome, including dismissal or summary judgment. With the wide discretion that courts give to executive claims of privilege, and the actual or effective non-justiciability of a case that may result, the Reynolds state-secrets doctrine has much in common with the ‘political question’ doctrine, by which judges refuse to review government decisions touching upon national security, foreign affairs, or other sensitive policy matters.41 The state-secrets doctrine has long been controversial on the basis that it effectively gives an absolute discretion to the government to withhold evidence in its possession, so long as it asserts a valid national security interest, even when it results in dismissal of a claim against it. Such a discretion risks government over-claiming or outright abuse to avoid embarrassing intelligence disclosures or to avoid litigation altogether. These concerns have escalated in the post-9/11 period, as the US government has liberally invoked the doctrine to avoid litigating high-profile suits alleging human rights abuses, such as torture, in the course of the ‘War on Terror’. Nevertheless, federal judges have remained unwilling to question the Reynolds holding.42 Despite these real flaws, however, the core premise of the state-secrets doctrine, like that of the political question, remains central to the US Constitution’s separation of powers scheme: that is, what classified information is or is not potentially damaging to the national security is a decision best left to the expertise of the executive branch, not unelected judges. In some cases, application of the doctrine might indeed result in justice denied, when it results either in the dismissal of a suit against the state or the inability of the government to defend itself against a non-meritorious claim. However, the Reynolds trade-off to such disadvantages is a systemic, not a case-centred, one. The state-secrets doctrine uncompromisingly guards the openness of legal proceedings – and thus due process as a guiding constitutional principle – by rejecting outright secret evidence or closed trials. The situation is similar in criminal cases, in that the US government may never rely upon undisclosed material as evidence in prosecuting a case, nor withhold exculpatory evidence from a defendant.43 However, to balance the state’s discovery obligations with national security needs, the Classified Information Procedures Act44 (CIPA) sets out pre-trial procedures by which courts can inspect, in camera, sensitive material that may be required as evidence at the actual trial. Although the defendant can be excluded from this closed hearing, the defence counsel is entitled to participate. Under the CIPA, as a result of the ex parte sessions, a federal court can

40 41 42 43 44

345 US 1 (1953). See LK Donohue, ‘The shadow of state secrets’ (2010) 159 University of Pennsylvania Law Review 77. Baker v Carr, 369 US 186 (1962). See Mohamed v Jeppesen Data Plan, 614 F3d 1070 (9th Cir 2010), en banc. See Brady v Maryland 373 US 83 (1963). Pub L 96-456, 94 Stat 2025 (15 October 1980). 277

David Jenkins

permit summaries, redactions, or stipulations of facts in place of full disclosure at trial, as long such measures do not compromise the defendant’s due process rights. If the government refuses its consent to the ordered release of any classified material, then its only option is to abandon the prosecution. The CIPA procedure differs from the CMPs discussed above, however, in that the ex parte hearings are pre-trial and evidential; no verdict can be founded upon evidence that is not heard in the subsequent open trial.45 Furthermore, the fair trial rights enshrined in the Fifth and Sixth Amendments to the US Constitution are enforceable by a judicial power to strike-down limiting statutes, with no possibility of legislative override. Congress cannot, therefore, authorise the use of secret evidence, closed trials, or a preventive control scheme that would bypass prosecution in open court.

Secret justice? Special tribunals in perspective As seen above, the regular US courts do not allow CMPs, as understood in this chapter, beyond the pre-trial, in camera inspections permitted by the CIPA. As in the UK,Australia, and Canada, open and adversarial justice is fundamental to the American legal system; as in Canada, it is also subject to entrenched constitutional rights guarantees enforceable by strong-form judicial review. There are, however, two apparent exceptions to open justice in the US: special immigration and military tribunals. At first glance, these exceptions would seem to undermine due process and perhaps contradict the centrality of liberty to the American legal system. In actuality, albeit counter-intuitively, they confirm both. The first apparent exception to open justice is the Alien Terrorist Removal Court (ATRC). Created by Congress in 1996 as part of a package of federal legal reforms,46 the court is a special immigration tribunal for deportation proceedings against suspected alien terrorists (and so is akin to the UK’s SIAC and Canadian security-certificate systems described above). It expressly allows the use of secret evidence and hearings from which the individual can be excluded. At the start of proceedings, the US government may present to the court, in camera, material upon which it intends to rely, but wishes to remain secret for national security reasons. Examining this material, the court must then approve a government-prepared evidential summary sufficient to allow the deportee to prepare a defence. If the government is unable to produce a summary satisfactory to the court, the court must then dismiss the proceedings unless it determines that national interests demand continuation in spite of the summary’s absence. At this in camera hearing, any permanent alien residents are entitled to representation by a special attorney, much like special advocates elsewhere, who will protect their interests, but without sharing closed material with them. Temporary residents, however, receive no such representation. A public removal hearing then follows, using the summarised evidence (if any) that resulted from these in camera sessions. While an alien ordered removed by the ATRC may of course be detained, such detention can only be for a time reasonably necessary to effect removal; indefinite detention is not constitutionally permissible.47 Yet, the ATRC is so legally problematic, it has never been used. Unlike CIPA procedures, those of the ATRC would seem to permit the state and the court to rely upon evidence partly or wholly withheld from a deportee. It also discriminatorily limits the rights of permanent and

45 46 47 278

In this way, the CIPA procedures resemble, for example, those under the English PII doctrine or the Canada Evidence Act, RSC 1985, c C-5 (Canada). Antiterrorism and Effective Death Penalty Act of 1996, Pub L 104-132, 110 Stat 1214 (24 April 1996). Zadvydas v Davis, 533 US 678 (2001).

The handling and disclosure of sensitive intelligence

temporary alien residents to legal representation in the in camera evidential proceedings. Consequently, although untested, the constitutionality of the ATRC is in serious doubt.48 The fact that the US government has never submitted a removal application to the ATRC throughout the whole post-9/11 period suggests that the government itself harbours serious reservations about that court’s ability to withstand a constitutional challenge. In practice, then, the complete inactivity of the ATRC, its limitation to a narrow immigration context, and its highly questionable constitutionality refute it as an acceptable, exceptional forum for secret justice. Special military tribunals for the detention and trial of ‘enemy’ or ‘unlawful’ combatants also present an apparent challenge to the principle of open justice in the American legal system. These tribunals gained notoriety soon after the American-led invasion of Afghanistan, when President Bush, acting under his purported war powers, unilaterally designated several hundred Taliban and Al Qa’ida captives to be enemy combatants subject to military detention and special trial by military commission for allegedly supporting terrorism or otherwise violating the international laws of war.49 The prison at Guantánamo Bay has since become infamous for the US government’s arbitrary detentions and torture of its prisoners, and its attempts to deny them habeas corpus review of their imprisonment. As for the presidentially ordered military commissions themselves, their regulations permitted capital trials of enemy combatants using secret evidence and closed hearings from which the defendant could be excluded. The whole litigation and legislative history of the Bush detentions and commissions is too lengthy and complicated for discussion here.50 What is important, however, is that the US Supreme Court eventually found these commissions to be unlawful, largely due to their secretive procedures.51 Later, under the Obama Administration, Congress passed the Military Commissions Act of 2009 (MCA 2009) to put military commissions on a surer statutory footing that was compliant both with existing law and the constitutional standards announced by the Supreme Court.52 In hindsight, the negative popular imagery of the Guantánamo Bay controversy (as justified as it was) gives an inaccurate picture of military commissions and their long-established, but very limited, place in the American legal system. Properly construed in law, military commissions have three general characteristics. First, legal precedent makes it clear that military commissions have long been, in some circumstances, a constitutional means to try martial offences.53 Second, as the Supreme Court has explained, military commissions must by law closely adhere to the sophisticated procedures used by regular courts-martial, themselves compliant with the Constitution’s due process requirements. Finally, the military commission system created by the MCA 2009, while somewhat relaxing evidentiary standards and some procedures to account for the martial nature of the charges before it, still promises an open, adversarial trial for unlawful combatants (narrowly defined by the statute), who receive full legal representation. In doing so, commissions may use in camera, CIPA-type reviews of sensitive

48 49 50 51 52 53

JD Niles, ‘Assessing the Constitutionality of the Alien Terrorist Removal Court’ (2008) 57 Duke Law Journal 1833. Executive Order, ‘Detention, Treatment and Trial of Certain Non-Citizens in the War Against Terrorism’ 66 Fed Reg 57833 (16 November 2001). See Chapter 14 (Ni Aolain and Gross) in this book. Rasul v Bush, 542 US 466 (2004); Hamdan v Rumsfeld, 548 US 557 (2006); Boumediene v Bush, 553 US 723 (2008); Cf Hamdi v Rumsfeld, 542 US 507 (2004). Title XVIII, National Defense Authorization Act for FiscalYear 2010, Pub L 111-84, 123 Stat 2190 (28 October 2009). Quirin, 317 US 1 (1942); Hamdan, 548 US 577 (2006). 279

David Jenkins

material at the pre-trial stage only to assess its admissibility as evidence and, in so far as it is possible, to prevent the release of national security secrets at the open trial. These statutory military commissions, constructed carefully with regard to court decisions, due process principles, and even the Geneva Conventions, bear little resemblance to the poorly conceived, legally flawed military commissions promoted by the Bush Administration. Consequently, and contrary to popular belief, the existing military commission system is no more a forum for secret justice than are the regular military or federal courts. Despite their special jurisdiction, military composition, and procedural peculiarities, military commissions now respect a defendant’s right to know and confront the state’s evidence in an open, adversarial trial with full benefit of legal representation. The commission system is, of course, an alternative avenue for prosecuting some suspected terrorists as unlawful combatants outside of the federal courts. Still, military commissions only allow prosecution for a very limited class of cases, involving a very narrow category of individuals, all linked to an armed conflict, and involving offences under the laws of war, as statutorily defined by Congress. Realistically, these limitations mean that there is no more probability of the state abusing military commissions to try civilian offences than there is of it abusing courts-martial.54 Furthermore, the jurisdictional differences between the regular courts and military commissions, the strictures of the Fifth and Sixth Amendments, and strong-form judicial review also ensure that the military commission system is safely cordoned off from the wider legal system, thus preventing special commission procedures from making any ‘jump’ similar to that of CMPs in the UK and Australia, as discussed above.

Conclusion: Harbingers of revolution CMPs have spread between and within Australia, Canada, and the UK in the post-9/11 period, as the state has sought ways to rely upon and conceal sensitive intelligence or other material in legal proceedings. Systems of secret justice have resulted, by which the state can deprive individuals of personal liberty or other rights while excluding them from closed hearings, denying them access to secret evidence, and restricting their representation by legal counsel. The forms and extent of CMP usage differ between these three countries, with the UK and Australia having incorporated them more widely into their legal systems than has Canada, where they remain limited to a relatively narrow immigration context. The causes for the spread of CMPs in these three jurisdictions are doubtlessly complex and varied, and this chapter has been able to delve into them only so far. However, Section 3 has proposed at least three contributing factors, these being are a poor best-practices approach, weak judicial review, and the securitisation of legal systems. Based on these criteria, the remarkable expansion of CMPs in the UK and Australia seems especially attributable to the latter two factors, not noticeably present in Canada. In the US, in comparison, strong-form judicial review and the strict requirements of the Fifth and Sixth Amendments have created an especially formidable barrier to the state’s adoption of CMPs. Outcomes include the complete disuse of the ATRC and the successful court challenges to the flaws of the Bush-era military commissions, flaws which Congress has earnestly sought to remedy with the MCA of 2009. The significance of this chapter’s comparative study of CMPs, however, lies in understanding their impact upon the common law’s due process tradition of open, adversarial justice, and,

54

280

See, for example, Toth v Quarles, 350 US 11 (1955); Covert v Reid, 354 US 1 (1957); McElroy v Guagliardo, 361 US 281 (1960). Cf Quirin, ibid; Hamdi, 542 US 507.

The handling and disclosure of sensitive intelligence

ultimately, the ethic of political liberty which animates it. For critics of CMPs, they represent a secret justice incompatible with that due process tradition. For their advocates, they are a necessary step in protecting the public and the national security against terrorism or other insidious dangers. However, as this chapter has argued, the ‘security-versus-liberty’ debate goes deeper than policy positions or partisanship. Objectively speaking, that debate is actually a post9/11 dialectic about a normative contest between security and liberty, each competing to be the pre-eminent value of the legal systems of the Five Eyes nations. From this perspective, the spread of CMPs is one important marker of just how far security has gained in that contest in any one country (there are possibly others, such as covert surveillance, that cannot be covered here). In the US and Canada, where CMPs or similar procedures are very limited, entrenched rights guarantees and strong judicial review have been constitutional barriers against excessive political inroads on due process principles, sapping state security agendas of normative force. Indeed, Canadian security-certificate procedures and American military tribunals – as limited in application and as jurisdictionally fenced as they both are – might even be seen as means by which political pressures for extraordinary legal procedures have otherwise been diverted into constitutionally safe (albeit not unproblematic) channels. In the US and Canada, then, obstacles like those above appear to have protected due process and liberty a good deal by re-emphasising their constitutional importance and normatively defusing calls for greater secrecy in legal proceedings. These obstacles are less in play in the UK and Australia. CMPs have flourished with the expansion of preventive controls in these two countries, whereby they made critical jumps into their wider legal systems. In the UK, they have taken a second jump into civil litigation with the Justice and Security Act 2013; it is not unthinkable that a third jump could occur into the criminal law in the near future. These trends suggest that, as CMPs have become normalised within the British and Australian legal systems over the post-9/11 period, deeper normative changes might be occurring. That is, increasingly, political actors and the public might simply value the security justifications of secretive CMPs over the open, adversarial justice that would otherwise restrain the state’s interference with personal liberty or other rights. If this is true for the UK and Australia, as this chapter argues it might be, then CMPs are not so much exceptional or aberrant inroads on constitutionally fixed due process norms, as they are a legitimate procedural alternative to them in national security matters. Absent significant reversals in political temperament or an unlikely institutional showdown between courts, governments, and parliaments in the UK and Australia, this alternative quite possibly heralds a silent and unseen revolution. The old constitution of liberty will pass, unmissed, as the legal system ever more prioritises security, quietly defers to the state, and trusts its machinery of secret justice to keep the public safe.

281

19 The victims of terrorism Ilaria Bottigliero, Lyal S Sunga, and Clive Walker

Introduction Since 9/11, public and private security personnel and apparatus have multiplied,1 while terrorism incidents have continued apace, with a more than fivefold increase in deaths between 2000 and 2013.2 Following the 9/11 attacks, world expenditure on counter-terrorism is reckoned to have increased by around US$70 billion.3 Despite indications that victims of terrorism need greater protection, they often seem to remain at the end of the line of counter-terrorism priorities.4 Generally speaking, domestic frameworks remain piecemeal and inadequate. While there have been signs of growing interest in victims’ rights and greater attention to the question of redress in human rights circles at the international level, positive legislative and policy change at the domestic level have been more scarce. Terrorist victims’ concerns have become integrated into national security debates while the focus on the human rights of victims seems to have become weaker. This chapter provides an overview of the treatment of terrorism victims by first assessing whether such victims have a claim distinct from that of the victims of ordinary crime or that of the victims of natural catastrophe. Next, contemporary approaches in domestic law to

1

2

3 4

282

See for the UK impact, C Walker and A Staniforth, ‘The amplification and melding of counterterrorism agencies: from security services to police and back again’ in A Masferrer and C Walker (eds), Counter-Terrorism, Human Rights And The Rule Of Law: Crossing Legal Boundaries in Defence of the State (Edward Elgar, Cheltenham, 2013). See Global Terrorism Index 2014 (Institute for Economics and Peace, New York, 2014). For an assessment from the country most heavily involved in counter-terrorism, see BM Jenkins and JP Godges (eds), The Long Shadow of 9/11: America’s Response to Terrorism (RAND, Santa Monica, 2011). See B Lomborg, ‘Is counterterrorism good value for money?’ (2008)(1) NATO Review Available at: www.nato.int/docu/review/2008/04/AP_COST/EN/ accessed 14 November 2014. For the leading literature, see DS Greer (ed.), Compensating Crime Victims (IUSCRIM, Freiburg, 1996); J Norton Moore (ed.), Civil Litigation Against Terrorism (Carolina Academic Press, Durham, 2004); M Faure and T Hartlief (eds), Financial Compensation for Victims of Catastrophes (Springer, Vienna, 2006); HJ Albrecht and M Kilching, ‘Victims of terrorism protection’ in M Wade and A Maljevic (eds), A War on Terror? (Springer, New York, 2010); R Letschert, I Staiger, and A Pemberton (eds), Assisting Victims of Terrorism: Towards a European Standard of Justice (Springer, Heidelberg, 2010); I Bottigliero, ‘Realizing the right to redress for victims of terrorist attacks’ in AMS De Frías, KLH Samuel and ND White (eds), Counter-Terrorism: International Law and Practice (Oxford University Press, Oxford, 2012); I Bottigliero and LS Sunga, ‘Victims’ Redress Amidst Terrorism’s Changing Tactics and Strategies’ in B Saul, Research Handbook On International Law And Terrorism (Edward Elgar, Cheltenham, 2014); J Argomaniz and O Lynch (eds), International Perspectives on Terrorist Victimisation (Palgrave Macmillan, Basingstoke, 2015).

The victims of terrorism

redress for the victims of terrorism are discussed with regard to special state compensation schemes and the options available for private law civil litigation. These approaches are discussed critically against the standards of international law, using comparative examples drawn chiefly from the UK and US experience.

The need for special recognition for victims of terrorism Several arguments support a special regime for, or special recognition of, the rights of victims of terrorism to ensure that both primary and secondary victims of terrorism (often, next-ofkin), do not suffer disadvantage compared with the victims of ordinary crime. Some of these arguments have been based on the consideration that terrorism victims are usually ‘randomly selected’ – more than crime victims. In that sense, victims of terrorism are similar to victims of natural catastrophes, such as flooding or earthquakes.5 ‘Equity and social solidarity’, guiding principles cited in the Preamble to the European Convention on the Compensation of Victims of Violent Crimes 1983,6 figure at the core of a number of European domestic compensation systems,7 which provide for some form of redress to their nationals or, in more limited instances, to foreign nationals within their jurisdiction.8 Another important rationale for according special recognition to victims of terrorism has been expressed in terms of the need to mitigate harm inflicted by terrorism to collective interests, such as the stability and effectiveness of the political arena and the economic system. Governments have become increasingly concerned that major or prolonged terrorist attacks could disrupt financial and commercial systems and centres, and that affected parties, such as in the financial centres of London and New York, should not be left uncompensated.9 Despite these core arguments, in some countries, such as the UK and US, the development of avenues to allow for special claims for terrorist victims’ redress has met with considerable scepticism, although the collective nature of the threat and serious and prolonged scale of losses has encouraged a more expansive reaction in Northern Ireland.10 A possible reason for relatively weak concern in Great Britain over the matter of victims of terrorism could be that the number of deaths directly attributable to terrorist incidents between 1969 and 1998 amounted to only 121,11 whereas the equivalent figure for Northern Ireland was 3,636.12 From 2001 to 2013, there were 62 deaths in Great Britain (including suicide

5

6 7

8 9 10 11 12

See further A Pemberton,‘Needs of victims of terrorism’ in R Letschert, I Staiger, and A Pemberton (eds), Assisting Victims of Terrorism: Towards a European Standard of Justice (Springer, Heidelberg, 2010). However, a distinct aspect of protection of terrorism victims may be the support of officers of the state: L’s Application [2009] NIQB 67, para 10 (described below). ETS 116. The public might be termed tertiary victims: R Letschert, I Staiger, and A Pemberton (eds), Assisting Victims of Terrorism: Towards a European Standard of Justice (Springer, Heidelberg, 2010) 19–20. By art 3b, compensation shall be paid only to 'nationals of all member States of the Council of Europe who are permanent residents in the State on whose territory the crime was committed'. See for example J Mueller and MG Stewart, ‘Terrorism and counterterrorism in the US: the question of responsible policymaking’ (2014) 18 International Journal of Human Rights 228. See C Walker, Terrorism and the Law (Oxford University Press, Oxford, 2011) ch 10. Home Office and Northern Ireland Office, Legislation Against Terrorism (Cm 4178, London, 1998) para 2.2. D McKittrick, S Kelters, B Feeney, and C Thornton, Lost Lives (Mainstream, Edinburgh, 1999). 283

Ilaria Bottigliero, Lyal S Sunga, and Clive Walker

bombers) and 68 in Northern Ireland.13 Thus, the bureaucratic costs of a special scheme catering to such small numbers in Great Britain could be considered by some constituencies to be a waste of resources. Other arguments that militate against special recognition of terrorism victims, at least in the UK, include the imperfect state duty to protect life under Article 2 of the ECHR14 and a growing hostility to a ‘compensation culture’.15 An even more compelling argument against taking stronger action is that harm inflicted by terrorism ultimately results from some sort of crime such that ‘normal’ criminal injury compensation schemes in principle should suffice to address the issue, for example, the Criminal Injuries Compensation Authority in Britain and the Compensation Agency for Northern Ireland. The Criminal Injuries Compensation Authority, covering Great Britain, pays monetary compensation to individuals who have been physically or mentally injured because of a violent crime. The scheme,16 which can be accessed by claimants free of charge, was set up in 1964 and is currently governed by the Criminal Injuries Compensation Act 1995. Awards range from £1,000 to a ceiling of £500,000. Claims must normally be based on crimes reported to the police, but a conviction is not necessary. The Compensation Agency for Northern Ireland follows very similar rules and procedures for the scheme under the Criminal Injuries Compensation (Northern Ireland) Order 2002, which operates according to the Northern Ireland Criminal Injuries Compensation Scheme 2009.17 Are these systems really sufficient to deliver justice to the victims of terrorism? Many individual victims of terrorism have made claims under these schemes, but the schemes have been criticised as dilatory and ungenerous. This point has been voiced especially by victims of mass attacks, where multiple and complex claims have been lodged around the same time, such as those relating to the 7 July 2005 attacks on London’s public transport system.18 In addition, these systems feature several limitations and exclusions. One limitation has been to exclude claims brought by anyone with a criminal record. Given that a person’s criminal record may be entirely irrelevant to the legitimacy of their claim for compensation arising from a terrorist incident, such limitation seems to mete out unfair treatment. Other limits relate to terrorism inflicted overseas on British citizens, as well as exclusion of loss or damage to property and losses suffered by corporate bodies.

13

14

15

16

17 18

284

See CP Walker, The Anti-Terrorism Legislation (3rd edn, Oxford University Press, Oxford, 2014) 27. The Criminal Injuries Compensation Authority resolved 42,859 cases in that single period: Annual Report and Accounts 2013–14 (2013-14 HC 155) 9. See Osman v United Kingdom, App No 23452/94, 1998-VIII; McKerr v United Kingdom, App No 28883/95, 2001-III; Jordan v United Kingdom, App No 24746/94, ECHR 2001-III; Van Colle v United Kingdom,App No 7678/09, 13 November 2012; McCaughey and others v United Kingdom,App No 43098/09, 16 July 2013. See House of Commons Constitutional Affairs Committee (2006) Compensation Culture (2005–2006 HC 754) para 111; Lord Young, Common Sense, Common Safety (Prime Minister’s Office, London, 2010) 19. See Ministry of Justice, The Criminal Injuries Compensation Scheme 2012. Available at: www.gov.uk/government/uploads/system/uploads/attachment_data/file/243480/978010851211 7.pdf accessed 6 November 2014. Available at: www.dojni.gov.uk/agencies/compensation-tariff-scheme-legislation-2009.pdf accessed 6 November 2014. Home Office, Addressing Lessons from the Emergency Response to the 7 July 2005 London Bombings (London, 2006) paras 30–35.

The victims of terrorism

Perhaps because of some of these shortcomings, the criminal compensation scheme in Norway was amended following the attacks by Anders Breivik, which killed 77 people on 22 July 2011.19 The Standing Justice Committee of Norway’s Parliament (Storting), together with the Ministry of Justice and Emergency Planning, decided to increase the level of compensation as well as the number of eligible victims. Specifically, the Committee set the sum of Norwegian Krone (NOK) 4.75 million (about US$853,800) as the upper amount of compensation for which a single individual would be eligible, raising it from NOK 3.1 million (about US$557,200).20 Despite the drawbacks described above, related to the inadequacy of domestic compensation schemes, the plight of victims of terrorist incidents has received increasing recognition globally. The internationalisation of terrorism together with the reach of global news media outlets, have drawn greater public attention to victims and their suffering. Greater awareness of terrorist incidents and their consequences have underlined the realisation also that increasingly anyone anywhere can fall victim to such violence. In certain instances, victims of terrorism have even been identified as heroes, for example, as seen in the US with regard to 9/11 victims (described later in this chapter) or in Israel, where Yom Hazikaron (Day of Remembrance for Israeli Fallen Soldiers and Victims of Terrorism) was extended in 2007 to civilian victims.21 Finally, it may be noted that the private insurance market does not offer an alternative solution since holiday travel or property insurance for terrorism risk may either be unavailable or only on offer at exorbitant cost. In the light of these shortcomings, the following section overviews and analyses selected domestic compensation schemes that are more specifically designed to aid victims of terrorism in order to assess their scope and effectiveness.

State compensation schemes for terrorist incidents Many Western countries have now instituted compensation schemes for victims of terrorist incidents. They vary greatly in their coverage of the kinds of losses and the scale of compensation. The prime examples used here will be from the UK and US; the picture is variable in Europe, even though a compensation scheme for personal loss from violent crime within EU states is now required by the EU Council Directive 2004/08/EC relating to Compensation to Crime Victims. Beyond Europe, many states do not have any compensation schemes or, if they do, these do not recognise non-nationals or they offer very modest payments.22

Airline insurance A prominent but interim form of support that developed after the 9/11 attacks related to airlines. As a result of the reassessment of risk immediately after 9/11, it was reported that insurance costs for airlines had risen to unaffordable rates or that sufficient cover was

19 20

21 22

See 22 July Commission, Report (Oslo, 2012). W Zeldin,‘Norway: Crime victims’ compensation to be increased after July 2011 massacre’, Global Legal Monitor (Online, 1 March 2012). Available at: www.loc.gov/lawweb/servlet/lloc_news? disp3_l205403009_text accessed 11 November 2014. Memorial Day Law for the Fallen of Israel’s Wars 1963, as amended. See Pike v Indian Hotels [2013] EWHC 4096 (HC). 285

Ilaria Bottigliero, Lyal S Sunga, and Clive Walker

unavailable.23 With the prospect that airlines would have to be grounded, some governments arranged for the reinsurance of commercial coverage. The US Government used the Air Transportation Safety and System Stabilization Act 200124 to reduce the liability of airlines, under Title IV, by placing a cap on claims and also providing an alternative ‘no-liability’ September 11th Victim Compensation Fund specifically for the victims of the 11 September attacks.25 Title I of the Act also allowed the Air Transportation Stabilization Board to issue up to $10 billion in federal credit guarantees to assist airlines further. Outright compensation from a pool of $5 billion was given under Title V for the closure of airspace and loss of income from reduced air traffic to the end of 2001. Insurance aspects were dealt with under Title II of the Act by a government offer to reimburse airlines for increased premiums for 180 days and by taking over the responsibility for actual losses caused by terrorism within this period. In the UK, the government arranged to offer insurance from 24 September 2001 through the Troika Insurance Company Limited.26 Troika was set up by private brokers, although the Treasury kept a controlling share. The company offered cover for third-party war and terrorism insurance for liabilities greater than $50 million (since this minimal level of cover remained available), with a limit of $2 billion. At the same time,Troika purchased from the government 100 per cent reinsurance against all policies and paid the government for this reinsurance cover. Initially, the government waived any premium, but it later charged premiums to Troika based on passenger numbers (and also after August 2002 based on the amount of coverage). The European Commission issued guidelines on the level of these premiums to avoid unnecessary government subsidies.27 In so far as the premiums failed to cover any losses, the government agreed to provide an indemnity (an eventuality that did not arise). The scheme ceased to issue new policies on 31 October 2002, by which time private coverage had become available again.

Commercial property loss Terrorists have sometimes targeted businesses and corporate entities in order to drive away foreign investment, destroy business confidence and destabilise the economy.28 As a result, financial and media concentrations, such as the City of London, have become prized targets for terrorism. The Provisional IRA attacked City of London targets with two large truck-bombs at St Mary Axe in 1992 and Bishopsgate in 1993. Four people died and hundreds were injured. The financial costs were estimated at more than £300 million. When the first IRA ceasefire ended in February 1996, the bombing of economic targets resumed with bombs at Canary Wharf, London, and the Arndale Shopping Centre, Manchester.29

23 24 25 26 27 28 29

286

See J Doran, ‘Wartime laws to help airlines’ The Times (London, 21 September 2001) 1. PL 107-42. See JW Stempel, ‘The insurance aftermath of September 11th’ (2002) 37 Tort & Insurance Law Journal 817. See 28 CFR Pt104, 66 CFR 66274, 21 December 2001. See C Walker, ‘Political violence and commercial risk’ (2003) 56 Current Legal Problems 531. European Commission (2002), Guidance (C(2002)591 final, 27 February 2002) and Communication of the 2 July 2002 (COM (2002) 320 final. See S Graham (ed.), Cities, War and Terrorism (Blackwell, Oxford, 2004); C Walker,‘Political violence and commercial risk’ (n 26). T Craig, ‘Sabotage! The origins, development and impact of the IRA’s infrastructural Bombing Campaigns 1939–1997’ (2010) 25 Intelligence and National Security 309.

The victims of terrorism

The damage caused by the bombing at St Mary Axe spurred a crisis in the reinsurance market such that a model terrorism exclusion clause issued by the ABI to its members on 12 November 1992 confirmed that, after 1 January 1993, terrorism cover for commercial property would no longer be available. In response, on 21 December 1992, the Secretary of State for Trade and Industry announced that the government would act as insurer of last resort through a new reinsurance company, Pool Re, managed and staffed by insurance industry personnel. Insurers within the scheme are obliged to offer terrorism cover for commercial properties in return for an additional premium, which is remitted to Pool Re. The government agrees to meet 90 per cent of any claims not covered by the fund, and insurance companies meet the remaining 10 per cent. Later revisions to the scheme have applied it to residential buildings owned by commercial companies and insured for a sum in excess of £2.5 million. It was also extended from ‘fire and explosion’ to an ‘all-risks basis’, to ensure cover for commercial property against biological or nuclear contamination, impact by aircraft or flood damage. The scheme is now based on the Reinsurance (Acts of Terrorism) Act 1993, and fleshed out in the Retrocession Agreement between the Secretary of State for Trade and Industry and the Pool Reinsurance Company. Section 2 outlines that the reinsurance arrangements apply to loss or damage (direct and consequential) to property in Great Britain resulting from acts of terrorism. The geographical bounds are confirmed by section 3(2); Northern Ireland is omitted because alternative arrangements apply. By section 2(2), ‘acts of terrorism’ means ‘acts of persons acting on behalf of, or in connection with, any organisation which carries out activities directed towards the overthrowing or influencing, by force or violence, of Her Majesty’s government in the United Kingdom or any other government de jure or de facto’. This definition delimits the perpetrator to an ‘organisation’, and the purpose is confined to the terrorising of governments and not the public.30 In practice, the application of the definition to a given event is settled by a certificate from HM Treasury. The scheme has built up a financial reserve that was more than adequate to meet the commercial losses from the bombings in 1996. A total of 13 incidents have been certified, with losses of over £600 million.31 Corresponding problems for the US commercial property insurance market resulted in the passage of the US Terrorism Risk Insurance Act 2002, which reflects many similar features.32 Several European countries have also initiated public–private schemes of insurance or reinsurance.33

30

31 32

33

The issuance of a model terrorism exclusion wording by the ABI to its members on 12 November confirmed that, effective from the 1 January 1993, cover was no longer to be available to businesses (‘On whom the bomb falls’, ReActions (London, Jan 1993) 6; S Shapiro, ‘UK reinsurers exclude terrorist acts’ (1992) 26 Issue 48 Business Insurance (23 November) 53–4; G Souter, ‘London reinsurers expect restrictions due to catastrophes’ 26 Issue 43 Business Insurance (26 October) 10–6). The definition in the 1993 Act addressed that exclusion clause. The narrower definition was commented upon as attractive in later debates on what became the broader definition in the Terrorism Act 2000, s 1: Hansard (House of Commons) vol 341 col 186 14 December 1999, Simon Hughes; Hansard (House of Commons) vol 353 col 632 10 July 2000, John McDonnell. Available at: www.poolre.co.uk/history.html accessed 11 November 2014. S2600, PL 107–297. See JW Stempel,‘The Insurance Aftermath of September 11’ (2002) 37 Tort & Insurance Law Journal 817; RH Jerry II, ‘Insurance, Terrorism, and 9/11: Reflections on Three Threshold Questions’ (2002–2003) 9 Connecticut Insurance Law Journal 95; ME Boardman, ‘Known Unknowns: The Illusion of Terrorism Insurance’ (2005) 93 Georgetown Law Journal 783; AB Marks, ‘Under attack: Terrorism risk insurance regulation’ (2011) 89 North Carolina Law Review 387; L Dixon and others, The Future of the Terrorism Risk Insurance Act (RAND, Santa Monica, 2014). B Koch (ed.), Terrorism,Tort Law and Insurance (Springer, Vienna, 2004). 287

Ilaria Bottigliero, Lyal S Sunga, and Clive Walker

By way of assessment, the main objectives of the scheme have been achieved, as evidenced by the fact that affected commercial enterprises did not vacate the City of London and that the premiums charged to larger commercial enterprises were sustainable for them and for the taxpayer. Principal criticisms of these government reinsurance schemes include, first, the expense of taking up terrorism coverage. Availability at a substantial premium means that many property owners, especially small and medium enterprises, decide against coverage, leaving localities vulnerable to a state of disrepair following an attack. Second, the private insurance path accords priority to private over public recovery. Consequently, where loss occurs to an important public space, such as a shopping centre, state grants will still be required to enable recovery of non-commercial property, utilities, and policing costs. Thus, losses most evident to the public are the very ones that are not redressed, whereas the occupants of central city business zones typically are in a position to secure the greatest protection at potential cost to the taxpayer.34 A third problem related to public–private insurance schemes is the disruption of private insurance and lack of incentives to resurrect a commercial market.35

Disaster relief Some of the funds for disaster recovery can apply to the mitigation of terrorism damage, especially for public sector infrastructure. The ‘Bellwin’ scheme of emergency financial assistance for local authorities in the UK,36 for example, was applied to help the residents of Docklands, following the IRA attack of 1996, although the grant covered just £6 million out of £70 million of repair costs. A more complex picture has developed in the US, where both Federal and State schemes of disaster relief must be taken into account. The DHS and FEMA present a much more prominent and extensive structure than UK equivalents, mainly reflecting the greater frequency and scale of natural disasters in the US. As for business and property loss, FEMA, acting under the Robert T. Stafford Disaster Relief and Emergency Assistance Act 1988,37 coordinates emergency planning and response and issues Federal disaster grants to assist State governments. Yet, these US models have proved far from adequate in terms of prompt and effective delivery, as the experience of disaster relief efforts following Hurricane Katrina demonstrated.38 Added to these standing schemes is the September 11th Victim Compensation Fund under the Air Transportation Safety and Safety Stabilization Act 2001,Title IV. The Fund offered nofault Federal compensation on a generous scale for personal and economic loss and was administered through a Special Master. It was justified as a means by which to overcome the hurdles of civil litigation and to send a strong message of social solidarity with victims and also represented a collective determination to recover from ‘an insult to the body politic’ and from ‘exposed feelings of vulnerability’.39 The Fund successfully averted most (but not all) private litigation. However, even its Special Master expressed doubts as to whether this approach

34 35 36 37 38 39 288

R Ericson and A Doyleb,‘Catastrophe risk, insurance and terrorism’ (2004) 33 Economy and Society 135. E Michel-Kerjana and PA Raschkyc, ‘The effects of government intervention on the market for corporate terrorism insurance’ (2011) 27 European Journal of Political Economy S122. For the UK ‘Bellwin scheme’, see: Local Government and Housing Act 1989, s 155; M Sandford, The Bellwin Scheme (SN/PC/00643, House of Commons Library, London, 2014). 42 USC ss 5121–5206. See DA Farber and J Chen, Disaster Law and Policy (Aspen, Frederick MD, 2009). MS Shapo, Compensation for Victims of Terror (Oceana, New York, 2005) xvi.

The victims of terrorism

should be repeated since it unduly discouraged private planning for the risks from terrorist incidents and the assumption of individual responsibility for damage.40

Property loss compensation for individuals Two schemes in Northern Ireland allow for the grant of state compensation to individuals who suffer property losses from terrorism. The main aim of these schemes, which have existed for many decades, has been to avert the widespread destruction of private property or attacks on key infrastructure. The schemes reflect a protective purpose in terms of ensuring community resilience through physical restoration. However, this approach might be criticised for squeezing the private insurance market.41 The first compensation scheme arises under the counter-terrorism legislation for action taken under the legislation. Under the Justice and Security (Northern Ireland) Act 2007, section 38 and schedule 4, paragraph 1, compensation can be provided wherever ‘real or personal property is taken, occupied, destroyed or damaged, or… any other act is done which interferes with private rights of property’ in exercising powers under sections 21–32, such as requisitions or defensive works. Since the ‘Peace Process’ of 1998, many military and security installations have been dismantled, and payments have been diminishing as a consequence.42 An additional ‘Terrorism Act Compensation Scheme’, administered by the Compensation Agency, deals with property damage from search operations conducted under special powers. Next, the Criminal Damage (Compensation) (Northern Ireland) Order 197743 contains a much more ambitious scheme of property compensation, without counterpart in Britain. The scheme reflects a long tradition of state compensation for criminal damage to private property arising from political violence, based upon social solidarity and reflecting the unavailability or unaffordability of private insurance coverage.44 Under the Order, the Secretary of State is liable to pay for financial loss above £200 in respect of property affected by damage as a result of an act committed maliciously by a person acting on behalf of, or in connection with, an unlawful association or any malicious and wanton damage caused to agricultural buildings and property or to community (mainly Unionist) halls. The scheme is not confined to commercial property, but most claims have related to commercial or communal property since they have been the predominant (and uninsurable) targets. Exclusions arise for failure to take reasonable precautions, for any unlawful use of the property or provocative or negligent behaviour, and for involvement in an unlawful association or engagement in terrorist activity, even if unrelated to the damage.45 Substantial amounts have been paid over many years under this scheme: in 1972 to 1973, the figure was £26.6 million, in 1982 to 1983 £31.1 million, and in 1992 to 1993 £75.9 million (the highest annual total).

40 41 42 43 44

45

KR Feinberg, What is Life Worth? (Public Affairs, New York, 2005) 178. See further Report of a Committee to Review the Principles and Operation of the Criminal Injuries to Property (Compensation Act) (Northern Ireland) (HMSO, Belfast, 1977). For details, see C Walker, Terrorism and the Law (Oxford University Press, Oxford, 2011) ch 11. SI 1977/1247, SI 2009/884. J Waddell, Report of a Committee to Review the Principles and Operation of the Criminal Injuries to Property (Compensation Act) (Northern Ireland) (Belfast, 1971). The position has not changed much since that time: Northern Ireland Affairs Committee, The Compensation Agency (2003-04 HC 271) para 37. See Re Mahood [2009] NIQB 100. 289

Ilaria Bottigliero, Lyal S Sunga, and Clive Walker

Physical protection for individuals In cases of specific or known terrorist threats to identified individuals, states have a duty to protect their citizens and will also have a policy interest in ensuring the protection of public office-holders in so far as they are the targets.46 A prominent example is Salman Rushdie, who has received special police protection since the publication in 1998 of his book, The Satanic Verses, resulted in the issuance of a fatwa from Ayatollah Ruhollah Khomeini on 14 February 1989.47 Another example arose under the Northern Ireland’s Key Persons Protection Scheme, funded by the Northern Ireland Office.48 The scheme was replaced by the Limited Home Protection Scheme in 2006, which has received less funding.49 Under the scheme, the selection of subjects involves ‘individuals whose death or injury as a result of terrorist attack could damage or seriously undermine the democratic framework of government, the effective administration of government and/or the criminal justice system or the maintenance of law and order’.50 Where the threat to an individual is assessed as severe or substantial and where he or she also falls within a list of specified occupations or public appointments, such individual is automatically admitted to the Scheme. Otherwise, the Minister exercises discretion, subject to advice from the Northern Ireland Committee on Protection.

Injury sustained by terrorism abroad Finally, a more recently developed special scheme in the UK relates to the victims of terrorism abroad. Between 2001 and 2008,51 141 British citizens died as a result of terrorist incidents; however, the Criminal Injuries Compensation Scheme does not apply to terrorism inflicted overseas on British citizens. Sustained lobbying following the deaths arising from terrorism in Bali in 2002, Sharm el-Sheikh in 2005, and Mumbai in 2008,52 eventually prompted a change in policy by way of ‘the Victims of Overseas Terrorism Compensation Scheme’, which was added to the Crime and Security Act 2010 and brought into force in 2012. By section 47, the Secretary of State for Foreign and Commonwealth Affairs may make arrangements for payments for injuries and fatalities arising from a ‘designated’ terrorist act occurring outside the UK on or after 18 January 2010 (the date when the scheme was first announced), which, in the view of the Secretary of State, constitutes ‘terrorism’, and in respect of which, having regard to all the circumstances (such as whether a Foreign Office travel advisory had warned against a visit), the Secretary of State considers that it would be appropriate to designate it as such. For injuries sustained in the period between 1 January 2002 and the coming into effect of the Act, the government conceded that ex gratia payments could be

46

47 48 49 50 51 52 290

In L’s Application [2009] NIQB 67 [10], it was stated that the purpose of the Limited Home Protection Scheme (described below) ‘is to protect those individuals whose death or injury as a result of terrorist attack could damage or seriously undermine the democratic framework of government, the effective administration of government and/or the criminal justice system or the maintenance of law and order.’ See S Rushdie, Joseph Anton (Jonathan Cape, London, 2012). See Northern Ireland Human Rights Commission, Compatibility of Key Person Protection Scheme with the ECHR (Belfast, 2002). Hansard (House of Commons) vol 487 col 22w (26 January 2009). Re L [2009] NIQB 67 [10]. Hansard (House of Commons) vol 481 col 249WH (29 November 2008). See Pike v Indian Hotels [2013] EWHC 4096 (HC).

The victims of terrorism

made for continuing injuries (but not deaths). Eight attacks had been designated as ‘terrorism’ under the Act by the time of writing, ranging from bombings in Bali in 2002 to the hostage crisis that took place at the gas plant at In Amenas in Algeria, bordering Libya, in 2013.53 Eligibility to apply under section 49 may be determined by nationality, place, or length of residence, and any other factor considered appropriate. Procedures and payments mirror the standard Criminal Injuries Compensation Scheme. This Victims of Overseas Terrorism Compensation Scheme should be considered a welcome development. However, given that only a third of travel insurance policies typically cover terrorism risk and that 24 per cent of travellers do not purchase travel insurance,54 it is surprising that encouragement of insurance coverage, so prominent in the commercial sphere, did not figure as part of the reform package. The scheme embodies some advantages over legislation in many European countries.55 However, it is less generous than the US Antiterrorism and Effective Death Penalty Act of 1996,56 Title II of which provides for compensation for victims of terrorism, including terrorism committed abroad, under the International Terrorism Victims Compensation Program – a programme implemented by the Terrorism and International Victims Unit in the US Department of Justice’s Office for Victims of Crime.57 The Office administers other forms of compensation including Crisis Response Grants and Consequence Management Grants (to rebuild capacities and help victims to adapt), Criminal Justice Support Grants (to allow victim’s participation in proceedings), Crime Victim Compensation Grants (to reimburse expenses) and Training and Technical Assistance.

Private law solutions In contrast to the foregoing compensation schemes, civil litigation has the advantage of giving victims their day in court and holding out the prospect of exhausting the resources of terrorists. On the other hand, civil litigation inevitably ties up claimants in the complexity, delay, and expenses of the court system, while the financial assets of terrorists may in reality prove very limited or very difficult to access. At the same time, victims might sometimes consider that a public accounting of the events and responsibilities surrounding a particular terrorist incident is sufficient recompense for the effort, in effect through ‘a litigator’s form of truth

53

54

55

56 57

See further Criminal Injuries Compensation Authority, A guide to the Victims of Overseas Terrorism Compensation Scheme 2012. Available at: www.gov.uk/government/uploads/system/uploads/ attachment_data/file/230117/victim-of-overseas-terrorism-scheme-guide-2012.pdf accessed 11 November 2014. Hansard (House of Commons) Public Bill Committee col 446 (23 February 2010). Available at: http://abta.com/news-and-views/press-zone/numbers-travelling-abroad-uninsured-on-the-rise accessed 11 November 2014. See HJ Albrecht and M Kilching,‘Victims of terrorism protection’ in M Wade and A Maljevic (eds), A War on Terror? (Springer, New York, 2010) 239. Some other EU states already had protection for victims of terrorism abroad (especially in France under Le Fonds de Garantie des victimes des actes de Terrorisme et d'autres Infractions: Laws no 86-1020 of 9 September 1986 and 90-58912 of 6 July 1990) while some other (such as Germany: www.un.org/victimsofterrorism/en/memberstates/germany, accessed 27 December 2014) have reportedly also taken up the idea. For a survey, see R Letschert and K Ammerlaan, ‘Compensation and reparation for victims of terrorism’ in R Letschert, I Staiger, and A Pemberton (eds), Assisting Victims of Terrorism:Towards a European Standard of Justice (Springer, Heidelberg, 2010) 231–7. 42 USC s 10602, as amended. Available at: www.ovc.gov/help/international.html accessed 11 November 2014. 291

Ilaria Bottigliero, Lyal S Sunga, and Clive Walker

commission’.58 Aside from victim-oriented advantages and disadvantages, an additional disadvantage is that this tactic when used against state-sponsors of terrorism may damage what the state views as the public interest by compromising foreign relations and diplomacy.59 In the context of counter-terrorism operation, civil litigation against one’s own government has usually arisen from the application of excessive or misdirected lethal force applied by the security forces, such as the shooting of Jean Charles de Menezes in 2005.60 Rather less straightforward has been to prove governmental fault for attacks by terrorists,61 although actions against private third parties, including airlines such as PanAm for the Lockerbie bombing62 or banks63 have achieved some success in the US. In Re Terrorist Attacks on September 11, 2001, relatives of victims sought damages from hundreds of defendants (mainly linked to Saudi Arabia) who funded charities, which allegedly helped Al Qa’ida.64 There have also been some civil actions directed against the alleged terrorists themselves. In the UK, the sole example arose out of the Omagh bombing, when victims were encouraged to mount civil claims against the alleged perpetrators.65 Controversially, the government took sides by granting special legal aid funding for victims but not for defendants.66 Civil terrorism litigation has been more pronounced in the US, as encouraged by four legal measures.67 First, the Alien Tort Claims Act of 1789 allows jurisdiction over torts committed by aliens in violation of the laws of nations or of a treaty.68 Second, the Antiterrorism Act of 1990 allows US citizens only affected by ‘an act of international terrorism’ except by a foreign state or official the right to seek threefold damages.69 Third, amendments in the Anti-terrorism and Effective Death Penalty Act 1996 to the Foreign Sovereign Immunities Act 1977 allow actions by US nationals for specified terrorism offences and remove immunity from those foreign states, which have been designated as sponsors of terror.70 The numerous suits under this measure have usually been followed by default judgments, which have been largely unenforceable because of the absence of seizable assets within the jurisdiction. Fourth, the Racketeer Influenced and Corrupt Organizations Act 197071 was amended by the USA PATRIOT Act 2001, section 813, so as to include various acts of terrorism within the definition of racketeering as a prelude to civil and criminal litigation under the 1970 Act.

58 59 60 61 62 63 64 65 66 67 68 69 70 71 292

R Wedgewood, ‘Civil remedies and terrorism’ in J Norton Moore (ed.), Civil Litigation Against Terrorism (Carolina Academic Press, Durham, 2004) 170. See J Norton Moore (ed.), Civil Litigation Against Terrorism (Carolina Academic Press, Durham, 2004) 16 ( J Norton Moore), 147 ( J Goldsmith and R Goodman), 177 (R Wedgewood). See P Kennison and A Loumanksy, ‘Shoot to kill – understanding police use of force in combating suicide terrorism’ (2007) 47 Crime Law and Social Change 151. See Donaldson v Chief Constable of the Royal Ulster Constabulary (1990) 4 BNIL n 106 (QBD); Rush v Chief Constable of the PSNI [2010] NI Master 6. Re Lockerbie Air Disaster (1992) The Times 20 May (CA). See Linde v Arab Bank, New York Times 23 September 2014, A1; Weiss v National Westminster 768 F.3d 202 (2014). See G Sant,‘So banks are terrorists now?’ (2013) 45 Arizona State Law Journal 534. (2008) 538 F 3d 71. See Breslin v McKenna [2008] NIQB 50 and [2011] NICA 33; Breslin v Murphy [2013] NIQB 35. Murphy and Daly v Lord Chancellor [2008] NICA 34. See J Norton Moore (ed.), Civil Litigation Against Terrorism (Carolina Academic Press, Durham, 2004). 28 USC s 1350. 18 USC s 2333. 28 USC s 1605(a)(7). See MS Shapo, Compensation for Victims of Terror (Oceana, NewYork, 2005) ch 3. 18 USC s 1961.

The victims of terrorism

Victims’ redress beyond domestic schemes Many countries have set up compensation schemes that in some way provide a measure of redress for victims of terrorism-related incidents. One of their shortcomings is that there has been considerable variation in the coverage and effectiveness of such schemes such as the Antiterrorism Act of 1990. Therefore, the domestic application of victims’ redress could benefit from international guidelines drawing from best country practices, including the provision of compensation to nationals of other countries72 and non-monetary forms of redress.As discussed below, the question has been approached at the UN and in other intergovernmental fora.

UN The issue of the right to redress for victims of terrorist incidents began to gain momentum in 2004 with the Report of the United Nations High-level Panel on Threats, Challenges and Change, which referred to the need to develop a comprehensive strategy against terrorism.73 More specifically, in a report of 2006, UN Secretary-General Kofi Annan observed that since victims of terrorism were denied their most fundamental human rights, protection of their rights had to be considered as an essential component of an effective counter-terrorism strategy.74 For a time, this interest seemed to stall, but encouraging developments have arisen out of certain recent UN Human Rights Council resolutions on terrorism and following the appointment of Ben Emmerson as the second UN Special Rapporteur on human rights and counter-terrorism. In resolution 19/19, adopted in 2012, on the protection of human rights and fundamental freedoms while countering terrorism, the Human Rights Council expressed its profound solidarity with victims of terrorism and their families. It further called upon states to ensure that any person whose human rights or fundamental freedoms have been violated has access to an effective remedy and that victims will receive adequate, effective, and prompt reparations where appropriate, including by bringing to justice those responsible for such violations.75 The Special Rapporteur put forward the ‘Framework principles for securing the human rights of victims of terrorism’ in his first annual report,76 and urged states to recognise that terrorist violence perpetrated by non-state actors violates the human rights of victims. He emphasised that international human rights law requires a response in terms of victims’ protection even if ‘a conflict situation has escalated to the level of a full-blown insurgency or internal armed conflict’ and even if the injury arises from non-state actors.77 The Special Rapporteur goes on 72 73 74 75 76

77

Even the European Convention on the Compensation of Victims of Violent Crimes 1983 has been ratified by just 25 states. UN High-Level Panel on Threats, Challenges and Change, A More Secure World: Our Shared Responsibility (A/59/565, 2 December 2004) para 38. See Uniting Against Terrorism: Recommendations for a Global Counter-terrorism Strategy (A/60/825, 27 April 2006) paras 6, 118. Human Rights Council, Protection of human rights and fundamental freedoms while countering terrorism (A/HRC/19/L.25/Rev.1, 23 March 2012) paras 4, 9. Ben Emmerson, Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism: Framework principles for securing the human rights of victims of terrorism (A/HRC/20/14, 4 June 2012). Ibid para 12. 293

Ilaria Bottigliero, Lyal S Sunga, and Clive Walker

to argue that victims of terrorism should be recognised in international law and that this principle should be enshrined in a specific international instrument on the rights of victims of terrorism.78 The Special Rapporteur also called for the victims of terrorism to be recognised in domestic law not only by effective criminal law provisions and participation in legal processes and official investigations but also by respect for privacy against unjustified media intrusion, the right to form representative organisations, the right to reparation, which includes financial compensation, and medical and social rehabilitation, and the prohibition of life insurance policies that exclude terrorism liability. Thus, the Special Rapporteur’s framework principles constitute an encouraging and concrete contribution towards fuller recognition of the right of victims of terrorist incidents to redress.

Regional developments At the regional level, the Council of Europe adopted a Convention on the Prevention of Terrorism in 2006,79 as well as Guidelines on the Protection of Victims of Terrorist Acts.80 Article 13 of the Council of Europe Convention obliges states parties to adopt ‘such measures as may be necessary to protect and support the victims of terrorism that has been committed within its own territory’. Such measures may include, ‘through the appropriate national schemes and subject to domestic legislation, inter alia, financial assistance and compensation for victims of terrorism and their close family members’. The guidelines emphasise the duty of the state to investigate terrorist incidents and prosecute suspected perpetrators as well as to make sure that victims can access justice and receive timely compensation. By contrast, while the Organization of American States adopted the Inter-American Convention against Terrorism in 2002, that instrument does not mention the right of victims to redress,81 and the same is true of ASEAN’s Convention on Counter Terrorism 2007. Next, in Article 23(2)(b) of the African Charter on Human and Peoples’ Rights, states must ensure that ‘their territories shall not be used as bases for subversive or terrorist activities against the people of any other state party to the present Charter’.82

International Criminal Tribunals and the ICC More concrete developments towards affording greater participation of victims in criminal proceedings have become evident in both international criminal law and transnational criminal law. The ICC Statute83 ensures victims a central role in the proceedings with the support of a Victim and Witnesses Unit. Victims are entitled to access a Trust Fund, which was set up specifically for victims and their families.84 Victims can also seek and obtain reparations directly from the ICC and, in instances where a guilty verdict is sustained, the ICC can determine the scope and extent of damages, losses, and injuries suffered by victims on the basis of principles relating to reparations, including restitution, compensation, and rehabilitation. Since the ICC’s 78 79 80 81 82 83 84

294

Ibid para 14. CETS 196. Council of Europe Committee of Ministers, Guidelines on the Protection of Victims of Terrorist Acts (Strasbourg, 2005). OAS Treaty A-66. 1520 UNTS 217 (‘Banjul Charter’). 2187 UNTS 90. Rome Statute, arts 75 et seq. See L Moffat, Justice for Victims before the International Criminal Court (Routledge, Basingstoke, 2014).

The victims of terrorism

jurisdiction covers aggression, genocide, war crimes, and crimes against humanity, any terrorist instance involving Rome Statute crimes could fall within ICC jurisdiction. The ad hoc international criminal tribunals have been criticised for having contributed little towards more effective redress for victims.85

Conclusion Most states have failed to grapple comprehensively with compensation and financial redress for the victims of terrorism. The wider interests of victims of terrorism – justice, transparency and closure – have also been addressed in a fragmented fashion. Attempts at comprehensive responses along the lines of the South African Truth and Reconciliation Commission under the Promotion of National Unity and Reconciliation Act 1995 have rarely been delivered to the satisfaction of all parties to a former conflict.86 The international community should engage more meaningfully in efforts to develop and implement principles to guide redress for victims of terrorist attacks which could be used around the world. A more global approach would fall more closely in line with former UN Secretary-General Kofi Annan’s call upon states ‘to put in place a system of assistance that would promote the rights of victims and their families, by doing everything possible to reintegrate them into society and to facilitate their transition back to a dignified and fruitful life’.87 For a start, international principles could draw upon the already-accepted reparation principles for victims of similar crimes, such as the UN Basic Principles and Guidelines on the Right to Reparations for Victims of Gross Human Rights and Humanitarian Law Violations,88 the Joinet Principles,89 and the UN Declaration of Basic Principles of Justice for Victims of Crimes and Abuse of Power,90 as well as regional best practices. Important elements drawn from these instruments include the basic principle that reparations should take the form of restitution, compensation, rehabilitation, satisfaction, and guarantees of non-repetition, and the recognition of a state obligation to provide redress. Additionally, compensation funds should be designed broadly enough to encompass a range of possibilities for restorative justice, such as official apology

85 86

87 88

89

90

I Bottigliero, Redress for Victims of Crimes under International Law (Nijhoff, Dordrecht, 2004) 196 et seq. Compare in the UK, Report of the Bloody Sunday Inquiry (2010–12 HC 29). See AR Chapman and HVan Der Merwe (eds), Truth and Reconciliation in South Africa: Did the TRC Deliver? (University of Pennsylvania Press, Philadelphia, 2008); P McAuliffe, Transitional Justice and Rule of Law Reconstruction: A Contentious Relationship (Routledge, Basingstoke, 2013); S Loytomaki, Law and the Politics of Memory: Confronting the Past (Routledge, Basingstoke, 2014). See Uniting Against Terrorism: Recommendations for a Global Counter-terrorism Strategy (A/60/825, 2006), para 14. See UN Commission on Human Rights, Question of the Human Rights of All Persons Subjected to Any Form of Detention or Imprisonment, (E/CN.4/Sub.2/1997/104, 1997); M Bassiouni (Special Rapporteur), Civil and Political Rights, Including Questions of: Independence of the Judiciary, Administration of Justice, Impunity (E/CN.4/2000/62, 2000). See UN Commission on Human Rights, The Administration of Justice and the Human Rights of Detainees, (E/CN.4/RES/1985/23, 1985); L Joinet, Question of the impunity of perpetrators of human rights violations (civil and political): Revised final report prepared by Mr Joinet pursuant to Sub-Commission decision 1996/119, (E/CN.4/Sub.2/1997/20/Rev.1, 1997). UN Declaration of Basic Principles of Justice for Victims of Crimes and Abuse of Power, UN General Assembly Res 40/34 (29 November 1985). 295

Ilaria Bottigliero, Lyal S Sunga, and Clive Walker

(where appropriate), rehabilitation, recognition and remembrance,91 and public tributes. Discovery of the truth about terrorist incidents should be facilitated by conducting inquiries and by the timely release of documents relating to terrorist incidents. Finally, the state must recognise its responsibilities to address the consequences of terrorism by a thorough and effective investigation of the incidents, and by prosecuting and punishing the perpetrators. The recognition and fair treatment of victims of terrorism should not be considered exclusively within security and counter-terrorism debates, since it is fundamentally a human rights concern, as the UN Human Rights Council has pointed out in numerous resolutions. Thus, the migration of the matter of the rights of victims of terrorist incidents from mainly criminal law and security approaches to the human rights arena, rich with norms and implementation mechanisms, seems to offer renewed hope for better redress for victims of terrorism.

91 296

See for example K Bloomfield, We Will Remember Them (Northern Ireland Office, Belfast, 1998).

20 Evidence of the impact of counter-terrorism legislation Tim Legrand, Simon Bronitt, and Mark Stewart1

Introduction Ultimately, it will not be the CT Laws that deter and prevent terrorism, if that outcome is realistic at all, but much broader and deeper elements and dynamics of Australian and international society that include as just one formal part the counter-terrorism laws.2 In 1972, two leading criminologists of their generation, Norval Morris and Gordon Hawkins, published a best-selling paperback, The Honest Politician’s Guide to Crime Control.3 Their criminological manifesto was intended to serve as a guide for politicians and public officials responsible for developing and administering criminal justice policy in America. It called, in simple terms, for a more-principled, less-politicised approach to law and order. In addition to promoting for a more humane and liberal criminal law, the authors called for more research examining the effectiveness of crime prevention and law enforcement policies. This would require official data, which was traditionally held tightly by police and other state agencies, to be made more freely available to researchers. From today’s vantage point, the manifesto of the 1970s could not stem the rising crime rates and the ‘punitive turn’ in criminal justice policy in both the US and UK in the decades that followed.4 Four decades after the publication of The Honest Politician’s Guide to Crime Control, this chapter returns to the idea of developing a new manifesto in the field of counter-terrorism law: one which respects the rule of law and fundamental human rights but also takes seriously the challenge to obtain the best available evidence of counter-terrorism law’s impact and effectiveness.

1 2 3 4

The authors would like to thank Mr Michael Potts, Research Assistant at the TC Beirne School of Law, for his editing and research assistance. B Walker, Independent National Security Legislation Monitor: Annual Report 16 December 2011 (Commonwealth of Australia, Canberra, 2012) 13. N Morris and G Hawkins, The Honest Politician's Guide to Crime Control (University of Chicago Press, Chicago, 1972). D Garland, The Culture of Control: Crime and Social Order in Contemporary Society (The University of Chicago Press, Chicago, 2001). 297

Tim Legrand, Simon Bronitt, and Mark Stewart

More than a decade after the watershed terror attacks of 9/11, the proliferation of counterterrorism laws across the world has recast the relationship between the state and civil society.5 In the shadow of Al Qa’ida’s spectacular success, the decade following 9/11 heralded a radical revision in the level of resources for policing and security architectures. New terrorism-related offences, supported by expanded intelligence-gathering and investigation powers, were rushed onto the statute books to combat the increasing threat of international terrorism. Yet amid the clamour to enact new counter-terrorism laws, few governments paused to consider whether the reforms were strictly necessary, likely to be effective, or that they even might be counterproductive.6 Since the introduction of the laws, governments have remained resistant to evaluating the costs, benefits, and impact of their interventions. As Donkin and Bronitt found, ‘governments rarely justify the adoption or evaluate the effects of new counter-terrorism initiatives by reference to scientifically informed research’.7 Meanwhile, academic attention in the field of counter-terrorism law has tended to focus on surveying the global trends relating to the erosion of fundamental liberal principles and human rights8 and the reorientation of the wider criminal justice system towards ‘preventive justice’ measures.9 LaFree contends it is ironic that while effective counter-terrorism initiatives rely on hard data and evidence, ‘the study of terrorism has lagged behind many other fields in the social and behavioural sciences’.10 To address the question of the impact of counter-terrorism laws, the field of crime prevention can potentially offer a start-point for sophisticated evaluation frameworks. Research on crime prevention, its causes and consequences is a burgeoning field of criminology and has given rise to efforts to develop an evidence-based model of policing, spearheaded by Lawrence Sherman.11 However, such frameworks of criminological enquiry are reliant on access to the statistical data sets generated by police and security agencies. Sadly for scholars concerned with counter-terrorism laws and programmes, in many cases public officials are reluctant to grant access to full data pertaining to terrorism; with some, though not complete, justification officials typically cite operational and/or national security concerns in denying access to these data. This reluctance is not always convincing, especially compared with other fields. For example, in Australia, Parliament mandates the Attorney-General to obtain data from law enforcement agencies on the prevalence, use, and cost-effectiveness of covert law enforcement measures

5 6

7

8 9

10

11

298

V Ramraj, M Hor, K Roach, and G Williams, Global Anti-Terrorism Law and Policy (2nd edn, Cambridge University Press, Cambridge, 2012) 1. S Bronitt, ‘Balancing Liberty and Security: Critical Perspectives on Terrorism Law Reform’ in M Gani and P Mathew (eds), Fresh Perspectives on the ‘War on Terror’ (ANU E Press, Canberra, 2008) 65–84, 70. S Donkin and S Bronitt, ‘Critical Perspectives on the Evaluation of Counter-Terrorism Strategies: Counting the Costs of the ‘War on Terror’ in Australia’ in A Masferrer and C Walker (eds), CounterTerrorism, Human Rights and the Rule of Law: Crossing Legal Boundaries in Defence of the State (Edward Elgar, Cheltenham, 2013) 169–88, 170. Ramraj, Hor, Roach, and Williams (n 5). A Ashworth and L Zedner, ‘Prevention and Criminalization: Justifications and Limits’ (2012) 15 New Criminal Law Review, 542. See also: A Ashworth and L Zedner, Preventive Justice (Oxford University Press, Oxford, 2014) ch 8. G LaFree, ‘Using Open Source Data to Counter Common Myths about Terrorism’ in B Forst, JR Greene and JP Lynch (eds), Criminologists on Terrorism and Homeland Security (Cambridge University Press, Cambridge, 2011) 411, 411. AA Braga, ‘Evidence-Based Policing’ in A Wakefield and J Fleming (eds), The SAGE Dictionary of Policing (Sage, Thousand Oaks, 2009) 112–5; also see LW Sherman, Evidence-based crime prevention (Routledge, London, 2002); LW Sherman, ‘The Rise of Evidence-Based Policing: Targeting, Testing, and Tracking’ (2013) 42(1) Crime and Justice 377.

Evidence of the impact of counter-terrorism legislation

including controlled operations and telecommunications interception. Although covert investigation and intelligence gathering are operationally sensitive fields, the federal Attorney-General tables before Parliament an Annual Report detailing the number of prosecutions and convictions resulting from the use of intercepted material, or from the use of surveillance devices.12 In addition to providing quantitative data, these Annual Reports include an assessment in qualitative terms of the overall effectiveness of these laws, and make recommendations for improvements in the future. Why then has counter-terrorism law been generally immune from this type of cost-effectiveness scrutiny? Setting aside the ‘national security concerns’ objection, terrorism is, unlike drug trafficking or organised crime, a ‘low probability event’.13 Nevertheless, its impact is considerable and carries serious and catastrophic consequences in terms of harms to life, limb, and property. Estimated financial losses can also be high. For example, it has been unofficially estimated that the 2009 Fort Hood shooting that killed eleven people caused US$100 million of losses; the 2013 Boston bombing that killed three and injured an estimated 264 people resulted in $500 million losses; the 2005 London bombings that killed fifty-two and injured more than 700 people caused $3–5 billion in losses; and the 9/11 attacks that killed nearly 3,000 people resulted in up to $200 billion losses.14 Mass-casualty attacks on these scales demonstrate that the threats and likely costs are considerable, financially and socially. On this basis, terrorism it seems has much in common with nuclear power, commercial aviation, environmental protection, and other highly reliable systems subject to human factors and relatively rare events that trigger an emotive response. It is clearly challenging to assess the effectiveness of counter-terrorism laws that are invoked only exceptionally. Indeed, with their strong preventive rationale, the lack of data on their operation might be consistent with a counter-terrorism law that is working effectively to deter or disrupt terrorist threats. On the other hand, this dearth of enforcement might simply demonstrate the lack of credible evidence for these threats.15 In this case, risk-based models of hazard, vulnerability, resilience, and loss need to be developed, often in the absence of large statistical databases.16 This chapter explores the extraordinary array of conceptual, methodological, and empirical obstacles to gauging the impact of counter-terrorism legislation. The potential pool of country case studies is expansive, so here we primarily limit our analysis to Australia and the UK. The next section outlines the major legislative developments and argues that the prospects of failing to legislate from a carefully evidence- or experience-informed perspective can have counterproductive effects. Under the third heading, the chapter turns to consider the substantial conceptual and empirical problems associated with gauging the impact of counter-terrorism legislation. In this section, we include a case study on cost–benefit analysis from the aviation security field. Finally, under the fourth heading, we briefly explore how these challenges of discerning ‘impact’ have manifested in serious debates over the effectiveness and appropriateness of counter-terrorism legal instruments through exploring three propositions: (i) 12 13 14 15 16

Attorney-General G Brandis, Telecommunications (Interception and Access) Act 1979: Annual Report 2012-13 (Commonwealth of Australia, Canberra, 2013). JE Mueller and MG Stewart, Terror, Security, and Money: Balancing the Risks, Benefits, and Costs of Homeland Security (Oxford University Press, New York, 2011) 15. JE Mueller and MG Stewart, ‘Evaluating Counterterrorism Spending’ (2014) 28(3) Journal of Economic Perspectives 237, 239. S Pickering, J McCulloch, and D Wright-Neville, Counter-Terrorism Policing: Community, Cohesion and Security (Springer, New York, 2008) 56. See, for example, MG Stewart and RE Melchers, Probabilistic Risk Assessment of Engineering Systems (Chapman & Hall, New York, 1997). 299

Tim Legrand, Simon Bronitt, and Mark Stewart

counter-terrorism legislation is effective in diminishing the threat of terrorism; (ii) counterterrorism legislation has little or no influence on the prevalence of terrorism; (iii) counter-terrorism legislation increases or widens the scope of the threat of terrorism.

The background of counter-terrorism instruments The precipitant rise of Islamic extremism immediately before and after the 9/11 attacks sparked considerable legislative activity worldwide. In the immediate aftermath of Al Qa’ida’s attacks, the UN Security Council passed Resolution 1373, which required member states to institute measures to counter the financing of terrorism (CFT) within 90 days. This presented many states with an immediate problem. The short timeframe required considerable resources and legal expertise to develop and draft appropriate laws for: first, defining what terrorism entailed (which the UN did not define);17 second, constituting a terrorist ‘organisation’ or entity using that definition; and, third, finally, undertaking the designation of specific terrorist organisations within this legislative rubric. While the UK had, just a year prior to the attacks, consolidated its counter-terrorist legislation through the enactment of the Terrorism Act 2000, the Australian government was among those countries in need of a rapid development of counter-terrorism legislation. To meet the injunction of Resolution 1373, the Australian Parliament passed the Charter of the United Nations (Anti-Terrorism Measures) Regulations 2001 and, subsequently, drawing heavily on the UK’s Terrorism Act 2000, the Security Legislation Amendment (Terrorism) Act 2002 (Cth). The latter Act took almost word-for-word the UK legislation’s broad definition of terrorism,18 and muscular pre-emptive powers granted to policing and security agencies.

High stakes in low-frequency threats: The importance of gauging the impact of counter-terrorism laws Although the effectiveness of counter-terrorism policy has largely escaped scrutiny by policy officials and academics,19 it remains natural, perhaps crucial, to determine why gauging effectiveness is such an important matter. The core motivation of government counter-terrorism legislation is, at its most fundamental, to prevent or extinguish terrorism. The state’s duty to protect the public from acts of terrorism may be viewed as a given, yet its second element – to increase the public sense of security – is frequently overlooked in the debates. That is, not only do governments want to stamp out acts of terrorist violence, they want the public to be relieved of the fear associated with the threat of that violence. It has been a historic feature of particularly the UK approach to counter-terrorism to disrupt the message or discourse of terrorism itself as an act of symbolism. For example, Lord Lloyd stated in his review of UK counter-terrorist legislation that the purpose of banning certain groups is to ‘give legislative expression to public

17

18

19

300

But compare Chapter 1 (Saul) in this book for examples of counter-terrorism legislation that do not define terrorism. See also M Di Filippo, ‘The definition(s) of terrorism in international law’ in B Saul (ed.), Research Handbook on International Law and Terrorism (Edward Elgar Publishing, Cheltenham, 2014). Criminal Code Act 1995, Part 5.3, 100.1 (as amended by the Security Legislation Amendment (Terrorism) Act 2002, Schedule 1, para 3. See further Chapter 5 (Roach) in this book for discussion of the UK’s definition of terrorism. AP Schmid ‘50 Un- and Under-researched Topics in the Field of (Counter-)Terrorism Studies’ (2011) 5(1) Perspectives on Terrorism 76.

Evidence of the impact of counter-terrorism legislation

revulsion and reassurance that severe measures were being taken’.20 Studies in criminology on ‘fear of crime’ illustrate the complexity of this dynamic of counter-terrorism policy. These studies suggest that public perceptions of crime often bear little relation to the material threat of crime to the individual both in Australia21 and the UK.22 These studies claim that the ‘threat’ of crime is heavily influenced by the selectivity of the media in sensationalising (infrequent) violent crime and downplaying (frequent) ‘volume’ crimes, such as vandalism or theft. This suggests that diminishing the frequency and severity of terrorism may in fact be quite a separate task to diminish the ‘threat perception’ of terrorism as a function of media and society.23 It is squarely within the public interest to determine the impact of counter-terrorism legislation and, indeed, the suite of costly programmes and agencies that contribute to the goal of ameliorating the threat of terrorism worldwide. Yet legislation can have all sorts of effects, not all of which are intended and some of which may, in fact, be harmful. Certainly, given the risks associated with terrorism, there is a clear imperative to investigate whether or not counter-terrorism legislation achieves its purpose. Though this proposition appears to be one of profound common sense, at present there are few indications that there is a strong policy or political commitment to supporting the independent evaluation of counter-terrorism laws. The UK Independent Reviewer of Terrorism Legislation (IRTL), a security-cleared position, was created to provide oversight of the effectiveness, appropriateness, and proportionality of counter-terrorism laws. Australia adopted a similar model in 2011, creating an Independent National Security Legislation Monitor (INSLM).24 In exercising oversight roles, these reviewers have drawn attention to the egregious absence of evaluation and research concerning the effectiveness of counter-terrorism legislation. The principle of independent oversight in Australia is under serious threat with proposed legislation to abolish the INSLM as part of a new government agenda to reduce bureaucracy and streamline government. In condemning the proposed legislation, the IRTL, David Anderson QC, submitted to the Australian Parliament that the INSLM had established ‘a global benchmark for the independent supervision of counter-terrorist activity’.25 Much is clearly at stake, not least the long-standing tenets of criminal justice that are reversed under the mandate of countering terrorism: The pre-crime security measures introduced to counter-terrorism have been termed ‘laws against law’ because they are the antithesis of criminal justice due process that commences with the presumption of innocence and moves through a number of discrete stages from investigation to charge, trial and verdict.26 Governments should be cautious of rushing to legislate when little is known about what works and, indeed, when much is known about what worsens. Perhaps the most egregious potential 20 21 22 23 24 25

26

Lord Lloyd, Inquiry Into Legislation against Terrorism (Cm 3420, London 1996). L Roberts and D Indermaur, What Australians Think About Crime and Justice: Results from the 2007 Survey of Social Attitudes (Australian Institute of Criminology, Canberra, 2009) 24. LM Drake and R Simper, ‘The Measurement of Police Force Efficiency: An Assessment of UK Home Office Policy’ (2005) 23 Contemporary Economic Policy 465, 479. For example, Mueller and Stewart, Terror, Security, and Money (n 13) 185–91. See further Chapter 7 (Ip) in this book. D Anderson,‘Independent National Security Legislation Monitor Repeal Bill 2014: Submission to the Senate Legal & Constitutional Affairs Committee by David Anderson QC, UK Independent Reviewer of Terrorism Legislation’ (28 April 2014). J McCulloch and S Pickering,‘Pre-Crime and Counter-Terrorism: Imagining Future Crime in the “War on Terror”’ (2009) 49(5) British Journal of Criminology 628, 640. 301

Tim Legrand, Simon Bronitt, and Mark Stewart

impact of many counter-terrorism laws has been the alienation of communities targeted, knowingly or otherwise, by policing and security agencies, as emphasised by an Australian Joint Parliamentary Committee on Intelligence and Security: Laws, policies and practices which disproportionately impact on minorities risk undermining the principle of equality, which is the cornerstone of democracy and essential to the maintenance of community cohesion. The principle applies to all arms of government and should provide an ethical guide to public debate on these otherwise potentially divisive issues.27 With these concerns in mind, the next section explores the complex interplay of competing concepts and methodologies integral to determining the ‘impact’ of counter-terrorism legislation.

Conceptual conundrums in evaluating counter-terrorism measures Though there is a growing literature exploring a spectrum of counter-terrorism efforts and impacts, there is far from a unified approach to determining how and whether governments have been successful in tackling violence and the extremism that fuels it. For the purposes of this chapter, this literature is summarised in three distinct conceptual schools. ‘First order of impact’ scholars seek to establish a causal link between counter-terrorism measures and the resulting increase or decrease in targeted behaviours. There is an energetic literature examining the effectiveness of individual measures to prevent, counter or mitigate terrorist attacks, which spans, inter alia: air marshals and hijacking;28 use of metal detectors;29 military retaliation;30 targeted killings;31 conciliatory approaches;32 and target hardening.33 Notably, much of the empirical data informing some of these authors and the wider corpus of similar work is derived from Israeli experiences of counter-terrorism, presumably because there 27 28

29 30

31 32

33

302

Joint Committee on Intelligence and Security, Review of Security and Counter Terrorism Legislation (Commonwealth of Australia, Canberra, 4 December 2012) 23. WM Landes,‘An economic study of US aircraft hijacking, 1961–1976’ Journal of Law and Economics 21(1), 1978, 1–31; MG Stewart and JE Mueller,‘A Cost-Benefit and Risk Assessment of Australian Aviation Security Measures’ (2008) 4(3) Security Challenges 45; MG Stewart and JE Mueller,‘A Risk and Cost-Benefit and Assessment of US Aviation Security Measures’ (2008) 1(3) Journal of Transportation Security 143; MG Stewart and JE Mueller, ‘Terrorism Risks and Cost-Benefit Analysis of Aviation Security’ (2013) 33(5) Risk Analysis 893; MG Stewart and JE Mueller, ‘Aviation Security, Risk Assessment, and Risk Aversion for Public Decisionmaking’ (2013) 32(3) Journal of Policy Analysis and Management 615. J Cauley and EI Im, ‘Intervention Policy Analysis of Skyjackings and Other Terrorist Incidents’ (1988) 78(2) American Economic Review 27. G LaFree, L Dugan, and R Korte, ‘The Impact of British Counterterrorist Strategies on Political Violence in Northern Ireland: comparing deterrence and backlash models’ (2009) 47(1) Criminology 17. A Zussman and N Zussman ‘Assassinations: evaluating the effectiveness of an Israeli counterterrorism policy using stock market data’ (2006) 20(2) Journal of Economic Perspectives 193. L Dugan and E Chenoweth, ‘Moving Beyond Deterrence: The Effectiveness of Raising the Expected Utility of Abstaining from Terrorism in Israel’ (2012) 77(4) American Sociological Review 597. D Makovsky, ‘How to Build a Fence’ (2004) 83(2) Foreign Affairs 50; J Cauley and EI Im, ‘Intervention Policy Analysis of Skyjackings and Other Terrorist Incidents’; MG Stewart, ‘RiskInformed Decision Support for Assessing the Costs and Benefits of Counter-Terrorism Protective Measures for Infrastructure’ (2010) 3(1) International Journal of Critical Infrastructure Protection 29.

Evidence of the impact of counter-terrorism legislation

are too few terrorist attacks elsewhere to sustain an empirical study, though there are also studies looking at UK counter-terrorism laws and policies in relation to Northern Irish terrorism. As these are concerned with establishing causal links, this cohort seeks to isolate, as far as possible, the intervention effect on the attendant outcome. As a result, these first-order scholars offer much in the way of determining the utility of individual measures, and, with sufficient data, the ‘causal’ approach can cast light on the effectiveness of specific approaches. Yet, such studies tell us little about the interplay of broader legal, ideological, social, economic, political, and environmental factors that relate to terrorism. Since the metrics are predicated on ‘terrorist events’ as dependent variables, they tell us little about the effect of laws and preventive programmes, for example, in diminishing radicalisation. Unfortunately, there is a shortage of empirical data (on causes of failures) for many hazards (such as nuclear power plants), hence the effectiveness of safety or protective measures is based on systems and reliability modelling that use expert judgements, knowledge of redundancy or vulnerability gaps systems/procedures, and identification of ‘risk-critical’ procedures.34 These techniques, many of which result in quantifiable measures of risk reduction, are well suited to terrorism, and are often referred to as ‘probabilistic terrorism risk assessment’.35 ‘Second order’ scholars are characterised by a concern to determine the indirect impact of counter-terrorism measures. This school proceeds on the basis that counter-terrorism measures broadly, and counter-terrorism laws specifically, reshape legal, social, economic, and political structures. So, for legal scholars in this cohort, counter-terrorism laws are deemed to have had a deleterious effect on, for example, the rule of law,36 and freedoms of speech and association.37 Others explore the socio-political effect that counter-terrorism laws have on, for example, minority groups, increasing their vulnerability and social exclusion.38 Others argue that counter-terrorism laws have a ‘chilling’ effect on ideology39 and undermine legitimate endeavours for self-determination.40 Finally, ‘third order’ scholars claim that counter-terrorism measures alter, radically in some cases, the narratives of security,41 and operate as a mechanism to constrain legitimate political dissent.42 Richard Jackson, for example, contends that dominant political and academic narratives of ‘Islamic terrorism’ ‘reify a particular kind of political and social order’, damage

34 35

36

37 38 39

40 41 42

Stewart and Melchers (n 16). See, for example, HH Willis and T LaTourrette, ‘Using Probabilistic Terrorism Risk Modelling for Regulatory Benefit-Cost Analysis: Application to the Western Hemisphere Travel Initiative in the Land Environment’ (2008) 28(2) Risk Analysis 325; Stewart and Mueller ‘Terrorism Risks and CostBenefit Analysis of Aviation Security’ (n 28). J Hocking, ‘Counter Terrorism and the Criminalisation of Politics: Australia's New Security Powers of Detention, Proscription and Control’ (2003) 49 Australian Journal of Politics & History 355, 359. M Muller, ‘Terrorism, Proscription and the Right to Resist in the Age of Conflict’ (2008) 20 Denning Law Journal 111. R Bahdi, ‘No Exit: Racial Profiling and Canada’s War against Terrorism’ (2003) 41(2/3) Osgoode Hall Law Journal 293. J Finn, ‘Electoral Regimes and the Proscription of Anti Democratic Parties’ (2000) 12 Terrorism and Political Violence, 51, 66; S Marques da Silva and CC Murphy, ‘Proscription of Organisations in UK Counter-Terrorism Law’ in I Cameron (ed.), EU Sanctions: Law and Policy Issues Concerning Restrictive Measures (Intersentia, Cambridge, 2012) 199. V Sentas, ‘The violence of ‘terrorist organisation’ bans’ (2010) 82(1) Criminal Justice Matters 16, 16. T Legrand and L Jarvis, ‘Enemies of the State: Proscription Powers and Their Use in the United Kingdom’ (2014) 9 British Politics 450–71. Ibid. 303

Tim Legrand, Simon Bronitt, and Mark Stewart

community relations, and are counter-productive.43 For other authors, the application of counter-terrorism measures has given rise to ‘suspect communities’, creating suspicion around diasporas associated with extremist organisations.44

Conceptual and methodological concerns Drawing across these three schools of thought, there is a range of conceptual problems that vex scholars in the determination of the ‘impact’ of counter-terrorism legislation. According to Lum, Kennedy, and Sherley: Many of these interventions (and more) have become part of our daily lives and discourse, but we have no idea whether or not they fulfill the promise of reducing terrorism, terrorism-related risk or harm as there is no research to support these interventions. Indeed, some of these interventions may also have collateral and unintended effects of reducing civil rights or our quality of life.45 Fundamentally, there is an ontological question related to the true nature and existence of terrorism. Counter-terrorism measures intrinsically assume, of course, that there is a real phenomenon of ‘terrorism’ to diminish and that terrorism risks are unacceptably high, even though the annual risk of being killed by a terrorist in the US is less than one in four million.46 To put this into perspective, the annual chance of being murdered in the US is nearly 200 times higher.47 Yet, it is unclear whether governments have developed their own measures of effectiveness and, if they have, what these look like.48 There are a number of possibilities as to why this is so. As observed above, the most obvious is the need to maintain a level of secrecy over the operational effectiveness of security agencies. Second, there is an apparent conflict of interest in relying on security agencies to report on their own effectiveness with no independent external corroboration. In this case, we might expect that audit agencies have a hand in the process of determining, at the very least, value for money and/or cost–benefit analyses. Yet there are no indications that these agencies do so despite, for example, the Government Accountability Office urging the United States Department of Homeland Security to do so.49 Conceptually, there are considerable difficulties associated with identifying and comparing the ‘pools’ of violent extremism: to put it bluntly, who are the terrorists? At an aetiological level, there is an expansive set of behaviours, groups, and individuals that can potentially fall under the rubric of ‘terrorism’, including violent Islamists, far right (and left) extremists, animal rights

43 44

45 46 47 48 49

304

R Jackson, ‘Constructing Enemies: ‘Islamic Terrorism’ in Political and Academic Discourse’ (2007) 42 Government and Opposition 394, 425. C Pantazis and S Pemberton, ‘From the ‘old’ to the ‘new’ suspect community: Examining the impacts of recent UK counter-terrorist legislation’ (2009) 49 British Journal of Criminology 646. But compare Chapter 27 (Greer) in this book. C Lum, LW Kennedy, and A Sherley, ‘Is counter-terrorism policy evidence-based? What works, what harms, and what is unknown’ (2008) 20(1) Psicothema 35, 41. JE Mueller and MG Stewart, ‘Responsible Counterterrorism Policy’ (2014) 755 Policy Analysis (Cato Institute) 1, 5. Ibid. Lum, Kennedy, and Sherley (n 45) 41. Government Accountability Office Department of Homeland Security: Progress Made and Work Remaining in Implementing Homeland Security Missions 10 Years after 9/11 (GAO, Washington, DC, 2011). See further Mueller and Stewart, Terror, Security, and Money (n 13) 3–7.

Evidence of the impact of counter-terrorism legislation

groups,50 environmental campaigners,51 journalists,52 and whistle-blowers,53 and so on. In addition, this pool of potential terrorists necessarily changes from country to country, which renders international comparisons challenging. This is illustrated in the uneven proscription of ‘international terrorist organisations’: as of July 2014 the UK had designated sixty-four international terrorist organisations (in addition to fourteen domestic organisations connected to the Northern Ireland conflict), whereas Australia had designated nineteen international terrorist groups, the US forty-nine foreign terrorist organisations and Canada fifty-three ‘terrorist entities’.54 At a methodological level, a number of difficulties present themselves. First, laws that seek to deter criminal behaviours are notoriously difficult to evaluate, and these problems are compounded in countries, such as Australia, where the infrequency of terrorist plots means there are few data sets to support a robust longitudinal analysis. Second, the suite of counterterrorism laws and powers exist in a state of competition insofar as the success of one power or law diminishes the (potential) success of the others. So, many of the potential ‘measures’ of success might be construed as both a success or failure of policy: for example, if security agencies pre-empt an abnormally high number of potential terrorist plots in a year, we might argue that the raft of counter-terrorism legislation is both successful in its empowerment of security agencies and a clear failure in deterring terrorist behaviours. Moreover, where security agencies are effective in disrupting plots at a very early stage, which is perhaps the best scenario, relatively few prosecutions may result. Applying either prosecution – or conviction-based – metrics would incentivise security and policing agencies not to focus their extensive resources and powers on early intervention, but rather to wait until the evidence is sufficiently strong to merit prosecution. Put another way, in a year with a relatively high number of successful prosecutions for terrorism offences, we might claim that counter-terrorism laws are effective in convicting terrorists, but that the powers given to security agencies are ineffective (or they have used them poorly) in disrupting terrorist operations and countering radicalisation, or that the laws themselves are ineffective in deterring terrorism. Quite simply, the interplay of prevention, deterrence, prosecution, disruption, and willingness to engage in extremist violence are too complex to conclusively determine, on any one of these variables alone, which of the counterterrorism laws is ‘successful’.

‘Dream threats’ in the ‘new’ terrorism Evaluation of the impact of counter-terrorism legislation is stymied also by the depiction of today’s threats as a form of ‘new’ terrorism, with unbounded possibilities and risks. In the shadow

50 51

52

53 54

R Monaghan,‘Not Quite Terrorism: Animal Rights Extremism in the United Kingdom’ Studies in Conflict & Terrorism, 36 (2013) 933–51. See, for example, Australian counter-terrorism agency surveillance of environmental groups. Available at: www.smh.com.au/federal-politics/political-news/asio-eyes-green-groups-201204111wsba.html accessed 28 February 2015. In the UK, the Regulation of Investigatory Powers Act (2000) was introduced to combat terrorism and organised crime, yet has been widely used to allow police agencies to investigate journalists and their confidential sources. Available at: www.theguardian.com/media/greenslade/2014/oct/ 07/press-freedom-police accessed 28 February 2015. See further R (Miranda) v Secretary of State for the Home Department [2014] EWHC 255 (admin). T Legrand, ‘Banishing the enemies of all mankind: the effectiveness of proscribing terrorist organisations in Australia, Canada, the UK and US’ in L Jarvis and M Lister (eds), The Ends of Counter-Terrorism (Routledge, London, 2014). 305

Tim Legrand, Simon Bronitt, and Mark Stewart

of the 9/11 attacks, it seemed to governments and publics across the world that we faced a new enemy, for whom almost any catastrophic scenario was possible and, indeed, likely. This dynamic of a ‘new’ terrorism under the auspices of Islamic violent extremism posing a serious existential threat was underlined by Western political leaders such as the then UK Prime Minister Tony Blair, who argued that,‘I don’t think you can compare the political demands of [Irish] republicanism with the political demands of this terrorist ideology we’re facing now’.55 In this way, the ‘new’ terrorism is presented as unbounded, indiscriminate, and bent on the maximum damage to Western civilisation. From this perspective, if the threat of terrorism is existential, that is, catastrophic with irreversible damage to society – then any counter-terrorism effort is justified. Claims of a ‘new’ and ‘unbounded’ threat of terrorism are at best faulty and at worst counterproductive. The void of data on the nature of extremism and the danger it poses is steadily being filled with what Jenkins calls ‘dream threats’; speculation on what sorts of dangers we face in an imagined future: It is easy to begin by identifying vulnerabilities – they are infinite, positing theoretical adversaries – they are legion, then reifying the threat – a subtle shift of verbs from could to may happen… The danger arises when speculation becomes the basis for launching costly efforts to prevent ‘what ifs,’ or worse, when policymakers believe that highly publicized preventive or mitigation efforts will deter such adversaries…56 More bluntly, this claim is perhaps the unfounded legitimation of counter-terrorism legislation, irrespective of the erosion of democratic freedoms and unintended consequences. The risk from terrorism has been massively exaggerated. We have tended to terrorise ourselves, and as Mueller and Stewart conclude, civil liberties and cost excesses can only be reduced if the internalised hysteria about terrorism is substantially dampened. If people have come to believe that the chance every year of being killed by a terrorist is dangerously high (rather than one in 4 million), they are unlikely to be moved by concerns about civil liberty infringements or about expenditures, no matter how excessive, that are supposedly designed ‘to keep us safe’.57 Moreover, the threats presented in today’s climate are not truly ‘new’ concerns or associated with ‘new’ forms of terrorism. The international element of violent extremism, including Al Qa’ida, was documented well before 2001. Field argues that many of the violent extremist organisations of the twentieth century, including the Red Army Faction, the Provisional IRA, and the Palestine Liberation Organisation, were vocal in their support of global armed struggles.58 Further, Field asserts that ‘many of the supposedly “new” developments, such as religious motivation, global objectives, indiscriminate violence and even an interest in nuclear, biological or chemical weapons, can in fact be observed in “traditional” terrorist groups’.59 55

56 57 58 59 306

G Wheatcroft, ‘Blair's dubious logic on Islamism and Ireland’ The Financial Times (London, 26 August 2005). Available at: www.ft.com/cms/s/0/3eaac46a-15ce-11da-8085-00000e2511c8.html# axzz3HP1yLgEe accessed 28 October 2014. BM Jenkins, ‘Foreword’ in IO Lesser and others (eds), Countering the New Terrorism (RAND, Santa Monica, 1999) x. JE Mueller and MG Stewart,‘Civil Liberties, Fear, and Terrorism’ (2012) 2(2) Notre Dame Journal of International and Comparative Law 282, 288. A Field, ‘The ‘New Terrorism’: Revolution or Evolution?’ (2009) 7(2) Political Studies Review 195, 202. See also Legrand (n 54). Field (n 58).

Evidence of the impact of counter-terrorism legislation

Case-study: Cost–benefit framework to proposed measures countering violent extremism Having identified some methodological and conceptual concerns in applying measurement tools to counter-terrorism legislation, in the following case study we examine a costs and benefits framework as a ‘first pass’ at the problem. Drawing on the conventional model for evaluating the costs and benefits, an analysis of counter-terrorism legislation requires four variables: the consequences of a successful attack, the likelihood of a successful attack, the degree to which the counter-terrorism legislation reduces risk, and the cost of the counter-terrorism legislation. Our approach compares the costs of counter-terrorism legislation with its benefits as tallied in lives saved and damages averted. The benefit of counter-terrorism legislation is a composite of three considerations: the probability of a successful attack absent the counter-terrorism legislation, the losses sustained in a successful attack (these two, combined, constitute the risk), and the reduction in risk furnished by the counter-terrorism legislation: (benefit) = (probability of a successful attack) × (losses sustained in the successful attack) × (reduction in risk). To be sure, not all benefits of counter-terrorism legislation can be quantified in monetary terms, such as improved public perceptions of security or achievement of political stability. Political imperatives do not lend themselves to quantitative assessment. However, the benefits of counter-terrorism legislation are borne overwhelmingly by the public, as they are the ones who potentially suffer injuries to life and limb, property and employment, inconvenience due to damaged infrastructure, as well as experiencing indirect losses from a successful terrorist attack. It makes sense to couch the decision-problem in terms that affect the public, and this is the approach used in the example to follow. To illustrate this approach, we shall apply this framework to the counter-terrorism legislation proposed in August 2014 by the Australian Prime Minister Tony Abbott.60 The proposed legislation will include stronger powers for authorities to detain and question jihadists who have fought alongside terrorists overseas in countries like Syria and Iraq, as well as ‘lowering the threshold for police wanting to arrest suspected terrorists without a warrant, and giving the Australian Federal Police (AFP) greater powers to seek control orders on returning foreign fighters.’61 The announcement also proposed an extra AUS$630 million of funds over four years to boost counter-terrorism work by the Australian Secret Intelligence Service (ASIS), AFP, Australian Security Intelligence Organisation (ASIO), and Customs and Border Protection. It is unclear how the extra AUS$630 million will be spent, but it seems reasonable that most will cover costs associated with surveillance, detection and investigation of foreign fighters returning to Australia. Let us assume that this will be expended evenly at AUS$100 million per year. It might be expected that the already existing and sweeping counter-terrorism legislation and policing investigative capabilities, and tip-offs from the public, would be reasonably effective for managing this emerging threat. The AFP has seen its budget increase more than three and a half times (in real terms) from levels of expenditure in 1998 to 1999,62 and the ASIO has increased more than sixfold (in real terms) since 2000 to 2001. These massively expanded

60 61

62

Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 (Australia). L Bourke and J Massola, ‘Tony Abbott boosts funding by $630m to fight home-grown terrorism’ Sydney Morning Herald (Sydney, 6 August 2012). Available at: www.smh.com.au/federalpolitics/political-news/tony-abbott-boosts-funding-by-630m-to-fight-homegrown-terrorism-201 40805-3d6mx.html accessed 26 October 2014. Donkin and Bronitt (n 7) 186. 307

Tim Legrand, Simon Bronitt, and Mark Stewart

expenditures and capabilities should lead to significant risk reduction. Statistical analysis of terrorist plots and attacks, systems reliability modelling, or expert judgement may be used to assess risk reductions.63 In the absence of such data, we assume that existing counter-terrorism legislation reduces the risk (namely the consequences and/or the likelihood of such an attack) by 75 per cent – i.e., three out of four attacks will be deterred, foiled, or disrupted by existing counter-terrorism legislation. Additional funding and expanded powers of AFP, ASIO, and other agencies would appear to further improve the odds of deterring, disrupting, or foiling a terrorist plot involving foreign fighters returning to Australia. We assume that the risk of a successful terrorist attack is thus reduced by an impressive 95 per cent – only one out of twenty attacks will be successful. The risk reduction from the proposed counter-terrorism legislation is thus 95 per cent minus 75 per cent giving 20 per cent. A mass-casualty attack on the scale of the 2004 Madrid and 2005 London bombings would be a likely threat to be concerned about. Drawing on a range of general estimates, we may place the value the loss of such an attack at, say, a high AU$5 billion.64 A ‘break-even analysis’ then seeks to determine what the probability of a successful terrorist attack from a foreign fighter in the absence of counter-terrorism legislation would have to be for the proposed counter-terrorism legislation to begin to justify its cost. In this case, one otherwise successful attack from a ‘home grown’ foreign fighter would need to occur once every ten years to justify the cost of proposed counter-terrorism legislation. Our analysis then suggests that the proposed counter-terrorism legislation would be justified if it, on its own, deters, prevents, disrupts, or protects against one half-billion dollar attack from a ‘home grown’ foreign fighter every five years, or more than one London-style attack every 50 years. One might argue that is a relatively low attack frequency, and so it is likely that, for the parameter estimates assumed herein, the proposed counter-terrorism legislation would have benefits that exceed its cost. Or it might be argued that the lack of successful attacks experienced in Australia highlights the difficulty in conducting such attacks, and the ability of foreign fighters to inflict an attack on the scale of the Boston bombing is limited and with low frequency. If this argument is persuasive, the proposed counter-terrorism legislation is not cost-effective. Clearly, other input data would alter the calculated results and maybe the decision, but the decision metric described above is transparent and allows the robustness of decisions to be tested by sensitivity analysis. Thus, though only a brief illustration, this form of meta-analysis of costs and benefits suggests that the heightened expenditure on the raft of counter-terrorism measures, which includes laws as well as additional resources to policing and security agencies, can be evaluated. Of course, this form of analysis is useful only in broad terms: the impact of the constitutive elements of counter-terrorism presents an altogether more challenging proposition, as discussed in the next section.

Measuring the amelioration of the threat of terrorism and other conceptual conundrums Counter-terrorism legislation is situated within a broader social, ideological, political, and economic milieu in which acts and threats of terrorism occur. As discussed above, determining whether any change in the frequency or severity of terrorism is due to counter-terrorism

63 64 308

Stewart and Mueller, ‘Aviation Security, Risk Assessment, and Risk Aversion for Public Decisionmaking’ (n 28). JE Mueller and MG Stewart, ‘Evaluating Counterterrorism Spending’ (n 14) 240.

Evidence of the impact of counter-terrorism legislation

interventions, such as legislation, is fraught with conceptual problems. Here we articulate these concerns more clearly by interrogating three propositions: first, counter-terrorism legislation is effective in diminishing the threat of terrorism; second, counter-terrorism legislation has little or no influence on the prevalence of terrorism; third, counter-terrorism legislation increases or widens the scope of the threat of terrorism.

Proposition 1: Counter-terrorism legislation is (demonstrably) effective in diminishing the threat of terrorism The shadow of the precipitous loss of life and associated financial costs of 9/11 looms heavily over the heads of government and senior public officials charged with the protection of their citizens’ lives. These, and other attacks, serve as a warning that convictions of (surviving or supporting) terrorists after the fact is a scant solace compared with the unconscionable murder of thousands of civilians. And so there is a sense in which counter-terrorism laws proceed with a different imperative to orthodox criminal laws: The rationale for integrating national security into criminal justice and preventing terrorism through pre-crime measures is that the human costs of terrorist incidents are so high that the traditional post-crime due process protection is unreasonable or unaffordable.65 And so, laws around counter-terrorism have been weighted heavily towards prevention in two ways: first, by empowering policing, intelligence, and security agencies to undertake initiatives and operations to prevent terrorism occurring at all; and, second, by criminalising acts in the preparation of terrorist acts.66 To the second of these, legislation is geared to prosecuting and criminalising certain activities that are preparatory, at the earliest stage, to acts of terrorism. Whereas earlier legislation addressing the terrorism associated with, say, the Northern Ireland conflict, employed the threat of long prison sentences to try and deter violence, the advent of suicide-bombing as a tactic obviates the incarceration deterrent. And so there has been a marked emphasis on counter-terrorism legislation handing policing and security agencies greater powers to prevent terrorism at the earliest stage possible – in an example of the, or rather ‘a’,67 precautionary principle in action. This approach is grouped around powers granted to policing and security agencies such as: suspicionless stop-and-search;68 surveillance and intelligence gathering; preventive detention; and control orders.69 Scholars including Sunstein and Goldsmith, have charted the rise of the precautionary principle across a range domains of public policy including environmental law and public health.70 There is a danger, when

65 66 67 68 69 70

McCulloch and Pickering (n 26). Note also that most ‘homeland security’ is preventive – see further Chapter 21 (Guiora, Lennon, and Walker) in this book. On the contested nature of the term, see further: P Sandin, ‘Dimensions of the precautionary principle’ (1999) 5 Human and Ecological Risk Assessment 889. See G Lennon, ‘Precautionary Tales: Suspicionless Counter-Terrorist Stop and Search’ (2015) 15 Criminology and Criminal Justice 44. McCulloch and Pickering (n 26); L Zedner ‘Pre-crime and post-criminology?’ (2007) 11(2) Theoretical Criminology 261. CR Sunstein, Laws of Fear: Beyond the Precautionary Principle (Cambridge University Press, Cambridge, 2005); A Goldsmith ‘Preparation for Terrorism: Catastrophic Risk and Precautionary Criminal Law’ in A Lynch, E Macdonald, and G Williams (eds), Law and Liberty and the War on Terror (Federation Press, Annandale, 2007) 59. 309

Tim Legrand, Simon Bronitt, and Mark Stewart

precautionary logic is applied to the terrorism field that, because precautionary measures can be applied to limit long-cherished freedoms such as freedom of speech, movement, and association, there is a danger of irreversible damage to fundamental principles of law and human rights.71 While preventive approaches to terrorism, and crime more broadly, may be necessary, they seem highly resistant to evaluation. In Australia, the INSLM has observed that no terrorist attacks have occurred in Australia and prosecutions for terrorism-related offences have been well conducted, yet cautions, ‘It should not be regarded as a logical extension of that observation that the CT Laws themselves are effective. A more realistic statement is that Australia’s agencies, working within the CT Laws, have been effective’.72 A counter argument is, why, after the shocking events of 9/11, were there so few attacks in the months and years it took for enhanced security and legislation to be put in place and effectively implemented? At a time of our apparently greatest vulnerability, not much of anything in the way of terrorist plots or attacks actually materialised in the West. An approach that relies on the absence of data to indicate success of preventive measures is what social psychologists refer to as a counter-factual one; that is, a rationale for action that is based on the premise that had a certain measure x not been undertaken, y would have occurred. This counter-factual reasoning is apparent in the legitimation of counter-terrorism legislation and government initiatives in what has been described as the ‘foiled attack metric’: ‘The number of successful prosecutions and plots foiled over the past year demonstrates the skill and professionalism of the police and security and intelligence agencies, as well as the strength of the systems and structures developed for our counter-terrorist work over many years.’73 The use of conviction data as a proxy measure for success is not necessarily a measure of either a successful legal apparatus or policing approach. For example, few arrests might indicate that, in fact, few people are committing terrorist offences or that they are better at countersurveillance techniques. More arrests might indicate that more people are committing terrorist offences, or perhaps that the police are better at their job of detection, or even that those individuals are worse at hiding their activities. The depiction of ‘success’ and ‘failure’ is clearly complex and problematic, as McCulloch and Pickering note, ‘In the hybrid and sometimes contradictory national security/criminal justice frameworks, prosecution and convictions are represented as less relevant or even irrelevant at the same time as being keenly pursued and, when successful, pointed to as a measure of effectiveness.’74

Proposition 2: Counter-terrorism legislation has no (discernible) impact on diminishing the threat of terrorism The suite of counter-terrorism laws are predicated on the logic that the laws (i) empowering policing and security agencies with a wider scope of action, and (ii) criminalising a wide range of activities associated with terrorism, together or separately, can have an impact on the behaviours of violent extremists and extremism. Establishing this causal link is not a straightforward exercise and is caught up in the so-called ‘attribution problem’.

71 72 73 74 310

Bronitt, ‘Balancing Liberty and Security’ (n 6) 68–9. B Walker, Independent National Security Legislation Monitor: Annual Report 16 December 2012 (Commonwealth of Australia, Canberra, 2012) 8. Hansard (House of Commons) vol 579, col 19WS 9 April 2014 (T May MP (Home Secretary)). McCulloch and Pickering (n 26) 631–2.

Evidence of the impact of counter-terrorism legislation

TW van Dongen puts forward the argument that the frequency of terrorist attacks is not a useful metric to determine counter-terrorism effectiveness.75 There is a certain intuition to assuming that increases in number and severity of terrorist attacks is indicative of a failing counter-terrorism strategy; whereas the converse might suggest a successful strategy. However, the severity and frequency of violence may be more a function of a terrorist organisation’s internal dynamics than the state’s counter-measures aimed against it. For example, an increase in violence might indicate a move towards more radical leadership:‘In this case, the increasing severity of terrorist violence says more about the terrorist group than about the policy applied against it’.76 Counter-intuitively, a group in decline might undertake an attack to indicate to its wider constituency of sympathisers that it is alive and well, even if it is not.77 In addition, a change in tactics may come about due to poor publicity. For example, following an attack on a Yemen hospital by a group affiliated to Al Qa’ida in December 2013, the local Al Qa’ida commander, Qassim al-Rimi, issued a public apology and actively distanced Al Qa’ida from the attackers.78 Therefore, it is highly feasible that a range of dynamics shape the propensity towards extremist violence: changing resources, opportunities, motivation, and foreign policy. We find claims that counter-terrorism laws have little or no effect on the praxis of terrorism unconvincing. While it is difficult to determine the precise effect on extremism and extremist violence, there is little doubt that counter-terrorism laws at least influence the environment, tactics, and narratives of extremist groups, as well as focusing the priorities of law enforcement. Yet, following van Dongen, we should be aware that there are many dynamics constitutive of the praxis of extremist violence that are unaffected by counter-terrorism laws.

Proposition 3: Counter-terrorism legislation (actually) increases the threat of terrorism The notion that counter-terrorism laws can generate the forms of violence that they seek to diminish is controversial. Yet a wide range of scholars have begun to shed more light on how counter-terrorism laws can alienate communities, exacerbate community grievances, and, according to Hocking, ‘if poorly directed, generate precisely the type of violence which it is intended to suppress’.79 One element of counter-terrorism laws, which has generated the most concern, is the proscription of terrorist organisations. For many authors, extremist groups can use the government’s banning of political organisations as ‘a propaganda tool to enhance their perceived victimhood and raise their status vis-à-vis their domestic constituency or other groups’.80 Strengthening this view, Finn argues that banning terrorist groups can ‘contribute to their sense of alienation and isolation, making them more likely to resort to violence’.81 In his 75 76 77 78

79 80 81

TW van Dongen, ‘Break it Down: An Alternative Approach to Measuring Effectiveness in Counterterrorism’ (2011) 6(3) Journal of Applied Security Research 357, 359–60. Ibid 359. AK Cronin, How Terrorism Ends: Understanding the Decline and Demise of Terrorist Campaigns (Princeton University Press, New Jersey, 2009). ‘Al-Qaeda in Yemen ‘sorry’ for hospital attack’ Al-Jazeera (Doha, 22 December 2013). Available at: www.aljazeera.com/news/middleeast/2013/12/al-qaeda-yemen-sorry-hospital-attack-20131222 102318821501.html accessed 28 October 2014. Hocking (n 36) 361. V Dudouet, ‘Anti-Terrorism Legislation: Impediments to Conflict Transformation’ (2011) Nov Berghof Conflict Research, Policy Brief 7. Finn (n 39); see also R Hogg, ‘Executive Proscription of Terrorist Organisations in Australia: Exploring the Shifting Border between Crime and Politics’ in M Gani and P Mathew (eds), Fresh Perspectives on the ‘War on Terror’ (ANU E Press, Canberra, 2008) 297–323. 311

Tim Legrand, Simon Bronitt, and Mark Stewart

study of the Kurdistan Workers’ Party (PKK), Muller finds that the decision to extinguish the group’s hopes for political legitimacy ‘fuelled the PKK’s eventual return to violence as all avenues for dialogue were closed’.82 The manner in which the UK government has approached criminalising individuals associated with extremist organisations at home and abroad has raised concerns of alienation and radicalisation. According to Harun Khan of the Muslim Council of Britain, ‘Part of the problem is the constant talk of legislation, harassment and monitoring, stripping people of their passports. This is what’s leading young people towards radicalism’.83 In Australia too, this same concern has been articulated by the Security Legislation Review Committee (SLRC), which has stressed its concerns over the unintended, and potentially harmful, impact of counterterrorism laws: The SLRC also has serious concerns about the way in which the legislation is perceived by some members of Muslim and Arab communities… Misunderstandings and fearfulness will have a continuing and significant impact and tend to undermine the aims of the security legislation. The negative effects upon minority communities, and in particular the escalating radicalisation of young members of such communities, have the potential to cause long term damage to the Australian community.84

Conclusion or new beginnings Developing a mandate for rethinking the performance of counter-terrorism law is a hazardous exercise. Like our criminological forebears Hawkins and Morris, not only is our manifesto unlikely to attract attention from politicians or government agencies, who have a vested interest in preserving their political and bureaucratic capital, it is also vulnerable to academic criticism for our ‘heroic’ assumptions addressing the deficit of public data relating to costs and benefits of specific counter-terrorism measures. That said, there is value in public policy terms of seeking better evidence of impact, positive and negative, rather than simply relying on ‘anecdotal’ evidence or, worse still, perceptions of what works or what does not. Of greatest value is the insight that impact for counter-terrorism legislation can be framed around three propositions: that the particular counter-terrorism legislation (i) is effective in diminishing the threat of terrorism; (ii) has little or no influence on the prevalence of terrorism; (iii) increases or widens the scope of the threat of terrorism. From the above analysis, these propositions can be applied singly or simultaneously. This is not a trivial insight: the debate over the effectiveness of counter-terrorism laws has a tendency to regress into siloed camps of either (unqualified) opposition or support for new laws. The above propositions, however, indicate that a more sophisticated assessment of the impact of counter-terrorism laws is needed, one which adopts a multi-layered account of the valorising, shaping, and countervailing forces concerned with violent extremism.

82 83

84

312

Muller (n 37) 128. J Halliday, ‘Crackdown on British jihadis “will push youth further towards extremism”’ The Guardian (London, 1 September 2014). Available at: www.theguardian.com/uk-news/2014/sep/ 01/crackdown-british-jihadis-push-muslim-youth-towards-extremism accessed 26 October 2014. Security Legislation Review Committee, Report of the Security Legislation Review Committee (Commonwealth of Australia, Canberra, June 15 2006) 142.

Part III

Protective security

This page intentionally left blank

21 Homeland security Amos Guiora, Genevieve Lennon, and Clive Walker

Homeland security is the most Promethean of counter-terrorist strategies, covering a vast – some would say excessive – range of sectors and risks. Everybody is subjected on a frequent basis to collective measures of protection against terrorism. Yet, there is no agreed definition of ‘homeland security’, and the area is much less often considered by academics, policy-makers, and the courts than the pursuit of terrorism through executive measures, policing powers, and criminal prosecution, with measures often left to operate in, if not the dark, then at least the dusk. This chapter will firstly consider what homeland security means, before analysing the relevant structures and actors in the US and UK. The means of delivering effective and accountable homeland security will then be presented before the challenges facing the sector are detailed.

The meaning of ‘homeland security’ The definition of homeland security ranges from a narrow focus on domestic counterterrorism threats (that is, risks to the ‘homeland’), through counter-terrorism risks to all assets, whether domestic or international, to a broad focus that encompasses all threats, whether manmade or natural, internal or external, domestic or international.1 Further complicating the attempts at a clear definition of homeland security is the evolution of the concept of ‘national security’ in recent years, from being narrowly focused on ‘traditional’ concerns, such as espionage and counter-terrorism, towards a far broader characterisation. In the US, Hurricane Katrina in 2005 prompted a reconceptualisation of both the meaning of homeland security and the role of the Department of Homeland Security (DHS). While the occurrence of Hurricane Katrina could have produced an idiosyncratic conception of security, the US developments in fact echo trends elsewhere. The UK’s ‘National Security Strategy’ likewise increasingly defines national security as encompassing not only ‘traditional’ threats from terrorism, nuclear proliferation, and espionage but also organised crime, natural hazards or accidents, and financial instability.2

1

2

See JJF Forest (ed.), Homeland Security: Protecting America’s Targets (Vols 1-3, Praeger, Westport, 2006); JD Whitley and LK Zusman, Homeland Security (ABA,Washington DC, 2009), A Guiora, Homeland Security: what is it and where are we going? (CRC Press, Baton Rouge, 2012); JJF Forest, RD Howard, and JC Moore, Homeland Security and Terrorism (2nd edn, McGraw Hill, New York, 2014). Home Office, The National Security Strategy (Cm 7953, London, 2010) Part 1. 315

Amos Guiora, Genevieve Lennon, and Clive Walker

Similarly the US ‘National Security Strategy’ now emphasises the importance of economic security as an element of national security.3 This broadening of the meaning of ‘security’ is visible also on the international stage. Since the mid-1990s, there has been a move, spurred in particular by the UN, towards the concept of ‘human security’.4 Human security moves beyond a simple focus on state protection against physical aggression and envisages wider state responsibilities, which ‘encompass economic development, social justice, environmental protection, democratisation, disarmament, and respect for human rights and the rule of law’.5 Returning to the term homeland security, its usage is most associated with the US.6 Yet, even in that jurisdiction, there is no single definition, despite there being the DHS, the Homeland Security Act 2002,7 and an annual ‘homeland security mission’ budget of $72,446.3 million.8 The National Strategy for Homeland Security 2007 defined the concept as ‘a concerted national effort to prevent terrorist attacks within the United States, reduce America’s vulnerability to terrorism, and minimise the damage and recover from attacks that do occur’.9 This idea evolved with the DHS Quadrennial Review 2012, which adopted its homeland security ‘vision’ as ‘a homeland that is safe, secure, and resilient against terrorism and other hazards.’10 One of the authors proposed the following definition of homeland security when invited to testify before the US Congress in 2008: ‘A group of preventative measures undertaken by a state in an attempt to reduce the probability that a terrorist attack will occur.’11 These – and the various other government definitions12 – reveal core commonalities. First, homeland security is primarily preventive.13 It includes target-hardening and other activities that make the environment more challenging for terrorists to operate in. Second, accepting the potential for a successful attack, it emphasises resilience, encompassing both actions that reduce the impact of a successful attack and that enable faster recovery through improved resilience. Third, the definitions reflect the expansive security spectrum sketched above, ranging from terrorism, through terrorism and natural disasters to all manner of hazards.

3 4

5

6 7 8 9

10 11

12 13

316

Executive Office of the President, National Security Strategy (GPO, Washington DC, 2010). See Commission on Human Security, Human Security Now: protecting and empowering people (New York, 2003); A Sen, Development as Freedom (Random House, New York, 1999); A Zwitter, Human Security Law and the Prevention of Terrorism (Routledge, Abingdon, 2011). Kofi Annan, ‘Towards a Culture of Peace’ (22 August 2001) cited in I Gibson, ‘Human security: a framework for peace constructs, gendered perspectives and cosmopolitan security’ (2011) 17 Journal of Peace, Conflict and Development 84, 93. Some claim the concept does not exist outside the US: N Morag, ‘Does homeland security exist outside the United States?’ (2011) 7 Homeland Security Affairs. Pub L 107–296, 6 USC s 101. US Office of Management and Budget, Budget of the United States Government, Fiscal Year 2014 (Washington DC, 2012) Appendix. Homeland Security Council, National Strategy for Homeland Security (Washington DC, 2007) 3. Compare Homeland Security Council, Department for Homeland Security Strategic Plan (Washington DC, 2012). DHS, Quadrennial Homeland Security Review (Washington DC, 2014) 14. AN Guiora, Written Testimony Before a Hearing of the Committee on Homeland Security, US House of Representatives, The Resilient Homeland: How DHS Intelligence Should Empower America to Prepare for, Prevent, and Withstand Terrorist Attacks 11 (May 2008). Available at: www.gpo.gov/ fdsys/pkg/CHRG-110hhrg43940/html/CHRG-110hhrg43940.htm accessed 29 October 2013. See S Reese, Defining Homeland Security: Analysis and Congressional Considerations (Congressional Research Service, 7-5700, Washington DC, 2013). See White House, The National Strategy for Counterterrorism (White House, Washington DC, 2011) 11.

Homeland security

The impact of the concept of homeland security has been less pronounced in the UK. The UK’s counter-terrorist strategy, CONTEST, is primarily focused on risks from terrorism, but it is notable that the ‘Prepare’ strand refers to other civil emergencies identified in the National Risk Assessment, including pandemic influenza, coastal flooding, volcanic eruptions abroad, and severe wildfires.14 The broader concept of homeland security outwith terrorist threats is dealt with under the Civil Contingencies Act 2004.15 In terms of the narrower, counter-terrorismfocused concept of homeland security, the partially approximate UK equivalent of homeland security is the ‘Protect’ strand of CONTEST. Under the general aim of strengthening ‘protection against a terrorist attack in the UK or against our interests overseas’, the current objectives are to: ‘strengthen UK border security; reduce the vulnerability of the transport network; increase resilience of the UK’s infrastructure; and improve protective security for crowded places’.16 Protect thus focuses on high-risk, high-value targets, such as the critical national infrastructure (CNI).17 The core aspects are prevention and resilience building, both subsumed in this chapter under the rubric of protective security. Aspects of the ‘Prepare’ strand, which aims to mitigate the chances of terrorist attacks are also relevant, but, as evidenced by the reference to resilience building within Protect, these are intertwined with Protect’s core objective of protective security against terrorism. Comparing the US and UK, there is a common focus on prevention and resilience. In terms of differences, the US concept of homeland is geographically wedded to the US whereas CONTEST explicitly refers to UK interests domestically and overseas. Also, the US definition encompasses aspects of CONTEST’s Prevent strand, which targets the causes of terrorism and radicalisation, and, to a lesser degree, the Pursue strand.18 Although it is impossible to entirely disentangle counter-terrorist homeland security from the broader conceptions that also encompass natural and other hazards, this chapter shall focus on the former so far as possible. Homeland security shall be used hereafter to refer to: The measures undertaken by the state and its correspondent private (often corporatist) actors with the aims of reducing the probability that a terrorist attack will occur and increasing resilience of critical infrastructure and high risk or high value targets in the event of a successful attack.

Homeland security institutions and actors At first blush, the US and UK homeland security architectures appear diametrically opposed. The US has a centralised model at federal level, constructing homeland security around the DHS, though account must also be taken of the role of states and cities, which, more so in the aspect of natural disaster than counter-terrorism, can confusingly overlap with the DHS.19 The UK has adopted a diffused and distributed ‘lead government department’ (LGD) approach with 14 15 16 17 18 19

Home Office, The National Security Strategy (Cm 7953, London, 2010). See further C Walker and J Broderick, The Civil Contingencies Act 2004: Risk, resilience, and the law in the United Kingdom (Oxford University Press, Oxford, 2006). Home Office, CONTEST: The United Kingdom’s Strategy for Countering Terrorism (Cm 8123, London, 2011) paras 7.1, 7.5. For the latest agenda, see Cm 8848, London, 2014, para 2.25. See further C Walker, ‘The governance of the Critical National Infrastructure’ [2008] Public Law 323. For Prevent, see further Chapters 26 (Razak, Rehman, and Skolczylis) and 29 (Davis and Walker) in this book; Pursue is dealt with in Part II. See DA Farber and J Chen, Disaster Law and Policy (2nd edn, Aspen, New York, 2011). 317

Amos Guiora, Genevieve Lennon, and Clive Walker

looser and more variable structures and a wider allocation of responsibilities. Upon closer inspection, these distinctions are less stark.20 The DHS is far from being the sole federal agency responsible for homeland security, even leaving aside the inputs of state and local administrations. The Office of Management and Budget’s analysis of the 2014 Budget lists twenty-one different departments and agencies that received homeland security funding. While the DHS received the lions’ share, $35,717 million, the Department of Defense received $17,481 million, and the Departments of Energy, Health and Human Services, Justice, and State each received in excess of a billion dollars.21 Conversely, the Cabinet Office, one of the LGDs in the UK, has been described as a meta-LGD in emergencies in that it is the keeper of the systems which others must follow and can also set in motion forms of communication and coordination between departments. It can also oversee the developing response and seek to arrange further consideration if an LGD is being overwhelmed.22 The Cabinet Office thereby brings a degree of central oversight to the diffused UK system.

The US governmental structure The DHS, established initially as an administrative unit within the White House, became a Federal Office in 2002.23 It has been subject to censure since its inception, including regular poor ‘report cards’ and critical General Accountability Office (GAO) reports.24 Under the catch-all mission of achieving ‘[a] homeland that is safe, secure, and resilient against terrorism and other hazards’,25 it subsumed twenty-two departments and agencies, including the Federal Emergency Management Agency (FEMA), the US Coast Guard (USCG), the Transportation Security Administration (TSA), and the Secret Service. The fear, as demonstrated by the handling of Hurricane Katrina, was that ‘[t]his forced marriage may cause damage to the smaller agencies’,26 and it is unsurprising that fusing such disparate agencies has proved a Sisyphean task. This behemoth is now one of the largest US Government Departments, with over 240,000 employees in 2014, though the construction of a suitable headquarters is not expected to be completed until 2026.27 Corresponding to its sprawling size, the DHS has untenably broad missions, which are arguably ‘beyond the pale in terms of reasonableness’.28

20

21

22

23 24 25 26 27 28 318

See Walker and Broderick (n 15) ch 9; F Gregory, ‘National governance structures to manage the response to terrorist threats and attacks’ in P Wilkinson, Homeland Security in the UK (Routledge, Abingdon, 2007). OMB, Budget of the US Government, FiscalYear 2014: Analytical Perspectives (OMB, Washington DC, 2013) Table 23-1. See also Appendix – Homeland Security Mission Funding by Agency and Budget Account. Walker and Broderick (n 15) para 9.14. See further the Cabinet Office documentation at www.gov.uk/government/publications/list-of-lead-government-departments-responsibilities-forplanning-response-and-recovery-from-emergencies accessed 24 November 2014. Homeland Security Act 2002, Pub L No 107-296, 116 Stat 2135. For example, GAO Department of Homeland Security: Progress Report on Implementation of Mission and Management Function (GAO-07-454, Washington DC, 2007). DHS, Strategic Plan: Fiscal Years 2012-2016 (DHS, Washington DC, 2012). Walker and Broderick (n 15) 287. See www.dhs.gov/about-dhs, www.dhs.gov/news/2013/07/29/dhs-opens-new-headquarters-stelizabeths-campus accessed 20 August 2014. A Guiora, Homeland Security:What Is It and Where Are We Going? (CRC Press, Boca Raton, 2012) 9.

Homeland security

These are to: prevent terrorism and enhance security; secure and manage the US borders; enforce and administer immigration laws; safeguard and secure cyberspace; and ensure resilience to disasters.29 The DHS thereby embraces a considerably broader conception of ‘homeland security’ than the counter-terrorism agenda with which this chapter is concerned. While many of the seventeen major components, directorates, and offices within the DHS have some role in terms of our narrower definition of homeland security, we shall focus only on those with a major relevant role. These are the TSA, the USCG and the National Protection and Programs Directorate (NPPD). Along with FEMA and US Customs and Border Protection, these account for 75 per cent of the total DHS budget.30 FEMA is responsible for risk mitigation and management, building resilience, and managing the federal response to disasters, including disaster relief. As already indicated, it was roundly criticised in the wake of the Hurricane Katrina disaster in New Orleans.31 As a result, some reorganisation of the DHS took place under the Post-Katrina Emergency Management Reform Act 2006, which established new leadership positions, new missions, and clearer duties before and after disasters occur.32 These legal requirements were reinforced and expanded with additional mandates in President Obama’s Presidential Policy Directive 8: National Preparedness 2011 (PPD-8). However, doubts remain about the performance of FEMA.33 The TSA is one of the most visible arms of the DHS. Initially responsible only for aviation security, its remit has been broadened to include other forms of mass transportation, although aviation security continues to dominate. In terms of homeland security, the TSA has three components. First, the transportation security grants, which provide funding to protect critical surface transportation infrastructure and has a budget of $90 million for the fiscal year 2014.34 Second, there is law enforcement, discussed further below. Third, there are security programmes and screening, including passenger and baggage screening at airports. The Office of Infrastructure Protection of the NPPD leads and coordinates national programmes and policies on critical infrastructure security and resilience, and thereby covers some of the same ground as the UK’s Centre for the Protection of National Infrastructure (CPNI), discussed below. The Office of Cybersecurity and Communications deals with the security, resilience, and reliability of the cyber and communications infrastructure. The NPPD provides site assessments, advice, and training, as well as public awareness campaigns. It is responsible for implementing a number of the regulatory programmes, such as the Chemical Facility AntiTerrorism Standards, as well as operating voluntary programmes for a wide range of sectors.35

29 30 31

32 33 34 35

Homeland Security, The 2014 Quadrennial Homeland Security Review (Washington DC, 2014). Customs and Border Protection 22 per cent, FEMA 22 per cent, USCG 16 per cent, TSA 12 per cent and NPPD 4 per cent: DHS, Budget-in-brief: Fiscal Year 2014 (Washington DC, 2013) 5. Select Bipartisan Committee to Investigate the Preparation for and Response to Hurricane Katrina, A Failure of Initiative: Final Report of the Select Bipartisan Committee to Investigate the Preparation for and Response to Hurricane Katrina (GPO, Washington DC, 2006); Senate Committee on Homeland Security and Governmental Affairs, Hurricane Katrina: A nation still unprepared (Washington DC, 2006). PL 109-295. See Government Accountability Office, Homeland Security: Preparing for and Responding to Disasters (GAO-07-395T,Washington DC, 2007). Government Accountability Office, Measuring Disaster Preparedness: FEMA Has Made Limited Progress in Assessing National Capabilities (GAO-11-260T,Washington DC, 2011). TSA, FiscalYear 2014: Transit Security Grant Program (Washington DC, 2014). See www.tsa.gov/sites/ default/files/publications/pdf/grants/tsgp/FY_2014_TSGP_FAQ.pdf accessed 27 October 2014. See further: S Goodman, ‘Department Of Homeland Security's Chemical Facility Anti-Terrorism Standards and the Program’s Immediate Effect on American Industry’ (2011) 6 Environmental and Energy Law and Policy Journal 103. 319

Amos Guiora, Genevieve Lennon, and Clive Walker

It aims to ensure coordination between critical infrastructure partners, including through information sharing.36 The Federal Protective Service, housed within the NPPD, provides, inter alia, protective security for Federal property. Pursuant to the SAFE Port Act 2006,37 the DHS has been tasked with port and maritime transportation security. The lead organisation in delivering this programme is the USCG, although other parts of the DHS, such as the Visible Intermodal Prevention and Response (VIPR) teams, discussed below, are also involved.

The UK governmental structure There is no single department equivalent to the DHS in the UK, and instead, as already indicated, responsibility is diffused across various LGDs and agencies.38 There are two main lead Departments in the UK for counter-terrorism purposes. One is the Cabinet Office, which houses the Civil Contingencies Secretariat (reflecting some of the organisational functions of FEMA but without any operational delivery responsibilities), the National Security Council (NSC), and the National Security Secretariat (NSS). Second, the Home Office houses the Minister for Security and contains, as an executive unit, the Office for Security and Counter-Terrorism (OSCT). The NSC,39 National Security Adviser (NSA), and Minister of Security were intended to create a focal point for security concerns and to enable co-ordination of, and accountability over, security matters across Government. The NSC nominally meets on a weekly basis40 and is chaired by the Prime Minister with other ministers attending as necessary.41 It is responsible for implementation of the Strategic Defence and Security Review.42 It is supported by the NSA, currently Sir Kim Darroch, who acts as secretary to the NSC and is himself supported by the NSS, which provides the NSC with policy advice as well as co-ordinating security issues across government, and by three deputy advisers for intelligence, security, and resilience; defence, nuclear, and strategy; and, foreign policy. Some cross-cutting aspects of security have been hived off, such as the Office of Cyber Security and Information Assurance, which relates to both counter-terrorism and security more generally.43 This machinery deals with issues that 36 37 38 39 40

41 42

43

320

NPPD, Office of Infrastructure Protection Strategic Plan: 2012-2016 (Washington DC, 2012). PL 109-347, 31 USC s 5361. See SR Grillot, RJ Cruise, and VJ D’Erman, Protecting Our Ports: Domestic and International Politics of Containerized Freight Security (Ashgate, Basingstoke, 2010). See Walker and Broderick (n 15). The creation of the NSC was recommended by the Joint Committee on National Security Strategy, First Review of the National Security Strategy 2010 (2010-11, HL265/HC 1384). There were thirty-six meetings in 2011, declining to twenty in 2013 (Joint Committee on National Security Strategy, The work of the Joint Committee on National Security Strategy in 2013-14 (2013-14, HL 169/HC 1257)). Available at: www.gov.uk/government/organisations/national-security/groups/national-securitycouncil accessed 22 November 2014. Cabinet Office, Securing Britain in an Age of Uncertainty – The Strategic Defence and Security Review (Cm 7948, London, 2010). See Defence Committee, The Strategic Defence and Security Review and the National Security Strategy (2010-12, HC 761). See Cabinet Office, Cyber security strategy of the United Kingdom: safety, security and resilience in cyberspace (Cm 7642, London, 2009); Cabinet Office, Government ICT strategy-strategic implementation plan: moving from the ‘what’ to the ‘how’ (London, 2011); Cabinet Office, The UK cyber security strategy: protecting and promoting the UK in a digital world (London, 2011); Cabinet Office, Government Digital Strategy 2013. Available at: www.gov.uk/government/publications/government-digital-strategy/ government-digital-strategy accessed 22 November 2014; National Audit Office, The UK cyber security strategy: landscape review (2013-14 HC 890). See further T Legrand, ‘The citadel and its sentinels’ in TM Chen and others (eds), Cyberterrorism (Springer, New York, 2014).

Homeland security

go well beyond the narrow definition of homeland security, encompassing all hazards, domestic and foreign. The OSCT is more squarely positioned within our narrower, counter-terrorism dominated, definition of homeland security. It is responsible for implementing CONTEST and is divided into various directorates covering all aspects of CONTEST as well as some interception of communications.44 Two other bodies merit discussion: the National Counter-Terrorism Security Office (NaCTSO) and (already mentioned in passing) the CPNI. The NaCTSO, formed in 2002 as part of the Association of Chief Police Officers’ ‘Protect and Prepare’,45 focuses on the protection of CNI, crowded places and hazardous sites and materials. The primary innovation of the NaCTSO is their network of counter-terrorism security advisers who provide protective security advice within each police force area, providing a liaison between public and private sectors and between the various police and partner agencies (for example the NCA). The NaCTSO publishes guidance on various aspects of protective security, ranging from business continuity,46 through crowded places,47 to pre-employment screening.48 It also runs projects around particular aspects of homeland security, such as Project Argus, which aims to increase awareness of terrorism risks among business and some public sector stakeholders.49 The CPNI deals with the protection of CNI, no matter the origin of the threat, although terrorism is one of the major risks addressed. It is part of the domestic security service – MI5 – and works closely with Government Communications Headquarters, in particular the Communications and Electronic Security Group, which advises the government on cyber-threats,50 as well as the NaCTSO, with which it is co-situated. The Government determines which parts of the national infrastructure are ‘critical’, with CNI covering around 1 per cent of the total national infrastructure. This list is not made public. CPNI conducts security evaluations of CNIs, provides training, and produces various publications – some freely available; some restricted – and general advice on physical, electronic, and personnel protective security via its website. In addition to its assessment and advisory roles, it has a research and development role. This survey shows that neither jurisdiction adopts a single command and control structure. Instead responsibilities are diffused across a number of key organisations, with an additional layer of bodies dealing with broader, non-terrorist hazards. Within these key organisations, only a small number are dedicated exclusively to our narrower definition of homeland security. Both jurisdictions have developed an extensive range of policy documentation, though the American version is more accessible to the public.

Law enforcement and policing Much homeland security policing in both jurisdictions necessarily falls on local law enforcement officials. Detailing their involvement is beyond the scope of this chapter, though it should

44 45 46 47 48 49 50

Home Affairs Committee, Project CONTEST:The Government’s Counter-Terrorism Strategy (2008-09, HC 212) para 12. See www.acpo.police.uk/ACPOBusinessAreas/TAM/Protect.aspx accessed 26 November 2014. NaCTSO, Counting the Cost: Managing Risk, Insurance and Terrorism (London, 2010). For example, NaCTSO, Counter Terrorism Protective Security Advice for Stadia and Arenas (London, 2006). NaCTSO, Pre-employment screening: A good practice guide (NaCTSO, London, 2011). Available at: www.nactso.gov.uk/our-services#argus accessed 26 November 2014. European Union Committee, Protecting Europe against large-scale cyber-attacks (2009-10, HL 68-II) Memorandum by Department of Business, Innovation and Skills, Office of Cyber Security, Cabinet Office. 321

Amos Guiora, Genevieve Lennon, and Clive Walker

be noted that local police have a greater role in the US, where they are linked to national agencies through ‘fusion centres’ and ‘joint terrorism task forces’.51 For now, this chapter will instead focus on law enforcement and police forces with a specific role relating to homeland security. In the UK there are three major forces of note: the British Transport Police (BTP), the Civil Nuclear Constabulary (CNC) and the Ministry of Defence Police (MDP). The BTP are responsible for the railways across Great Britain (but not Northern Ireland), including the railway tracks, networks, stations, light maintenance depots, and a number of urban mass transportation systems, notably the London Underground and the Channel Tunnel.52 The providers of railway services finance them under a (compulsory) police service agreement.53 The BTP’s strategic five-year plan acknowledges their core mission to ‘protect the national rail infrastructure… including remaining at the forefront of counter-terrorism’.54 Given their experience of the 7/7 bombings, the importance of the rail network as part of the national infrastructure, and the on-going risk to surface mass transit systems from counterterrorism, it is unsurprising that this protective security is a key function.55 The idea of expanding their remit to cover the airports56 and/or all transportation sectors has occasionally been mooted and was due to be considered in the British Transport Police Authority’s quinquennial review of 2010, but this idea was subsumed within the Public Bodies Review and subsequent ‘bonfire of the quangos’.57 On-going austerity measures mean that large-scale reorganisation is unlikely at the moment. The MDP have jurisdiction over estates in the possession or under the control of the Ministry of Defence (MoD) and associated agencies, ordnance companies, or dockland contractors providing a service to the army, navy, or air force, or Crown property subject to the control or used by the MoD or Defence Council.58 While the MDP’s core responsibility is for MOD assets and personnel, it has as an increasing role over the protection of national infrastructure for external (that is, non-MoD) customers.59 Notably for the purposes of this chapter, the MDP has responsibility for protecting nuclear assets and escorting nuclear materials, as well as protecting against terrorist attacks on defence assets more generally. In addition, the MDP

51

52

53 54 55 56 57

58 59 322

Available at: www.dhs.gov/fusion-centers-and-joint-terrorism-task-forces accessed 26 November 2014. See US Senate Permanent Subcommittee on Investigations Committee on Homeland Security and Governmental Affairs, Federal Support for and Involvement in State and local fusion centers (Washington DC, 2012); T Monahan and PM Regan, ‘Zones of opacity: Data fusion in post-9/11 security organizations’ (2012) 27 Canadian Journal of Law and Society 301. Compare Vast Comité I, Fusion Centres Throughout Europe (Intersentia, Brussels, 2010). Railways and Transport Safety Act 2003. The BTP and the MDP have an extended jurisdiction under the Anti-Terrorism, Crime and Security Act 2001, s 100 if the officer reasonably suspects a) an offence is, has or is being committed; b) the powers and privileges are necessary to save life or prevent or minimise personal injury; or c) a constable from another force in Great Britain requests assistance. British Transport Police (Police Service Agreements) Order 2004, SI 2004/1522. BTP Authority, Strategic Plan 2013-19 (London, 2013) 13. See further Chapter 23 (Swain) in this book. Rejected by S Boys Smith, Independent Review of Airport Policing (Department for Transport, London, 2006). Hansard (House of Lords), vol 717 col WA320, 1 March 2010, Lord Adonis, Secretary of State for Transport: ‘I expect one of the areas for consideration to be the possibility of extending the jurisdiction of the British Transport Police’. Ministry of Defence Police Act 1984, s 2(2)(a)-(c). Not to be confused with the Royal Military Police which investigates actions of the army itself.

Homeland security

assists the UK Border Force during peak times and provides officers to assist with national and international events, such as the 2012 Olympics.60 Its external customers include private defence contractors, a number of UK (non-MoD) government departments and organisations, and the US Government in relation to the policing of US army bases in the UK.61 Walker predicted in 2008 that the MDP were ‘stumbling towards the assumption of the mantle of default CNI police’.62 Since 2008 the recession and consequential deep cuts to Departmental spending has placed significant hurdles in the way.63 While policing essential infrastructure is still among their priorities, the opportunity to move towards a more explicitly CNI role appears to have temporarily passed. The CNC is an armed police force the role of which is to protect nuclear sites that are not wholly or mainly used for defence purposes and to safeguard nuclear material in transit.64 Their jurisdiction encompasses every nuclear site and within five kilometres of such a site; all transshipment sites and any other place where it appears expedient to the constable to be in order to safeguard nuclear material in transit; and, every place where it appears expedient to the constable to be in order to pursue or detain a person reasonably believed to have removed or interfered with nuclear material being safeguarded by the CNC.65 The CNC works closely with both the nuclear plant operators and the Office for Nuclear Regulation. Unlike other police forces, its core role explicitly focuses primarily on counter-terrorism.66 In the US, the TSA has a number of personnel with law enforcement functions or aspects thereof. In relation to aviation, the most notable is the Federal Air Marshal Service. Although deployed since the early 1960s,67 the use of Federal Air Marshals increased exponentially post 9/11. They are armed, undercover officers who can arrest without warrant if a felony has been committed or is reasonably believed to have been committed.68 Others include surface transportation security inspectors and canine teams, which may be combined with various screening technologies. Since 2014 the TSA has deployed VIPR teams,69 authorised under the Implementing the Recommendations of the 9/11 Commission Act 2007, s 1303.70 As of 2012, there were thirty-seven operational VIPR teams.71 Any DHS asset can be used as part of the VIPR teams which have a fluid composition that is determined in consultation with local agencies.72 75 per cent of VIPR deployments are at mass surface transportation surface, with the remainder

60 61 62 63

64 65 66 67 68 69 70 71 72

Ministry of Defence Police Committee, Annual Report 2012-13 (MDP Committee, London, 2013) para 32. MDP and Guarding Agency, Annual Report and Accounts 2011-12 (HMSO, London, 2012). Walker, ‘Governance of the critical national infrastructure’ (n 17) 350. Their budget decreased from £261 million for 2011/12 to £185.7 million for 2014/15 (MDP and Guarding Agency Corporate Plan 2011-15 and Business Plan 2011-12 (MDP and Guarding Agency, London 2010) 10. Energy Act 2004, s 52. Energy Act 2004, s 56(1)(b). CNC Authority, Annual reports and accounts: 2013/14 (2014-15, HC 291) 11. PP Fitzgerald,‘Air marshals: the need for legal certainty’ (2010) 75 Journal of Air Law and Commerce 357 (they were initially called ‘sky marshals’). 49 USC s 44903. See further Chapter 22 (Lennon) in this book. PL 110–53. Office of Inspector General, Efficiency and effectiveness of TSA’s Visible Intermodal Prevention and Response Program Within Rail and Mass Transit Systems (OIG-12-103,Washington DC, 2012) 6. See www.tsa.gov/about-tsa/visible-intermodal-prevention-and-response-vipr accessed 10 November 2014. 323

Amos Guiora, Genevieve Lennon, and Clive Walker

deployed at airports.73 Other agencies within DHS with notable law enforcement functions are the USCG, which, although part of the military, has substantial maritime law enforcement functions, including patrolling, and the Federal Protective Service, mentioned above.

Private sector The private sector is significant both in terms of owning assets relevant to homeland security and in the provision of homeland security. In terms of being asset owners, 75 per cent of CNI in the US is in private hands.74 It seems likely that a similar proportion of British CNI is privately owned.75 Some of agencies discussed above, such as the CPNI, NaCTSO’s counter-terrorism security advisers, and the NPPD, all aim to improve the resilience and preparedness of the private sector and to facilitate private–public relationships in relation to counter-terrorism.76 In addition, major private security firms, such as G4S, Securitas, and Serco, have had longstanding involvement in protective security, including borders, transportation hubs, ports, airports, CNIs, large public events, and site security.77 G4S had an annual global revenue of £6 billion in 2012 for its ‘secure solutions’. Within this heading, its client base consisted of governments (27 per cent), private energy and utilities – which may be CNIs – (9 per cent), ports and airports (5 per cent), and transport and logisitics (3 per cent).78 Serco, in addition to running a number of railway services in the UK, works with the British military in, inter alia, providing protective security domestically, and IT support for one of the US intelligence agencies under their defence and science division.79 In October 2013, Serco and G4s were the subject of a Serious Fraud Office (SFO) investigation in the UK, which focused on their electronic monitoring contracts, a small number of which related to persons under TPIMs.80 G4S were referred to the SFO again in December 2013 for work relating to the British courts.81 Although initially barred from competing for governmental contracts, both have now been brought back into the fold, notwithstanding the SFO’s ongoing investigation.82 While the alleged irregularities relate primarily to invoicing, delivery and performance reporting were also under investigation.

73 74 75

76

77 78 79 80 81

82

324

Office of Inspector General (n 71) 10. J Moteff, Critical Infrastructure: The National Asset Database (CRS Report RL33648, Washington DC, 2007) 3. The Intelligence and Security Committee stated that ‘CNI is now largely in the hands of private enterprises’: Foreign Involvement in Critical National Infrastructure: The Implications for National Security (Cm 8629, London, 2013) para 1. In relation to counter-terrorism security advisers, see F Gregory,‘Private Sector Role in CounterTerrorism’ in P Wilkinson (ed.), Homeland Security in the UK: Future Preparedness for Terrorist Attack since 9/11 (Routledge, London, 2007) 323–5. See further below and T Jones and T Newburn, Private Security in Britain (Clarendon Press, Oxford, 1998). G4S, Annual Report 2012 (Crawley, 2013) 33. Serco ‘Annual Report and Accounts 2013’ (Hook, 2014) 24–33. SFO ‘G4S and Serco Investigation’ (4 November 2013) www.sfo.gov.uk/press-room/latest-pressreleases/press-releases-2013/g4s-and-serco-investigation.aspx accessed 20 August 2014. G Plimmer and H Warrell, ‘G4S faces second Serious Fraud Office investigation’ (FT, London, 19 December 2013) www.ft.com/cms/s/0/f558a910-6896-11e3-996a-00144feabdc0.html#axzz3 WC748SYt accessed 10 February 2015. F Maude, ‘Written ministerial statement’ (Cabinet Office 30 Jan 2014) (Serco); F Maude, ‘Written ministerial statement on G4s’ (Cabinet Office 9 April 2014) (Serco). Available at: www.gov.uk/ government/speeches/markets-for-government-services-g4s accessed 7 February 2015.

Homeland security

DHS ‘Prime Contractors’ are listed publicly in order to encourage smaller firms to subcontract. They include major aeronautical, technology, construction, and management experts.83 The Office of Inspector General within the DHS undertakes oversight.84

Effectiveness and accountability Having detailed the institutions involved in the provision of homeland security, the next consideration is how to ensure the delivery of homeland security is effective and accountable.

Effectiveness It is argued that effective counter-terrorism causes terrorist infrastructure to avoid or minimise serious damage, including damage to finances, intelligence, resources, or personnel, thereby preventing a particular, planned attack and/or postponing or impacting plans for future attacks while minimising collateral damage, exercising fiscal responsibility, and preserving constitutional norms, including civil liberties and human rights. This thesis incorporates the following premises: that terrorism is not wholly preventable; that counter-terrorism must have short-term (tactical) as well as long-term (strategic) components; and that counter-terrorism must be conducted while balancing competing interests of human life, financial cost, and civil liberty. These premises will now be considered in greater detail. Terrorism is not wholly preventable: Security analysts are wont to frame recommended counterterrorism measures in an effectiveness paradigm that demands foolproof safeguards. However, it must be clearly stated that terrorism is not wholly preventable. Simply because a terrorist attack succeeds does not mean existing counter-terrorism measures are ineffective. The inverse is also true: the absence of terrorist attacks does not necessarily indicate existing counterterrorism measures are effective. In this way, the appropriate approach is by way of a risk calculus, though the calculation of odds is often skewed or imperfect and so the mechanisms for precise calculation do not (and possibly cannot) exist.85 Counter-terrorism must have a short-term as well as a long-term perspective: Terrorist organisations define effectiveness through the prism of long-term strategic considerations.86 To understand the terrorist mindset, it is necessary to appreciate the determination, resilience, and singlemindedness with which terrorists work. Terrorists are willing to engage in a war of attrition with enormous personal hardship for protagonists and their family to achieve specific goals.87 Counter-terrorism, both strategically and tactically, must therefore be premised on this reality. Engaging in a never-ending cycle of violence is one means by which terrorist organisations signal to various audiences (the general public, followers, and the relevant government) their commitment to the cause. From the geopolitical perspective of terrorists, pressure exerted by the public under attack on the relevant government justifies continued attacks on innocent civilians. 83 84 85

86 87

See www.dhs.gov/prime-contractors accessed 26 November 2014. See www.oig.dhs.gov/ accessed 26 November 2014. See O Gross, ‘Chaos and rules’ (2003) 112 Yale Law Journal 1011; EA Posner and A Vermeule, ‘Accommodating emergencies’ (2003) 56 Stanford Law Review 605 and ‘Emergencies and democratic failure’ (2006) 92 Virginia Law Review 1091; Sunstein CR, Worst-Case Scenarios (Harvard University Press, Cambridge, 2007). See also Chapter 20 (Legrand, Bronitt and Stewart) in this book. AN Guiora, Global Perspectives on Counterterrorism (Aspen Publishers, New York, 2007) 14. See further L Richardson, What Terrorists Want (Random House, New York, 2006). 325

Amos Guiora, Genevieve Lennon, and Clive Walker

Counter-terrorism must be conducted in balance with competing interests of human life, financial cost, and civil liberty: Finding a suitable accommodation between national security and the rights of individuals is the most significant issue faced by liberal democratic nations developing a counter-terrorism strategy. Without this accommodation, democratic societies lose the very ethos for which they fight. As Benjamin Franklin once said, ‘those who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety.’88 A government’s ultimate responsibility is protecting its citizens, so that physical security is a vital value, but is only one value within the panoply of human security. The ‘Freedom from Fear’ of physical aggression enunciated by Franklin D Roosevelt in his 1941 State of the Union address (and cited in the preamble to the UN Universal Declaration of Human Rights 1948) should be applied in contemporary times to the threat of internal repression as much as external attack.89 The first step in creating an effective counter-terrorism measure is analysing the threat. To that end, the following questions must be answered: What is the threat the state faces? Who is responsible for planning the threat? Who is responsible for financing the threat? Who is responsible for carrying out the threat? When will the threat likely be carried out? Once these questions are answered, the threat can be placed on an imminence continuum with the understanding that one large threat may comprise smaller, more manageable, threats. The imminence continuum has four major benchmarks: imminent; foreseeable; long-range; and uncertain. ‘Imminent threats’ are those that are to be shortly conducted. ‘Foreseeable threats’ are those that will be carried out in near future (with no specificity). ‘Long-range threats’ are threats that may reach fruition at an unknown time. ‘Uncertain threats’ constitute those that invoke general fears of insecurity. Where a particular threat fits on the imminence continuum affects the accommodation between national security and competing human securities. There are seven factors that counter-terrorism measures must take into account in considering these threats. These are: the rule of law civil liberties, valid intelligence, the frequency of reporting, fiscal responsibility, geopolitical concerns, and collateral damage. The force of the first three factors may diminish with the imminence of a threat, conversely growing in force through foreseeable and long-range threats to uncertain threats. First, the rule of law protects free democracies and sets a basis for trust between nations. In order to best adhere to the rule of law, counter-terrorism measures should be drafted in advance of such an actual threat. Such measures should dictate which laws may be changed and to what extent, when facing an imminent threat. To wait until a threat is present denies government the opportunity to make careful and cautious choices that will provide security to the public, while balancing civil rights with legitimate national security considerations.90 A clear, comprehensive, and fully enacted counter-terrorism code would be a good model. A further option is to have some ‘break in case of emergency’ measures, such as affect the Terrorism Act 2000, Schedule 8, paragraph 38, under which the maximum duration of pre-charge detention may be temporarily extended from 14 to 28 days. Thus, a draft Detention of Terrorist Suspects (Temporary Extension) Bill would provide these more extensive detention powers. The draft

88 89 90

326

Benjamin Franklin, Pennsylvania Assembly: Reply to the Governor, 11 November 1755, in LW Labaree (ed.), The Papers of Benjamin (Yale University Press, New Haven, 1963) vol 6, 242. See N Strossen, ‘Freedom and fear post-9/11: are we again fearing witches and burning women?’ (2006-2007) 31 Nova Law Review 279. For the drawbacks, see House of Lords Constitution Committee, Fast-track Legislation: Constitutional Implications and Safeguards (2008-09, HL 116-1).

Homeland security

Bill has been subjected to debate and scrutiny, although it would, of course, still need to go through the usual legislative process albeit in the unavailing atmosphere of an emergency.91 Second, preserving civil liberties is an ultimate goal. But liberal democratic societies that treat all civil liberties as absolute may unnecessarily sacrifice human security to ideology.92 Even so, the compromise of liberties must be proportionate to legitimate security considerations, and mechanisms such as debates, inspections, and reviews to assess the working of that compromise are also essential. Third, validating intelligence is important so that policy can be as evidence-based as possible. To be valid, intelligence must be reliable, viable, and corroborated.93 Needless to say, reliable, viable, and corroborated intelligence may be difficult to obtain, and, even if obtained, offers no absolute guarantee. Nevertheless, reasonable effort must be made to obtain valid intelligence before action is taken. Once again, the level of imminence dictates the appreciation of reasonableness (both with respect to the reliability of the information and how much time is allotted to its corroboration). The remaining factors become more influential in cases of imminent threat, decreasing towards foreseeable and uncertain threats. First, the frequency of reporting is relevant also to the accountability discussion below. For example, the US Congress has mandated annual reports on terrorist threats.94 These reports, however, are too infrequent for gauging imminent and foreseeable threats and possibly inapplicable to uncertain threats. Counter-terrorism measures taken to address imminent threats should be reported to the legislature after the threat has passed or been addressed. Only in this way, can the legislature have meaningful review of significant counter-terrorism measures. Foreseeable threats should be reported to the legislature when the threat is identified. This reporting enables the legislature to assess the current work and the potential needs of different agencies. Second, financial costs necessarily limit the quantity of counter-terrorism measures. With limited resources, governments and their agencies must pick and choose which measures will most effectively counter short- and longterm threats. Although fiscal constraints are relaxed as a threat becomes more imminent, careful planning for potential attacks will allow careful use of financial resources even in the face of imminent threats. Thus, financial responsibility needs to be considered not only in light of the threat level, but also in light of an overarching counter-terrorism strategy. Third, geopolitical concerns arise because counter-terrorism raises international relations because the threat does not necessarily reside exclusively within one nation’s borders. Thus, inappropriate changes can affect the level of international influence and cooperation. However, when a threat is imminent, national rather than geopolitical concerns tend to predominate. Fourth, consideration of collateral damage demands the minimisation of disadvantages, such as community disruption or distrust. Ultimately, the public is willing to stomach greater collateral damage when a threat becomes more imminent.

91 92 93 94

See Joint Committee on the Draft Enhanced Terrorism Prevention and Investigation Measures Bill, Draft Enhanced Terrorism Prevention and Investigation Measures Bill Report (2012-13, HL 70, HC 495). AN Guiora, Global Perspectives on Counterterrorism (New York, Aspen Publishers, 2007), 19. Ibid 242. See also C Walker, ‘Intelligence and anti-terrorism legislation in the United Kingdom’ (2005) 44 Crime, Law and Social Change 387. Implementing the 9/11 Commission Recommendations Act of 2007 (PL 110-53) s 531 (6 USC s 121): The Assistant Secretary for Infrastructure Protection must compile an annual report notifying Congress of changes in the infrastructure vulnerability, an explanation of the greatest risks facing the country, and recommendations to mitigate those risks. 327

Amos Guiora, Genevieve Lennon, and Clive Walker

Accountability Accountability means articulating in a transparent manner the effectiveness or ineffectiveness of a particular counter-terrorism measure or strategy. The 9/11 Commission Report emphasises in detail the need for standards of accountability in developing and implementing counter-terrorism measures: ‘effective public policies… need concrete objectives.’95 Without specifying standards for accountability, the legislature unwittingly creates an unfettered executive. An unfettered executive, unrestrained by courts and legislatures, will skew any attempt to accommodate national security and individual rights.96 Furthermore, when neither the legislature nor the judiciary are allowed to play a role in the shaping and delivery of counter-terrorism, the executive becomes more prone to mistakes in the selection and application of policies.97 To take the FBI as an example, the FBI’s counter-terrorism measures have been held accountable internally and by external agencies. The US Office of Management and Budget (OMB) has applied its Program Assessment Rating Tool (PART).98 The OMB states that the FBI needs to set more ambitious goals, achieve better results, improve accountability, or strengthen its management practices.99 The OMB accepts that the FBI has greatly expanded its counter-terrorism programme, but finds it has only set performance measures for later years, during which it fell short of its goals in several areas, including validating information provided by human sources and ensuring that sources are reporting on the most important subjects. Furthermore, the FBI does not tie its budget requests to its performance goals, and its audits show financial management system deficiencies that compromise the Bureau’s ability to manage its programs. In the FBI’s domestic counter-terrorism work, the primary product is information and analysis rather than the historical arrests and convictions, making it far more difficult to measure the productivity of agents. For FBI agents with many years of experience doing criminal work, the shift to counter-terrorism required a fundamental reorientation of daily activities and of how the agents judged their own performance: ‘Richard Posner and others argue that the agency-wide changes in the FBI have not gone far enough, leaving the FBI with a bias in favour of criminal work and a staff that prefers criminal work to counterterrorism investigations.’100 To improve the FBI Counterterrorism Program, the government promises to ensure sources provide reliable information, increase training for counter-terrorism personnel, and strengthen the links between budget requests and performance levels.101 Another significant challenge to accountability is that many of the relevant actors do not fall under the purview of governmental or independent review bodies. For example, in the UK, most of Prevent falls outwith the remit of the Independent Reviewer of Terrorist Legislation.102 Some aspects are occasionally considered by Parliamentary Committees, such as the Home

95 96 97 98 99 100 101 102

328

9/11 Commission, Final Report of the National Commission on Terrorist Attacks Upon the United States (US Government Printing Office,Washington DC, 2004) 364. AN Guiora, Global Perspectives on Counterterrorism (Aspen Publishers, New York, 2007) 75. See also Chapters 7 (Ip) and 8 (Dickson) in this book. See www.whitehouse.gov/omb/performance_past accessed 17 December 2013. Program Assessment, FBI Counterterrorism Program, www.whitehouse.gov/omb/expectmore/ summary/10003802.2005.html accessed 29 October 2013. MS Feldstein, ‘Designing institutions to deal with terrorism in the United States’ (2008) 98(2) American Economic Review 122, 124. Program Assessment, FBI Counterterrorism Program, www.whitehouse.gov/omb/expectmore/ summary/10003802.2005.html accessed 29 October 2013. Privy Counsellor Review Committee, Anti-terrorism, crime and Security Act 2001 Review Report (2003-04, HC 100) paras 295, 311. See further Chapters 7 (Ip) and 8 (Dickson) in this book.

Homeland security

Affairs Committee, on an ad hoc basis. Prevent is discussed in the annual reports on CONTEST,103 but there is insufficient detail provided to allow meaningful accountability and performance indicators are still unspecified.104 The heavy involvement of the private sector and specialist police units further dull transparency in this area with many of the bodies involved having no regular reporting systems or, where they exist, producing glossy annual reports, which lack the required detailed performance analysis.105 Many of the public bodies involved, ranging from the CPNI through the various regulatory bodies, are also guilty of poor transparency and reporting. For example, the annual CONTEST reviews take a light-touch, corporatist approach describing activities and achievement in only the broadest of strokes. The ‘substantive’ discussion on CONTEST in the 2014 report ran to just over nine pages.106 A number of important reports have be written but never published.107 Even when a sector does come under independent oversight, there is no central structure of experts available to accurately access effectiveness. The result, as seen in the UK, is a series of contradictory reports regarding the preparedness of key systems of resilience.108 Overall, there is a lack of coherent governance in relation to the preparedness of many major sectors.109 Legislative and regulatory control over the relevant private sector actors is patchy at best. Some areas are subject to relatively high level of oversight notwithstanding their commercial nature – such as aviation – while other sectors are subject to regulation that does not focus on security, and in some cases the regulators have no power to consider security at all and would in any event lack the requisite expertise to do so. When subjected to regulation, the details are often found in delegated legislation, which does not offer an opportunity for the legislative oversight discussed above. Moreover, much of the regulation is voluntary, such as the National Fire Protection Association Standard 1600 preparedness standard for the private sector, which is based on the findings of the 9/11 Commission.110

Challenges There are challenges to effective and accountable homeland security, in addition to those just discussed, in terms of: displacement; interdependencies; private sector involvement; and securitisation.111 103 104 105 106 107 108

109

110

111

Such as Home Office, CONTEST Annual Report 2013 (Cm 8848, 2014). See Home Office, Prevent Strategy (Cm 8092, London, 2011) para 11.39. See, for example, the condemnation of Transportation Security Directorate’s ‘Spartan’ annual reports in House of Commons Transport Committee, UK Transport Security (HC 637, 2005-06) para 37. Home Office, CONTEST: Annual Report (n 103). See Hansard (House of Commons) 467, col 44ws 14 November 2007; (House of Lords) 703, col 153ws 22 July 2008. See, for example, Home Office, Addressing Lessons from the Emergency Response to the 7 July 2005 London bombings (London, 2006); London Resilience Forum, Looking Back, Moving Forward (London, 2006) compare with London Assembly, Report of the 7 July Review Committee (London, 2006). See, albeit in relation to general rather than terrorist risks facing the CNI: Joint Committee on the Draft Civil Contingencies Bill, Draft Civil Contingencies Bill (2002-03, HL 184, HC 1074) Appendix 4. Intelligence Reform and Terrorism Prevention Act 2004, s 7305(a)(3) (Pub L 108-458). See further JJ Farmer and JA Azzarello, ‘Private Sector Homeland Security Preparedness: Pay now or Pay (more) Later’ (2007) 238 New Jersey Lawyer 8. For further details, see C Walker,‘“Protect” against terrorism: in service of the state, the corporation, or the citizen?’ in D Jenkins, A Jacobsen, and A Henriksen, The Long Decade: How 9/11 Changed the Law (Oxford University Press, New York, 2014). 329

Amos Guiora, Genevieve Lennon, and Clive Walker

Displacement A perennial risk of counter-terrorism, as with ordinary crime prevention, is displacement.112 As links in the chain are strengthened, the risk is that terrorists simply transfer their attention to the weaker links. Concerns focus on transference to: different locations (domestically or internationally); different targets; and different attack modes. The post-9/11 improvements in aviation security made attacks on airplanes or airports considerably more challenging. Perhaps this factor, at least in part, prompted the switch to target mass surface transportation in the Madrid and London bombings.113 Similarly, the attempted use of liquid explosives clearly sought to circumvent the increased screening of hold luggage, hand luggage, and passengers for traditional explosives.114 Another example concerns the IRA’s bombing campaign in the City of London in the early 1990s. As the City implemented target hardening with the ‘ring of steel’,115 the IRA shifted their focus to ‘weaker’ targets within London and in other cities.116 Terrorist risks may also be displaced internationally to countries that have weaker protective security systems. This vulnerability may occur because the other country is technically or financially limited in the level of security it can provide or because the country does not believe itself at risk of terrorism. The aviation sector again provides examples such as the ‘freight bomb’ plot where bombs loaded onto cargo aircraft inYemen and destined for the US were discovered in the UK.117 The potential for displacement to other countries with weaker security structures had led the UK government to deploy aviation security officers overseas and provide funding to high-risk overseas airports.118 These vectors of displacement underline the importance of recognising the networked nature of contemporary security and the need for a high general baseline of security, rather than simply creating isolated ‘forts’.

Interdependencies Interdependencies are one the greatest challenges to homeland security. These occur internally, both within and between sectors, and externally between nations. These interdependencies amplify the risks that are faced because attacking one node can cause a cascading failure in other parts of the system. Buldyrev and others give the example of a power station shutdown in Italy in 2003, which led directly to the failure of the internet network, which in turn led to further power station failures.119 High levels of interdependency increase the risk of failure to individual systems as, while one system may have a high level of in-built redundancy, in interde-

119 112

113 114 115 116 117

118 330

Buldyrev and others ‘Catastrophic cascade of failures in interdependent networks’ (2010) 464 Nature 1025, 1025. TA Reppetto, ‘Crime Prevention and the Displacement Phenomenon’ (1976) 22 Crime and Delinquency 166; M Felson and RV Clarke, Opportunity Makes the Thief (Home Office, Police Research Series Paper 98, London, 1998). W Enders and T Sandler, The Political Economy ofTerrorism (Cambridge University Press, Cambridge, 2012) Ch 5. See Abdulla and others v Secretary of State for Justice [2011] EWHC 3212 (Admin). J Coafee, Terrorism, risk and the global city: towards urban resilience (Ashgate, Farnham, 2009). See C Walker, ‘Political violence and commercial risk’ (2004) 56 Current Legal Problems 531. V Dodd, R Norton-Taylor and P Harris, ‘Cargo plane bomb found in Britain primed to blow up over US’ The Guardian (London, 10 November 2010). See further: W Enders and T Sandler, The Political Economy of Terrorism (Cambridge University Press, Cambridge, 2012) Chs 4 and 6. Home Office, CONTEST: Annual Report 2013 (Cm 8848, London, 2014) para 2.31.

Homeland security

pendent networks ‘a random removal of a small fraction of nodes from one network can produce an iterative cascade of failures.’120 Another challenge presented by the highly networked contemporary environment is that weaknesses in the infrastructure that are beyond the state’s control may be exploited. Thus, for example, the weakness may reside within a privately owned component of the infrastructure (discussed further below) or may be situated in a network controlled by another nation state. Global maritime shipping is one example of such a networked system, which remains vulnerable to security weakness in the supply chain, notwithstanding attempts to increase the resilience of the system in recent years.121

Securitisation The contemporary breadth of ‘security’, combined with the extent and interdependent nature of ‘homeland security’ brings with it the danger that every hazard is viewed through the lens of security. As Sir David Omand warned,122 ‘if every problem looks like a security issue then ministers will be conditioned to see the response in terms of seeking more security, through seeking military solutions overseas and threatening further restrictions domestically on individual liberty and privacy’.123 As key actors start to shift towards a presumptively securitised stance, there is danger of existing in perpetual state of heightened risk. Accompanying this is a trade-off between trusting the public and securing the public, evident in UK in the legal requirement to report suspicions of terrorism to the police on pain of imprisonment of up to five years.124 Homeland security presents challenges in this context, in part due to its diffused nature. Measures of general application, by definition, have a diffused impact and consequentially infringements to specific individuals are less frequent. Aviation security provides a good case study: much of the increased security, from personal searches to the restrictions on liquids have been accepted with little comment and are presented to the public as a necessary evil: if you wish to travel, you must submit. It has been the site of some resistance, two examples beings the use of body scanners125 and the transference of data in relation to passenger name records between the US and EU.126 However, even when less routine restrictions on travel have been challenged, the courts have been unsympathetic. A recent example is the case of David Miranda, partner of a Guardian newspaper journalist, who was detained because he was involved in divulging the details of the Snowden leaks. Miranda was detained in Heathrow airport under the Terrorism Act 2000, schedule 7 at the behest of the Security Service and his

120 121 122 123 124 125

126

Ibid 1025. For example, the International Ship and Port Facility Security Code and the Customs-Trade Partnership against Terrorism. Former head of GCHQ and the first UK Security and Intelligence Coordinator. D Omand, Securing the State (Hurst & Co, London, 2010) 20. Terrorism Act 2000, section 38B. See Department for Transport, Code of Practice for the Acceptable Use of Security Scanners in an Aviation Security Environment (London, 2011); House of Commons Home Affairs Committee, Counter Terrorism Measures in British Airports (2009–10 HC 311) and Government Reply (2010–12 HC 456). Agreement between the United States of America and the European Union on the use and transfer of passenger name records to the United States Department of Homeland Security (OJ L215/5, 11 August 2012).There are also agreements with Australia (OJ 186/4, 14 July 2012) and Canada (OJ 82/15 21 March 2006). 331

Amos Guiora, Genevieve Lennon, and Clive Walker

laptop and phone were seized. His challenge to legality of the power has been unsuccessful.127 Another final reason for the often-muted response to the costs being imposed is that they fall upon the private sector. Such securitisation concentrates the focus of the police and other civil agencies disproportionately towards counter-terrorism. This is evident through the sharp rise of counter-terrorist budgets for the UK police and security agencies even while general police budgets are being severely cut.128 In the US, the homeland security mission budget has continued to increase year on year, although by a decreasing margin.129 More insidious is the ‘melding’ of security service and policing activities, whereby the two formerly distinct structures are increasingly working together, whether through co-located services – such as the CPNI and NaCTSO – as well as Fusion Centers, mentioned above, or joint membership of assessment bodies, such as the Joint Terrorism Analysis Centre. 130

Private sector involvement The substantial private sector involvement in homeland security presents a number of challenges in relation to accountability, including control, information-sharing, and the relationships between the public and private sectors. Some of the factors relating to accountability have been discussed above. The involvement of the private sector has prompted a ‘collaborationalist’ or ‘corporatist’ approach to relationships, which tend to be informal and are not naturally allied to high levels of transparency. There exists a tension between the corporatist model of accountability to shareholders and that of public agencies who are accountable to the public and the corresponding approaches to transparency. The UK’s Intelligence and Security Committee has noted that ‘[t]here is, potentially, a conflict between the commercial imperative and national security, as a result of increasing private ownership of CNI assets’.131 This tension applies equally outwith CNI and can be extenuated by the global reach of many of actors involved in homeland security. Individually and in combination these tensions pose a significant challenge to ensuring that homeland security operates in accordance with constitutionalism. Flowing from this corporatist model, acute concerns arise over information transfer. Corporations tend to be reluctant to divulge what may be commercially sensitive information yet oversight of resilience and preparedness requires full disclosure.132 There tends to be no compulsion upon corporations to provide relevant information, although there is provision for some information collection in the US under the Critical Infrastructure Information Act 2002.133 Conversely, at times companies have shown themselves to be too forthright in 127 128

129 130 131 132 133

332

R (Miranda) v Secretary of State for the Home Department [2014] EWHC 255 (Admin). See also Beghal v Director of Public Prosecutions [2013] EWHC 2573 (Admin). See C Walker and A Staniforth,‘The amplification and melding of counter-terrorism agencies: from security services to police and back again’ in A Masferrer and C Walker (eds), Counter-Terrorism, Human Rights And The Rule Of Law: Crossing Legal Boundaries in Defence of the State (Edward Elgar, Cheltenham, 2013). See, for example: OMB, Budget of the US Government, Fiscal Year 2014: Analytical Perspectives (Washington DC, 2013). See Walker and Staniforth (n 128). Intelligence and Security Committee, Foreign Involvement in Critical National Infrastructure: The Implications for National Security (Cm 8629, London, 2013) para 3. See also Chapter 20 (Legrand, Bronitt, and Stewart) in this book on challenges arising from the lack of available data when assessing the effectiveness of counter-terrorist measures more generally. Although see criticism in N Bagley, ‘Benchmarking, critical infrastructure security, and the regulatory war on terror’ (2006) 43 Harvard Journal on Legislation 47.

Homeland security

divulging customers’ data when requested by governments. An example of such is the transference of financial data held by the Society for Worldwide Interbank Financial Telecommunication (SWIFT) to the US Department of Treasury, which occurred following private negotiation between the Treasury and the companies. The actions were probably in breach of EU data protection laws.134 The private, and indeed mixed, sectors also present a challenge in terms of regulation. ‘Applying public interest regulation to what are mainly private systems and properties incurs regulatory costs… [and] may also hamper assistance and cooperation’.135 While compulsory regulation is not necessarily needed, a transparent and coherent system of review is. Central to this is information-sharing, which often goes against corporatist culture.

Conclusion Simply attempting to sketch the multiple lines of structures, powers, responsibilities, and multifarious relationships between the vast number of public and private agencies involved in homeland security is daunting. Neither the US nor UK polities have come near to mapping and justifying this terrain or to ensuring effective oversight. The agenda is potentially vast, just as society’s craving for reassurance against terrorism is seemingly endless.

134

135

Council of the EU Processing of EU Originating Personal Data by United States Treasury Department for Counter Terrorism Purposes – SWIFT (10741/2/07, 2007) 2. See further G Gonzalez Fuster, P De Hert, and S Gutwirth, ‘SWIFT and the vulnerability of transatlantic data transfers’ (2008) 22 International Review of Law, Computers and Technology 191. Walker, ‘The governance of the Critical National Infrastructure’ (n 17) 342. 333

22 Security inspections in the US and UK Suspicionless counter-terrorist stop and search Genevieve Lennon

Introduction Contemporary counter-terrorism operates primarily on a collective basis, however, most academic, judicial, policy, and political focus is on individualised counter-terrorism powers. One of the few collective powers to have gained attention on both sides of the Atlantic is non-border suspicionless counter-terrorist stop and search. The US and UK provide an interesting study in this area. Both use suspicionless counter-terrorist stop and search, and both have seen legal challenges to these powers with different outcomes, the respective powers being held to be constitutional in the US but in breach of human rights in the UK. There are also differences in format and usage, with the UK lately resiling from the use of power while the US still embraces it. Suspicionless counter-terrorist stop and search is a species of all-risks policing, defined by Walker as taking place when the ‘risk calculation shifts from persons to actions and objects’ and the police consequentially ‘treat anyone and everyone as a risk’.1 The default position whereby police powers cannot be deployed unless a person has acted in a criminal manner or way which raises suspicions of criminal activity is reversed: all persons entering the risky location(s) are deemed to be suspicious until proven otherwise. All-risks policing is deployed in circumstances where there is insufficient intelligence to predict who constitutes a risk. In the face of this uncertainty a form of precaution is demanded because of the potentially catastrophic impact of a significant terrorist attack, notwithstanding the low probability of such an attack or the impossibility of assigning a definite probability to it.2 Suspicionless counter-terrorist stop and

1 2

334

C Walker, ‘‘Know thine enemy as thyself ’: discerning friend from foe under anti-terrorism laws’ (2008) 32(1) Melbourne University Law Review 275, 277. C Sunstein, Laws of Fear: Beyond the Precautionary Principle (Cambridge University Press, Cambridge, 2005). See further G Lennon, ‘Precautionary tales: Suspicionless counter-terrorism stop and search’ (2015) 15(1) Criminology & Criminal Justice 44.

Security inspections in the US and UK

search fits this model by being triggered by a risky location wherein all persons are considered potentially suspicious. This chapter will argue that these extraordinary powers may be necessary in very limited circumstances, but that they must be effectively controlled. Currently, neither jurisdiction provides sufficient control over their suspicionless counter-terrorist stop and search powers. The US approach fails to demonstrate a convincing legal justification for the searches, any control over ‘front-end’ discretion or accountability over ‘back-end’ discretion.3 In the UK, although the latest iteration is an improvement on the previous power, it remains too widely drawn; in particular, it fails to address the virtually unfettered back-end discretion. That the current power has not been used once in Great Britain raises more general questions regarding its necessity. The second section outlines the general approach to stop and search powers in both jurisdictions and the specific format of suspicionless counter-terrorist stop and search powers. The legality of the powers is then analysed. The final sections assess the powers and propose a model framework that would address the objective of deterrence while adhering to constitutional norms. For reasons of space and to facilitate a coherent comparison, this chapter will focus on non-border suspicionless counter-terrorist stop and search, although border practices have also proven controversial in both jurisdictions.4 For ease, reference will be made to ‘powers’, rather than ‘powers and programmes’ and ‘reasonable suspicion’ rather than ‘reasonable suspicion or probable cause’, although these are not the appropriate terms for the US.

Suspicionless stop and search powers In the UK, excluding breach of the peace,5 the police must be empowered by statute to conduct stop and search. With the exception of Scotland,6 the police cannot stop and search subject to consent, although such searches may be conducted if the search is a condition of entry.7 The norm for statutory stop and search powers is to require reasonable suspicion that a prohibited item is being carried or an offence has, is being, or is about to be committed.8 There are four exceptions to this requirement, three of which concern counter-terrorism.9 First, under the Terrorism Act (TA) 2000, schedule 7: any person, vehicle, or vessel at designated borders, ports, and airports may be stopped and searched without suspicion (and subject to other powers which are outwith the focus of this chapter).10 Second, after prior authorisation,

3

4

5 6 7 8 9 10

Ip defines front-end discretion as that relating to the officer and, where relevant other officials, who authorise the use of the power; back-end discretion relates to the officer who actually conducts the stop and search: J Ip,‘The reform of counterterrorism stop and search after Gillan v United Kingdom’ (2013) 13(4) Human Rights Law Review 729. See: Abidor v Napolitano 990 FSupp2d 260 (2013); Beghal v DPP [2013] EWHC 2573 (currently under appeal to the UK Supreme Court) and R (Miranda) v Secretary of State for the Home Department [2014] EWHC 255 (Admin). See further: R Card, Public Order Law (Jordans, Bristol, 2000). See further: K Murray, ‘Stop and Search in Scotland: An Evaluation of Police Practice’ (SCCJR, Glasgow, 2014). Police and Criminal Evidence Act 1984 (Codes of Practice) (Statutory Powers of Stop and Search) Order 2002, SI 2002/3075. See now PACE, Code A, para 1.5. For example, under the Police and Criminal Evidence Act 1984, s 1, the police may stop and search any person or vehicle for stolen items or prohibited articles. The third is the Criminal Justice and Public Order Act 1994, s 60, which permits the police to search for offensive weapons in an authorised area. See further: C Walker, Terrorism and the Law (Oxford University Press, Oxford, 2011) paras 2.164–2.188. 335

Genevieve Lennon

suspicionless stop and search of persons and vehicles can be carried out in any police force area under TA 2000, section 47A. Both powers enable police and, in the case of Schedule 7, examining officers, to search: persons and anything carried by them; vehicles and their contents; persons in the vehicles and anything carried by them; and, in the case of Schedule 7, ships or aircraft and anything on them. Third, in Northern Ireland the police may stop and search a person in a public place for unlawful munitions and transmitters, without reasonable suspicion.11 In the US, the Fourth Amendment prohibits ‘unreasonable searches and seizures’ and requires that warrants be issued only upon probable cause. The police may therefore only conduct searches without a warrant in a limited, although ever-expanding, number of situations. In addition to the permitted stop and search by consent,12 suspicionless stop and search may be divided into those triggered by individualised suspicion falling short of probable cause, such as ‘Terry’ stops,13 and those without individualised suspicion, which are the focus of this chapter. The latter contains three major subcategories. First, there are administrative searches, which began as a means of enabling warrants to be issued so that health and safety inspections could be carried out without individualised suspicion.14 Nominally a ‘closely guarded category of constitutionally permissible suspicionless searches’,15 this diffuse category includes regulatory offences,16 immigration17 and sobriety checkpoints,18 drug testing of students and employees,19 and inventory searches.20 There must be a substantial governmental interest; warrantless inspections must be necessary to further the regulatory scheme in question; and, the regulatory statute must properly define the scope of the search and limit the discretion of inspecting officers.21 Such searches must not aim to uncover evidence of a crime.22 Second, special needs whereby a suspicionless search may be reasonable if there are ‘exceptional circumstances in which special needs, beyond the normal need for law enforcement, make the warrant and probable cause requirement impracticable’.23 In such circumstances, reasonableness is determined by balancing the governmental interest against the privacy intrusion. While nominally required to go beyond ‘normal law enforcement’, this category includes a wide range of activities that one would usually associate with such practices, including various aspects of border control24 and sobriety checkpoints.25 The final category is national security, which relates only to wiretaps and is not relevant to this chapter.26

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

336

Justice and Security (Northern Ireland) Act 2007, sch 3, para 4(1)(a). Note that reasonable suspicion is required for searches when not in a public place (sch 3, para 4(1)(b)). Davis v US, 328 US 528, 66 S Ct 1256 (1946). Terry v Ohio, 392 US 1 (1967). Camara v Municipal Court of San Francisco, 387 US 523 (1967). Chandler v Miller, 520 US 305, 309 (1997). Camara (n 14). US v Martinez-Fuerte, 428 US 543 (1976). Michigan Department of State Police v Sitz 496 US 444 (1990). Vernonia v Acton, 515 US 646 (1995); National Treasury Employees Union v Von Raab, 489 US 656 (1989). South Dakota v Opperman 428 US 364 (1976). New York v Burger, 482 US 691 (1987). Camara (n 14). New Jersey v TLO 469 US 325, 351 (1985). Martinez-Fuerte (n 17). Sitz (n 18). United States v US Dist Court (Keith), 407 US 297 (1972); Zweibon v Mitchell, 516 F 2d 594, 614 (DC Cir 1975). For more on wiretapping, see Chapter 9 (McKay and Moran) in this book.

Security inspections in the US and UK

Counter-terrorist stop and search Suspicionless counter-terrorist stop and search in the UK dates to the early 1990s when it was instituted in response to the IRA’s bombing campaign against the City of London.27 Having implemented the ‘ring of steel’,28 which combined random stop and search with target hardening, the Prevention of Terrorism (Temporary Provisions) Act 1989 was amended to provide a legal basis for these suspicionless stops and searches.29 This was replaced by the TA 2000, section 44. The current power, under the TA 2000, section 47A,30 was instituted after section 44 was held to infringe the right to a private life under the ECHR, Article 8, in Gillan v United Kingdom.31 There has been only one authorisation under section 47A since its enactment, by the Police Service of Northern Ireland.32 The following discussion will therefore focus predominantly on section 44 before explaining the changes under section 47A. The format of the power has remained the same since 1994: an Assistant Chief Constable or Chief Constable (or equivalent) may authorise its use in a given area for a maximum time period (currently fourteen days)33 if the officer reasonably suspects that an act of terrorism will take place and the authorisation is necessary to prevent such an act.34 A uniformed officer can then stop and search any person or anything carried by them or vehicle for anything that would constitute evidence that the vehicle is being used for terrorism or the person is a terrorist.35 Failure to submit to a search is a criminal offence.36 The Secretary of State must approve the authorisation within forty-eight hours or it will lapse without affecting the legality of actions taken in the interim.37 The two ‘heaviest’ users of section 44 were the Metropolitan Police Force (MPS) and the BTP. The MPS accounted for 80 per cent of the total section 44 searches conducted by Home Office Forces,38 searching 461,348 people between 2001/2002 and 2009/2010.39 The BTP stopped and searched approximately 215,735 people between 2005/2006 and 2010/2011.40

27 28 29 30 31 32 33 34 35 36

37 38 39

40

Suspicionless stop and search has earlier antecedents in Northern Ireland, dating to the Northern Ireland (Emergency Powers) Act 1973, s 13. See also s 16 (suspicionless stop and question). J Coafee, Terrorism, Risk and the Global City:Towards Urban Resilience (Ashgate, Surrey, 2009). Prevention of Terrorism (Temporary Provisions) Act 1989, s 13A (inserted by the Criminal Justice and Public Order Act 1994, s 81). Inserted by the Protection of Freedoms Act 2012, s 61. App No 4158/05, 12 January 2010, (2010) 50 EHRR 45 (Gillan (ECtHR)). D Anderson, The Terrorism Acts in 2013 (Home Office, London, 2014) paras 6.9-6.11. TA 2000, schedule 6B, para 6. Previously 28 days (TA 2000, s 46(2); PTA 1989, s 13A(8)). Previously ‘expedient’ rather than ‘necessary’ (TA 2000, s 44(3); PTA 1989, s 13A(1)). Previously articles that could be used in connection with terrorism (TA 2000, s 45(1)(a); PTA 1989, s 13A(3)(b)). Currently resulting in up to one month’s imprisonment and/or a level 3 fine (Police Act 1996, s 89(2)). Previously resulting up to six month’s imprisonment and/or a level 5 fine (TA 2000, s 47; PTA 1989, ss 13A(6)-(7)). TA 2000, schedule 6B, para7 (formerly s 46(5)-(6)). English and Welsh police forces under the control of the Home Office.This excludes the MDP, the CNC, and the BTP. Home Office, Statistics on Race and the Criminal Justice System (Home Office, London, 2002–2006); Ministry of Justice Statistics on Race and the Criminal Justice System 2006-2008/09 (MOJ, London, 2006–2010). Hereafter ‘Section 95 statistics’. British Transport Police (BTP), Annual Reports: 2005/06 to 2010/11 (BTP, London, 2006–2011); MOJ, Statistics on Race and the Criminal Justice System 2010 (MOJ, 2011). Note the figures derived from the BTP’s annual reports are usually rounded. No figures were provided prior to 2005. 337

Genevieve Lennon

Until mid-2009, the two forces had force-wide, rolling authorisations in place.41 Following criticism of this approach and an impending ECtHR appeal, both forces changed their approaches.42 The MPS instigated the ‘patchwork authorisation’ system whereby each borough was divided into three levels, two of which concerned suspicionless counter-terrorist stop and search.43 Level 1 areas, primarily focused on iconic and high-risk targets, were subject to rolling section 44 authorisations. Level 2 areas responded to specific incidents, such as large social events or specific intelligence, with authorisations applied for in advance. The BTP adopted the three-strand approach. The first strand concerned activity that fell short of reasonable suspicion, which could be informed by the use of behaviour-assessment techniques, such as the Behaviour Assessment Screening System.44 The second strand was pre-planned and intelligence led where the patrol was looking for someone or something in particular. The final strand was ‘visible search activity’, which was ‘not about who you stop, it’s just about stopping people’.45 Turning to the US, suspicionless counter-terrorist stop and search dates from the late 1960s in relation to borders and airports.46 A second type, relating to surface mass transit systems, dates from 2004.47 A possible third category is at sports stadia, but there is conflicting precedent.48 Suspicionless counter-terrorist stop and search at public protests49 and around critical infrastructure have been held to be unconstitutional.50 The focus will therefore be on mass transit suspicionless counter-terrorist stop and search. The three leading cases concern the New York subway,51 the trains and buses of the Massachusetts Bay Transportation Authority (MBTA),52 and the Lake Chaplain ferry between Grand Isle, Vermont and Plattsburgh, New York.53 Each adopted slightly different approaches, but the following were characteristic of all. First, unlike the UK, notice was given to passengers. Second, inspections were of backpacks and ‘containers’ large enough to conceal an explosive device and, in the case of the ferry searches, of vehicles’ trunks and a visual inspection of the car’s interior but did not extend to personal searches. Third, people could leave the transit system rather than submit to a search.

41 42 43 44 45 46

47

48

49 50 51 52 53 338

G Lennon,‘Policing terrorist risk: Stop and search under the Terrorism Act 2000, section 44’ (PhD thesis, University of Leeds, 2011). See Lord Carlile, Report on the operation in 2005 of the Terrorism Act 2000 (Home Office, London, 2006) paras 96-98. The following paragraphs draw on previous research conducted by the author. See: Lennon ‘Policing Terrorist Risk’ (n 41). European Agency for Fundamental Rights ‘Understanding and preventing discriminatory ethnic profiling: a guide’ (European Agency for Fundamental Rights,Vienna, 2010) 59. BTP officer quoted in Lennon, ‘Policing Terrorist Risk’ (n 41). R Simmons, ‘Searching for terrorists: why public safety is not a special need’ (2010) 59 Duke Law Review 843. Searches conducted at government buildings – dating from the same period (and equally used in the UK) – are best viewed as a condition of entry. Transit Cooperative Research Program (TCRP), ‘Public transportation passenger security inspections: a guide for policy decision makers’ (TCRP Report 86,Transportation Research Board, Washington DC, 2007) 4. Johnston v Tampa Sports Authority, 530 F 3d 1320 (11th Cir 2008) – constitutional (carried out by private law enforcement). Compare State v Seglen, 700 NW 2d 702 (ND 2005) – unconstitutional (carried out by public law enforcement). Bourgeois v Peters, 387 F 3d 1303, 1306 (11th Cir. 2004); Stauber v City of New York, Nos 03 Civ 9162, 03 Civ 9163, 03 Civ 9164, 2004 US Dist LEXIS 13350. Commonwealth v Carkhuff, 804 NE 2d 317, 318 (Mass 2004) (near a reservoir). MacWade v Kelly, 460 F 3d 260, 271 (2d Cir 2006). American-Arab Anti-Discrimination Comm. v Mass. Bay Transp. Auth., No 04-11652-GAO, 2004 WL 1682859 (D Mass July 28, 2004) (MBTA). Cassidy v Chertoff, 471 F 3d 67, 70 (2d Cir 2006).

Security inspections in the US and UK

The first transit system to instigate suspicionless counter-terrorist stop and search was Boston’s MBTA during the Democratic National Convention in 2004, which was unsuccessfully challenged in Arab-American Anti-Discrimination Committee v MBTA.54 All passengers on the bus or subway whose route passed near where the Convention was being held had their handluggage searched. While notice was given that carry-on luggage could be subject to search, the fact that all passengers entering the specific areas would have their luggage searched was not disclosed. These suspicionless stops and searches have continued with the distinction that they are now conducted on a random basis,55 with Transportation Security Administration (TSA) officers assisting at some sites.56 The New York Police Department’s (NYPD) ‘container inspection program’, upheld as constitutional in MacWade v Kelly, involved daily suspicionless counter-terrorist stop and search checkpoints at selected subway stations chosen in a manner that appeared random but was in fact deliberate.57 Supervising officers determined a selection rate, such as every fifth passenger, and officers conducted searches on that basis. The Lake Chaplin ferry attendants conducted ‘random’ searches of pedestrian’s carry-on luggage and visual inspections of the vehicle’s interior and/or boot.58 The attendants ‘did not appear’ to screen luggage within the vehicles.59 Upheld in Cassidy v Chertoff, there are two differences between this and the other cases.60 First, the power has a statutory base.61 Second, if people chose not to travel rather than submit to the search, a report was made to the National Response Center.62 Due to the general lack of governing statutes and the absence of publically available data, it is difficult to ascertain definitively the formats and/or usage of suspicionless counter-terrorist stop and search in the US, but it is deployed more widely than the cases indicate. The Washington Metropolitan Area Transit Authority and the Port Authority Trans-Hudson service have used it.63 The TSA’s Visible Intermodal Prevention and Response (VIPR) teams which conduct, inter alia, passenger and baggage screening, carried out more than 3,700 operations on mass transit and passenger railway systems in 2010/11.64 ‘Random passenger bag inspections’

54 55 56 57 58 59 60 61 62

63

64

TCRP (n 47) 4. MBTA. ‘[T]hrough the use of a computer generated sequence of numbers’ (MBTA ‘MBTA Security Inspections’ www.mbta.com/transitpolice/default.asp?id=19050 accessed 24 April 2014. As permitted under 49 USC s 114(d) (Transportation Security Administration). MacWade (n 51). Cassidy (n 53). Ibid 73. Ibid 73. The Maritime Transportation Security Act 46 USC ss70101–70119 (2006). Implementation of National Maritime Security Initiatives, 68 Fed Reg 39,240, 39,243 (July 1, 2003). It is not entirely clear that this is the body to whom the incident must be reported but it appears to be as all other security incidents must be reported to the National Response Center (33 CFR s 104.265). Washington Metropolitan Area Transit Authority, ‘Metro Transit Police to begin bag inspection program’. Available at: www.wmata.com/about_metro/news/PressReleaseDetail.cfm?Release ID=2324 accessed 18 June 2014; Port Authority, ‘Security Advisory to Passengers’. Available at: www.panynj.gov/path/print-security-advisory.html accessed 18th June 2014. Authorised under 6 USC s 1112. J Pistole, ‘Statement before the United States Senate Homeland Security and Governmental Affairs’ June 22, 2011’. Available at: www.tsa.gov/sites/default/files/ publications/pdf/testimony/062211_tsa_pistole_hsgac_rail_transit_security.pdf accessed 27 June 2014. See further: Government Accountability Office, Transportation security: key actions have been taken to enhance mass transit and passenger rail security, but opportunities exist to strengthen federal strategy and programs (GAO,Washington, 2009, GAO-09-678). 339

Genevieve Lennon

are conducted as part of Operation RAIL SAFE, jointly operated by Amtrak, TSA, and local law enforcement agencies.65 Some programmes appear to be coercive. The TCRP reported in 2007 that some, unnamed, agencies followed and questioned people who exited the station rather than be searched and that one agency viewed passengers as having no right to refuse a search once they reached the selection point.66 Given the lack of data on these programmes, the focus will remain on the searches detailed in the cases above.

Legality UK The principal suspicionless counter-terrorist stop and search case in the UK, relating to section 44, is R (Gillan) v Commissioner of Police of the Metropolis,67 appealed to the ECtHR as Gillan v United Kingdom.68 The applicants argued that the authorisation was ultra vires and that their rights to liberty, under the ECHR, Article 5, to a private life, under Article 8, and to freedom of expression and assembly, under Articles 10 and 11, were infringed. The domestic courts rejected each argument while the ECtHR upheld their complaint in relation to Article 8. The ECtHR ruled that a routine section 44 stop and search would engage Article 8, noting in particular the public nature of the search and that it was coercive.69 The key issue was whether the power was prescribed by law and could thus rely on the national security justification under Article 8, paragraph 2. In holding that it was not, the ECtHR pointed to the lack of sufficient safeguards against the arbitrary use of the power. The MPS’ rolling, force-wide authorisations over a period of more than eight years underlined the total ineffectiveness of the temporal and geographical limits. The Secretary of State had neither amended nor rejected any authorisation, suggesting a rubber-stamping role.70 In light of the judicial treatment domestically, recourse to judicial review was not a viable system of review. The final nails in section 44’s coffin were the extraordinary breadth of discretion granted by the authorisation trigger of ‘expediency’, which precluded any consideration of proportionality, and the nearly unfettered discretion of officers in choosing whom to stop and search. The Government ultimately responded by repealing section 44 and replacing it with section 47A.71 This raises the authorisation trigger to ‘necessary’ and requires that the authorising officer ‘reasonably suspects’ an act of terrorism will take place.72 The accompanying Code of

65 66 67 68 69 70

71

72 340

AMTRAK ‘Operation RAILSAFE’, Available at: https://police.amtrak.com/operation-railsafe. html accessed 16 June 2014. TCRP (n 47) 29. [2003] EWHC 2545 (Admin); [2004] EWCA Civ 1067; [2006] UKHL 12. Note also Re Fox, McNulty and Canning [2013] NICA 19; Re McAreavy [2014] NIQB 62. Gillan (ECtHR) (n 31). Gillan (ECtHR) (n 31). Gillan (ECtHR) (n 31) [80]. The Secretary of State did in fact query some section 44 authorisations and rejected a ‘few’ (Lennon ‘Policing Terrorist Risk’ (n 41)), although the sense of rubber-stamping was reinforced by the later disclosure that thirty-four authorisations purported to run over the maximum twenty-eight days (Hansard (HC) vol 511 cols 24WS-28WS 10 June 2010 (Herbert, Nick MP)). As an interim measure, s 44 was restricted to vehicular searches with the authorising trigger raised to ‘necessary’ (HC vol 513 col 540 8 July 2010 (Theresa May, MP). A remedial order was then passed, amending the power in essentially the same terms as the current power (Terrorism Act 2000 (Remedial) Order 2011, SI 2011/631). TA 2000, s 47A(1).

Security inspections in the US and UK

Practice provides further detail on the authorisations, stating that the following will, of themselves, provide an insufficient base for authorisation: public reassurance; deterrence; or, intelligence-gathering.73 The geographical and temporal limits must be no more than necessary to prevent the act of terrorism and the maximum time-limit is halved to fourteen days.74 Rolling authorisations are prohibited but this is weakened by the Code envisaging forces applying for successive authorisations.75 The object of the search is narrowed to evidence that the vehicle is being used for terrorism or the person is a terrorist, although considerable discretion remains given the broad definition of ‘terrorism’ under the TA 2000, section 1.76 Despite the improvements, it is debatable whether the new power sufficiently addresses the concerns of the ECtHR, with much depending on police practices.77 In terms of front-end discretion, there is now consideration of proportionality, but the discretion remains broad and much will rest on whether the Secretary of State takes a more robust approach than hitherto. The restrictions in the Code of Practice suggest that this power was conceived of as a restrictive tool to respond to specific terrorist threats, albeit perhaps against diffuse targets.78 Fourteen days is overly long for such a targeted power. The back-end discretion at the point of application by operational officers has been tweaked but remains virtually unfettered. Some of the restrictions in the Code, breach of which gives rise to neither criminal nor civil liability but is admissible in evidence, should have been contained in the statute. Finally, there is still no requirement to publicise authorisations, whether ex ante or post hoc.

US The US reveals variety not only in terms of the format of its suspicionless counter-terrorist stop and search powers but also in terms of the legal justification thereof. In the MBTA case, the District Court viewed suspicionless counter-terrorist stop and search as falling within the administrative searches doctrine in a brief judgement that drew heavily upon the jurisprudence and justifications for airport searches.79 Counter-terrorism easily met the first part of the test, being a substantial government need or public interest. In determining that the privacy intrusion was reasonable in scope and effect, the District Court accepted that the intrusion was ‘not insignificant’.80 It also pointed to the mitigating steps: the notice given to passengers; the limited scope and duration of the search programme; the lack of discretion afforded to officers; and, the requirement of record keeping.81 It will be remembered that, in contrast to the facts of the case, the current programme is not fixed in its scope or duration. The Courts of Appeal for the Second Circuit upheld the constitutionality of the NYPD’s container inspection programme on the basis of the special needs doctrine.82 It noted that ‘courts traditionally have considered special the government’s need to “prevent” and

73 74 75 76 77 78 79 80 81 82

Home Office, Code of Practice for the Exercise of Stop and Search Powers (Home Office, London, 2012) para 4.1.6. TA 2000, s 47A(1)(b). Home Office (n 73) para 4.3. TA 2000, s 47A(4). See further: Ip (n 3); E Cape,‘The counter-terrorism provisions of the Protection of Freedoms Act 2012: preventing misuse or a case of smoke and mirrors?’ [2013] Criminal Law Review 385. See also Lord Macdonald, Review of counter-terrorism and security powers (Cm 8004, London, 2011). MBTA (n 52). Ibid 3. Ibid 3–4. MacWade (n 51). 341

Genevieve Lennon

“discover… latent or hidden” hazards’, explicitly linking suspicionless counter-terrorist stop and search to airport searches. Such preventive policing is ‘distinct from ordinary post hoc criminal investigation’.83 In applying the balancing test, the Court held, with little discussion, that the government interest was immediate and substantial. There was no requirement of an express threat or imminence; all that was required was that ‘the “risk to public safety [be] substantial and real” instead of merely “symbolic”’.84 The Court pointed to the desirability of the subway as a target and the mass transit bombings in Madrid and London as evidence that the threat was substantial and real. The intrusion to privacy was viewed as minimal for the same reasons as in MBTA, with the distinctions that record keeping was not cited and discretion was limited by the pre-determined selection rate of passengers. In considering effectiveness, the Court showed a high level of deference, refusing to carry out a ‘searching examination of effectiveness’,85 asking instead whether it was a ‘reasonably effective means’ of deterring and detecting a terrorist attack.86 It discussed only deterrence, with the sole justification being that ‘terrorists seek predictable and vulnerable targets, and the Program generates uncertainty that frustrates that goal’.87 The Court rejected the argument that the ability of passengers to leave and attempt to re-enter at another time made the stops and searches inefficient, stating that such reasoning would create a perverse result whereby the greater the privacy intrusion, the more likely it would satisfy the Fourth Amendment.88 In Cassidy, the Courts of Appeal for the Second Circuit adopted the special needs approach and upheld the Chertoff ferry suspicionless counter-terrorist stop and search programme as constitutional.89 It provided a more detailed and careful reasoning than the previous decisions, possibly reflecting the inclusion of the then Judge Sotomayor on the bench. The case relied heavily on MacWade and adopted broadly similar reasoning in holding that the government interest was sufficient and the privacy intrusion was minimal. The Court did not mention the consequences that arose from refusing a search. The Court refused to compare ferry transportation with airlines, which formed such a crucial part of the MBTA reasoning and featured heavily in MacWade.90 Efficiency was examined in a cursory manner to the standard of reasonableness, with substantial deference paid. The plaintiffs argued that ‘because the threat of terrorism is omnipresent, there is no clear limit to the government power to conduct suspicionless searches’.91 This was rejected on the facts, but the Court accepted that it was ‘a legitimate concern’, suggesting that in different circumstances the argument may be given more weight.92 Trying to shoehorn suspicionless counter-terrorist stop and search into the administrative search or special needs categories is problematic for a number of reasons. In terms of administrative searches, terrorism is incomparable with regulatory schemes governing building inspections or drug use among public employees characteristic of the category. These speak to public safety concerns typically governed by soft-law and/or private law. Terrorism is a (very

83 84 85 86 87 88 89 90 91 92 342

Ibid 270–1, citing Von Raab (n 19). Ibid 272, citing Chandler (n 15), 322–3. Ibid 273, citing Sitz (n 18), 453–4. Ibid 273, citing Board of Education of Independent School District v Earls 536 US 822, 837 (2002). Ibid 274. Ibid 275. Cassidy (n 53). Ibid. Ibid 80. Ibid 80–1.

Security inspections in the US and UK

serious) crime to the collective. It stretches credibility to compare the TSA as a regulator to Housing Inspectors except at the most superficial level. In relation to special needs, suggesting that preventive and/or deterrent objectives is outwith ‘normal’ law enforcement fails to acknowledge that prevention is a core function of counter-terrorism policing in the US and internationally,93 and a major objective of much counter-terrorist legislation, as underlined by the various preparatory and precursor terrorism offences.94 In contrast to MacWade and Cassidy, the Courts of Appeal for the Eleventh Circuit in Bourgeois, in ruling that suspicionless counterterrorist stop and search at a public protest was unconstitutional, rejected the special needs argument because the purpose of the search was to secure the objectives that motivated the enactment of the law.95 In addition to these difficulties, neither framework provides sufficient control over these exceptional powers.

Assessment In order to assess the necessity of these suspicionless counter-terrorist stop and search powers, their function must first be determined. The UK police viewed section 44 as primarily serving objectives of disruption and deterrence.96 Apart from MacWade, disruption is the sole objective cited in the US cases above and in the governing statue in Cassidy.97 These objectives are appropriate given these are all-risks policing powers that precautionary and preventive in nature. The UK police rejected section 44’s usefulness in detection, denying it was ‘an arrest tool’.98 MacWade also cites detection as an objective although, as noted, it provides no discussion.99 A TCRP report, based on interviews with personnel in transit agencies, cites deterrence and detection as the primary objectives. It notes that ‘while 100 per cent detection is never possible, a lower level of detection is possible.’100 There is no empirical evidence to substantiate this bold claim. Leaving to one side the difficulties in proving a non-event,101 it is not logical to claim that these powers are primarily aimed at detection, particularly given the absence of coercion in the US powers. The powers are simply too blunt, as underlined by the miniscule hit-rate for section 44 – 0.05 per cent of searches resulted in terrorism-related arrests, with no convictions.102 A final objective for section 44 cited by some, primarily front-line, officers in the UK was intelligence-gathering.103 Given the low hit-rate, it appears that most intelligence came from conversations with people while they were stopped or from surrounding surveillance systems. The latter exist independent of the power and cannot justify its existence. The former tread on dubious legal grounds – these are not powers to stop and question. This objective does not arise for the US, given the narrower scope of the search and the lack of coercion.

93

94 95 96 97 98 99 100 101

White House, National Strategy for Combating Terrorism (Washington DC, 2006); Home Office, Pursue, Prevent, Protect, Prepare:The United Kingdom’s Strategy for Countering International Terrorism (Cm 7547, London, 2009); United Nations, Global Counter Terrorism Strategy (A/RES/66/282, 2006). See Chapter 3 (Llobet-Anglí and Masferrer) in this book; Walker, Terrorism and the Law (n 10) Chapter 5. Bourgeois (n 49). Lennon, ‘Policing Terrorist Risk’ (n 41). 33 CFR s 104.265(a)(1). Lennon, ‘Policing Terrorist Risk’ (n 41). MacWade (n 51). TCRP (n 47) 28. See Chapter 20 (Legrand, Bronitt and Stewart) in this book. 343

Genevieve Lennon

It follows that these powers are properly aimed at deterrence, not detection nor intelligencegathering. The US powers and section 44 are largely – although not exclusively – directed at generalised rather than specific threats. By contrast, section 47A aims to respond to (more) specific threats, through the higher trigger and the exclusion of using, inter alia, the usefulness of the power in terms of deterrence as a sole justification for authorisation.104 Are these powers necessary? The experience of the UK under section 47A suggests that they are not. The power has not been used in Great Britain, even during the London Olympics 2012, undoubtedly a period of heightened risk, and there have been no successful attacks. Conversely, section 44 was in force in London from February 2001 until July 2010 and it was deployed, albeit on a far smaller scale than subsequently prior to the 7/7 attacks.105 While not equating to evidence of the effectiveness or ineffectiveness of the power it is more suggestive of the latter. There are a number of limitations to suspicionless counter-terrorist stop and search. Visual inspections may not detect explosives. Searches, particularly as conducted in the US, may create choke points where people and police are massed which themselves may become an attractive target. Third, there may be risk displacement. There are also potentially detrimental outcomes. These powers erode the ‘old and cherished tradition… that everyone should be free to go about their business in the streets of the land, confident that they will not be stopped and searched by the police unless reasonably suspected of having committed a criminal offence.’106 Suspicionless counter-terrorist stop and search in public places and mass transit systems are not the same as searches at airports and borders. People have always been subjected to more stringent and onerous conditions of passage at borders. In addition to many airports serving international travel, and so being ‘borders’, people may be viewed as accepting the security requirements as a condition of travel. This does not apply to mass transit systems where the vast majority of travellers are commuters.107 Suspicionless counter-terrorist stop and search infringes the right to privacy and, depending on its deployment, may also impact on the rights to free assembly and speech and the prohibition against discrimination, albeit that the infringement(s) may be justifiable. The key problem with suspicionless counter-terrorist stop and search in the UK has been its uneven impact upon Black, Asian and other ethnic minorities, and its consequential effect on police–community relations.108 Its application may reduce the legitimacy of the police in the eyes of these communities, in turn reducing the likelihood of

102

103 104 105

106 107

108

344

Among the Home Office Forces (Section 95 statistics (n 39)). Anderson The Terrorism Acts in 2013 (n 32). One person was convicted of terrorism charges subsequent to a section 44 search in Northern Ireland (ibid). Lennon, ‘Policing Terrorist Risk’ (n 41). D Anderson, The Terrorism Acts in 2012 (Home Office, London, 2013); Macdonald (n 78). There was an average of 34,930 stops per annum between 2002/02 and 2006/07. This rises to 132,733 between 2007/08 and 2009/10. Both 2001 and 2010 had a significantly lower number of stops (8,260 and 8,929, respectively) (section 95 statistics (n 39)). R (Gillan) (HL) (n 67) [1] (per Lord Bingham). For example, in New York over 25 per cent of the population rely on public transportation to commute (US Census Bureau ‘Means Of Transportation To Work By Vehicles Available’ (American Community Survey 2007–2011). D Moeckli,‘Stop and search under the Terrorism Act 2000: a comment on R(Gillan) v Commissioner of Police for the Metropolis' (2007) 70 Modern Law Review 654; C Walker, ‘Neighbour terrorism and the all-risks policing of terrorism’ (2009) 3 Journal of National Security Law & Policy 121; G Mythen, S Walklate and F Khan, ‘“I’m a Muslim but I’m not a terrorist:” victimization, risky identities and the performance of safety’ (2009) 49 British Journal of Criminology 736.

Security inspections in the US and UK

their complying with the authorities or, crucially, providing information.109 Finally, if these powers are ineffective or only marginally more effective than the alternatives, such as visible patrols, then this is not an efficient use of police or other agencies’ resources. The risks from terrorism are severe, and governments have a responsibility to mitigate them. However, the actions taken must be proportionate, with the effectiveness weighed against the negative impacts. Notwithstanding the foregoing discussion, it is arguable that a limited form of suspicionless counter-terrorist stop and search is necessary to guard against terrorism.110 Such a power should be available only when there is a specific threat of terrorism but the suspects are unknown. (Were the suspects known, then a suspicion-based power should be used). In such circumstances an all-risks policing power, like suspicionless counter-terrorist stop and search, can serve a legitimate need. To quote Walker: ‘the more radical step of eradication is neither politically feasible nor rationally warranted;’ instead, the question becomes one of containment and control.111

A model framework Given that a narrowly defined power of suspicionless counter-terrorist stop and search is needed, what more is required to ensure the power meets constitutional norms, particularly rights and accountability, while also serving the objective of deterrence? There is insufficient space to design detailed frameworks for each jurisdiction; instead this section will set out the key characteristics for such a power. To underline its exceptional nature and to ensure the safeguards suggested here, the powers should be enabled by statutes in the US. As the objective of the power is deterrence, there should be no peripheral intelligencegathering: persons should not be required to provide any personal details and should be informed that they are not required to do so; no questioning should be permitted; documents should not be perused; and there should be notification when the power is deployed, although not in advance. To ensure that suspicionless counter-terrorist stop and search is only used in relation to specific threats, it should require authorisation prior to deployment. Authorisation should be by a senior police officer – a Police Chief or Commissioner or equivalent or their deputy. An additional layer of accountability is required to bolster democratic accountability and ensure independent scrutiny of the authorisation process. The Dutch approach to analogous, although non-counter-terrorist, suspicionless stops and searches, which was held to adhere to the ECHR, used a tripartite model whereby the police and Mayor authorised the use of the power for a six-month period, with the public prosecutor then empowering the police to deploy the powers for specified twelve-hour periods.112 While a six-month authorisation is inappropriate,

109 110

111 112

T Tyler, ‘Toughness vs. fairness: Police policies and practices for managing the risk of terrorism’ in C Lum and L Kennedy (eds), Evidence-Based Counter-Terrorism Policy (Springer, New York, 2012). D Anderson, Report on the Operation in 2010 of the Terrorism Act 2000 and Part I of the Terrorism Act 2006 (Home Office, London, 2011); Joint Committee on Human Rights, Fourteenth Report: Terrorism Act 2000 (Remedial Order 2011: Stop and Search Without Reasonable Suspicion) (2010/12, HL 155/HC1141); Macdonald (n 78). Walker, ‘Neighbour Terrorism’ (n 108) 165. Colon v Netherlands App No 49458/06, 15 May 2012, (2012) 55 EHRR SE5. See further: G Lennon, ‘Suspicionless stop and search – Lessons from the Netherlands’ [2013] Criminal Law Review 978. 345

Genevieve Lennon

aspects of the model could be adapted to suspicionless counter-terrorist stop and search. Specifically, additional approval of the authorisation by the Mayor or equivalent in the US could be required. In England and Wales, the Police and Crime Commissioners, in addition to the Home Secretary, could give approval. This system would provide a degree of democratic accountability, with the senior politicians or elected representative in the local area staking their reputations on the necessity of these powers. Those approving the authorisations should be able to affirm, modify, or reject them. The trigger should be along the lines of that found in section 47A: that the authorising officer reasonably suspects an act of terrorism will take place and reasonably believes the power, its duration, and geographical scope, are necessary to prevent the act of terrorism. Ideally this should be further limited by requiring some degree of imminence, such as ‘an act of terrorism will take place in the near future’. There should be a maximum time-period of seven days. Consecutive authorisations should be subject to additional approval by the relevant District Attorney, in the US, or Attorney General in the UK – mirroring the final layer of oversight in the Dutch system. The power should be available anywhere in the police force area (subject to the restrictions above). If needed at all, this power is as necessary at various high-risk, high-value sites, such as (some) CNIs, iconic sites, and crowded places which are equally target-rich environments, as at mass transit systems. Turning to back-end discretion, the main problem is how to limit the potential for the disproportionate and/or discriminatory deployment of the power while ensuring the discretion is broad enough for the power to operate effectively as a deterrent. One way of limiting back-end discretion is to narrow the scope of the search, for example to ‘explosives’, as occurs in some US schemes. However, while this reduces the privacy intrusion, focusing on one type of attack may lead to overlooking other means of attack. The object of the search should therefore be broader, along the lines of section 47A. The easiest way to ensure deterrence while limiting discretion is to stop every person. However, this is not feasible in mass transit systems, due to the need for speed and flexibility, as well as structural restrictions, or in many of the other areas where section 44 was deployed.113 One alternative is the US approach of predetermined selection rates. There are four potential problems with this. First, it constitutes the fettering of discretion with policy.114 The relevant statute explicitly permitting such deployment could resolve this. Second, would-be terrorists could easily avoid the search if the selection rate is predictable (such as every fifth person all morning). Using a variable or truly random selection rate would avoid this pitfall.115 Third, both numerical and truly random searches have met with judicial disapproval in the UK and ECtHR as they involve stopping people who are clearly not suspicious.116 However, there is contrary ECtHR case-law. Also, random stops address the threat from someone who is unaware they are carrying, for example, explosives as well as ensuring a higher level of deterrence – no matter how you behave, you may still be stopped.117 Fourth, both numerical and truly random searches extinguish officers’ ability to combine suspicionless stop and search with behavioural

113 114 115 116 117 346

J Wilson and others, ‘Securing America’s Passenger-Rail Systems’ (RAND, Santa Monica, 2007). British Oxygen Co Ltd v Board of Trade [1971] AC 610. See Ip (n 3) 749. Gillan (HL) (n 67); Gillan (ECtHR) (n 31). See also Anderson Operation in 2010 of the Terrorism Act 2000 (n 110); Ip (n 3) cf Joint Committee on Human Rights (n 110). Colon (n 112) where a challenge to ‘random’ searches was dismissed.

Security inspections in the US and UK

profiling that falls short of providing grounds for a suspicion-based stop.118 On balance, searches should be conducted subject to a variable or random pre-determined selection rate with officers having the discretion to search outside the selection rate on the basis of behavioural profiling and/or weak canine indications or intelligence.119 The latter should require supervisors’ approval. To limit this broad discretion, evidence not relating to terrorism found in the course of a search should be inadmissible.120 To ensure effective oversight, records should be kept on the authorisation and deployment of the power and made publicly available, with elements redacted, on a time lag. Core elements of the data, which should be published, are: the number of authorisations applied for, approved, modified, and rejected and the length of the authorisations. Frequent authorisations would suggest the power is being used routinely rather than responding to specific threats and should prompt an independent review. In relation to deployment: the number of stops, broken down by ‘pre-determined selection’ and ‘non-pre-determined selection’; the number of subsequent arrests and reason for the arrest; and, ideally, the ethnicity, gender, and age of persons stopped. Finally, there should be a publically available Code of Practice that is binding on officers deploying the power that explains the objectives of the power and clearly refutes the legitimacy of racial, religious, or ethnic profiling. To adhere to this framework, changes would be needed in both jurisdictions. The key changes to the UK power would be the added layer of authorisation; shorter duration of authorisation; changes to the selection method; additional data requirements particularly in relation to the authorisations; and, the exclusion of non-terrorism related evidence. The US powers would undergo a more radical overhaul. The key changes would be: an authorising statute; prior authorisation of the power; the expansion of the geographical scope; expansion of the selection method; publication of data; and, exclusion of non-terrorism-related evidence. These should meet the legal criteria in both jurisdictions. Random suspicionless stops and searches can conform to the ECHR and the additional restrictions proposed should help ensure section 47A does so. Certainly, if the power is authorised only exceptionally in response to specific threats, as seems likely to be the case given the current usage, it is probable the power would be compliant with the ECHR. In the US, the exceptional nature of the power as underlined by the statute and authorisation process can be more clearly argued to be a ‘special need’ than the current powers and, despite the expansion of the geographical scope, the proposed power would comply with the special needs doctrine due in part to the additional safeguards and largely to the depressingly low standard set by MacWade and, to a lesser degree, Cassidy.

118

119 120

Behavioural profiling is generally viewed as more effective than ‘group’ profiling and is nominally neutral in terms of race, ethnicity, and religion (Counter-terrorism Implementation Task Force Working Group on Protecting Human Rights While Countering Terrorism, Basic Human Rights reference guide: the stopping and searching of persons (UN, New York, 2010); T Leader and R Abrams, ‘Project Sphinx: Final Report’ (Kent University, Kent, 2008). Compare A Ritchie and J Mogul,‘In the shadows of the war on terror: persistent police brutality and abuse of people of color in the United States’ (2008) 1 De Paul Journal for Social Justice 175. Anderson Operation in 2010 of the Terrorism Act 2000 (n 111). See, in the context of airport searches, A Reinert, ‘Revisiting “special needs” theory via airport searches’ (2012) 106 Northwestern University Law Review Colloquy 207. 347

Genevieve Lennon

Conclusion This chapter has detailed the similarities and divergences between the UK and US in relation to non-border, suspicionless counter-terrorist stop and search. In terms of the differences, the UK power is far more intrusive: it includes personal searches and is coercive.While the scope of the US power is far more limited in geographical range, selection method, and the scope of the search, it lacks any meaningful control over front-end discretion and the powers – or at least some of the powers – are deployed in a routine manner. In terms of similarities, both are allrisks policing powers with a corresponding focus on deterrence. Despite the dangers and limitations of non-border suspicionless counter-terrorist stop and search, the power has a place in the counter-terrorism arsenal, so long as its use remains extraordinary and it is subject to close constraints. The approach of neither the US nor the UK sufficiently controls suspicionless counter-terrorist stop and search at present, although the non-usage in the UK since 2010 is to be welcomed as a sign that that section 47A appears to be being treated as intended: as an extraordinary power.

348

23 Securing the transport system Steve Swain

Introduction The ability to move people quickly and efficiently to and from their place of work, to pursue leisure interests, and to engage in economic activity, is the lifeblood of modern human endeavour. An effective and efficient transportation system is vital for any city that wants to grow and prosper economically. This critical infrastructure facilitates the movement of people around the settlement, transports them to and from their places of work, enables them to travel to the leisure and entertainment centres within the city, and makes the city an attractive venue to visit and bring that economic capital. Hence, all great cities have invested substantial time, effort, and resources in developing transport systems to enable their citizens to achieve this objective. An examination of the transportation systems from five of the most significant global capitals illustrates this fact with great clarity, see Table 23.1.

Table 23.1 Passenger movement per city City London Underground Paris Metro2 New York Metro3 Tokyo Metro4 Moscow Metro5 1 2 3

4 5

Annual Passengers (Millions p.a.) 1

1,265 1,527 1,708 2,351 2,491

Transport for London (TfL), Annual Report 2013/14 (TfL, London 2014). Syndicat des Transports d’Ille-de-France (STIF), Rapport d’Activité 2013 (STIF, Paris 2014). Metropolitan Transportation Authority (MTA), Subway and Bus Ridership: 2013, http://web.mta.info/nyct/facts/ ridership/index.htm accessed 20 September 2014. Tokyo Metro Company, Annual Report (Tokyo Metro Company, Tokyo 2014). Moscow Metro, Main Technical & Operational Specifications for Subways for year 2013 (Moscow Metro, Moscow 2013).

The average number of passengers per day across the five cities is a staggering 25.5 million, and this figure does not include intercity travel by rail, air, or water. The economic value of this infrastructure is one of the reasons why terrorists favour transportation systems as their preferred target of choice. Any attack that shuts down the transport 349

Steve Swain

network has a direct impact on the well-being of the city and its inhabitants. This chapter outlines the four primary types of transportation – road, rail, air, and marine – used to move people around a city in pursuit of work, leisure, and entertainment. Examining the various methodologies that may be deployed to protect such systems from terrorist attack and their relative effectiveness and ability to protect the travellers on these different systems develops the discussion.

Context It is worth putting some perspective on the issue of people being killed as a consequence of misadventure, accident, or terrorist attack. In the UK in 2012, 1,754 people were killed in transport accidents (averaging approximately five deaths per day),1 and, although these deaths are tragedies for the families involved, they barely feature in the public consciousness. The Pan American 747 that was destroyed by a bomb over Lockerbie in December 1988 killed 270 people and the repercussions are still making headlines over twenty-five years later.2 Similarly, the London bombings of 7 July 2005, where 52 people were killed, feature in the media with persistent regularity. The author spent ten days working in Scotland on the Lockerbie investigation, and, during this period, there were approximately eighty-eight people killed on British roads.3 Whilst the numbers killed in these road traffic accidents hardly seem to feature in the minds of the public, the deaths of the people at the hands of the terrorist reverberate for years. Is it this public consciousness that makes the public transport systems such an attractive target for terrorists?4 In an analysis of the Mumbai train attacks in July 2006, which resulted in 209 deaths and over 700 people being injured, Chakravarthi argues that mass transit systems are the preferred target of choice for terrorists because they present high concentrations of people and provide ample scope for large-scale destruction.5 Most capital cities experience severe road congestion every day of the week and, given this typical state of normality, it is simply not possible to move large numbers of people around cities without relying upon mass transit systems. However, in many of the terrorist attacks that have taken place across the globe, the current international terrorist trend is to kill large numbers of people.6 The fact that high numbers of people use these transportation systems renders them an attractive target for terrorist organisations.

1 2

3 4 5

6

350

Department for Transport, Annual Report and Accounts 2012-13 (HC 2014-15, 19). Study of Terrorism and Responses to Terrorism, Global Terrorism Database’. Available at: www.start.umd.edu/gtd/search/IncidentSummary.aspx?gtdid=198812210003 accessed 14 February 2015. C Stephen, ‘Lockerbie Bombing Inquiry: Lawyer Warns Police over Al-Senussi Interview’ The Guardian (London, 10 February 2014). The total for the year was 3,201. Available at: www.gov.uk/government/publications/annual-roadfatalities accessed 20 September 2014. See further: C Sunstein,‘Terrorism and Probability Neglect’ (2003) 26 Journal of Risk and Uncertainty 121. R Chakravarthi, Mumbai Train Attacks:Why do Terrorists Target Public Transport Systems? (Institute for Peace and Conflict Studies, New Delhi 2006). Available at: www.ipcs.org/article/india/mumbaitrain-attacks-why-do-terrorists-target-public-transport-systems-2070.html accessed 20 September 2014. See M Crenshaw,‘The Debate over “New” vs.“Old” Terrorism’. Available at: www.start.umd.edu/ sites/default/files/files/publications/New_vs_Old_Terrorism.pdf accessed 9 March 2015; PR Neumann, Old & New Terrorism (Polity, Cambridge, 2009).

Securing the transport system

Besides facilitating travel and mobility for the people, a nation’s economy depends substantially on the road and transit systems.7 Hence, sabotaging them achieves two main terrorist aims – causing substantial economic damage and terrorising the population.8 Under such circumstances it is not surprising to discover that most reviews of terrorist attacks typically find that between 30 per cent to 42 per cent of all terrorist assaults are directed against mass transportation systems.9 A recent study by the RAND Corporation determined that, of the suicide attacks examined by them, 67 per cent were aimed at causing mass casualties and 45 per cent of them were directed at land transportation, a greater proportion than any other type of target.10 The media response to these attacks, with bold front-page headlines, arguably reinforces public anxiety and helps to create the atmosphere that the terrorist is seeking to achieve. In summary, it is evident that transportation systems provide an ideal platform for a terrorist group aiming to kill or injure large numbers of people, cause widespread fear, and sustain extensive economic damage – hence, the substantial resources that are invested in detecting, deterring, or disrupting terrorist attacks. Of course, many visitors to a major city for workrelated matters, entertainment, leisure, and tourism will travel from outside the host country, so, in examining transport security, we need to assess all the modes of transport that will be used. As people will be travelling by air, sea, or land (either by rail or road) transport security needs to consider all of these modes, some of which will be easier to secure than others.

Road transportation systems In relation to road transport, the most obvious solution to terrorist risk is exclusion – not to allow any vehicles within the vicinity of a major conurbation. Although this is not a straightforward remedy, a number of cities have introduced measures, such as congestion charges (London) or other systems based upon registration plate numbers (Italy), to prevent or reduce the number of private vehicles entering a city. Although these measures are designed to reduce congestion and pollution from private vehicles, they also reduce the opportunity for a terrorist to carry out a vehicle-borne attack by acting as a barrier to easy access into a city.11 These systems also enable the law enforcement agencies to track rogue vehicles, through the use of the automatic number plate reading (ANPR) systems such as those installed around London and designed to enforce the vehicle exclusions zones. There are other traffic exclusion measures that have been introduced in London because of terrorism. The first of these, implemented in response to the terrorist attacks in London by the Provisional IRA, is the so-called ‘Ring of Steel’ around the City of London.12 This system was introduced in the early 1990s following the terrorist attacks on the Baltic Exchange in 1992

7 8 9 10 11 12

See further: House of Commons Transport Committee, Transport and the Economy (HC 2010-11, 473) Ch 2. See J Mueller and MG Stewart, Terror, Security, and Money: Balancing the Risks, Benefits, and Costs of Homeland Security (New York and Oxford, Oxford University Press, 2011). A Dolnik, ‘Assessing the Terrorist Threat to Singapore’s Land Transportation Infrastructure’ (2007) 4(2) Journal of Homeland Security and Emergency Management 1. R Warnes, Terrorist Patterns of Behaviour (RAND, Santa Monica, 2014). See C Corbett,‘Techno-Surveillance of the Roads: High Impact and Low Interest’ (2008) 10 Crime Prevention and Community Safety 1. See C Walker, ‘Political violence and commercial risk’ (2004) 56 Current Legal Problems 531; J Coafee, Terrorism, Risk and the Global City:Towards Urban Resilience (Ashgate, Aldershot, 2009). 351

Steve Swain

and Bishopsgate in 1993. Roads entering the City were narrowed and small chicanes were created to force drivers to slow down and be recorded by CCTV and ANPR cameras. These pinch-points had a sentry box where police could observe and monitor traffic. Other roads were permanently closed to traffic. The design of London is such that these measures were comparatively easy to implement and, relative to the damage caused by the bombing, inexpensive. In a similar vein, the financial district in Canary Wharf, which in 1996 suffered a terrorist bombing by the Provisional IRA, is on an island site and relatively easy to protect through the provision of CCTV, ANPR, vehicle check points, the use of dogs, and technologies to detect explosives. A far more ambitious scheme in London was the development of the Government Security Zone (GSZ), which was revealed in 2008 and covers an area that encompasses all the Government buildings in Whitehall and the surrounding areas.13 The initiation of this concept was driven by terrorist attacks in other cities, including Riyadh in 2003, and Glasgow and London in 2007. This zone has seen the installation of rising bollards, reinforced barriers that match the appearance of much of the London architecture, and many other measures to ‘target harden’ this area. However, the cost is considerable, mainly because of the presence of the under-pavement infrastructure that prevents the installation of deep barrier systems to withstand vehicle attack. A whole science around barrier design has emerged to cater for these difficult operational requirements.14 No attack has since occurred in the GSZ. Vehicle barriers are also routinely used to prevent any hijacked vehicles penetrating protected parts of a city. After the NewYork attacks of 11 September 2001, concrete barriers were deployed around key areas of London (notably Parliament) to provide stand-off to vehicle borne attack. After the Glasgow airport bombing in 2007, they also appeared around airports.15 Such barriers, however, are not always effective. The terrorist attacks in Riyadh in 2003, for example, involved the use of multi-wave attacks. The first wave was designed to defeat the defences and enable the terrorists to gain access with explosive devices carried by the following waves.16 The attack demonstrated the potential weakness of concrete barriers in the face of a determined assault. Subsequent tests by the Home Office Scientific Development Branch (now renamed the Centre for Applied Science and Technology), together with the Centre for the Protection of National Infrastructure demonstrated further weaknesses in these barriers. Detonating an explosive device in close proximity to a concrete barrier destroys the barrier and the fragments of concrete become airborne missiles, adding further to injury and damage to people and buildings. Experimentation has led to the design and deployment of blast-resistant barriers around iconic locations that are designed to defeat multi-wave terrorist attacks.17 The use of such barriers around these locations, with sufficient stand-off, can do much to mitigate the effect should such a methodology be utilised by terrorists. Some locations may

13

14

15 16 17 352

Hansard (House of Commons) vol 472 col 286w (7 March 2008). There was also an IRA mortarbomb attack on Downing Street in 1991: P Taylor, Provos: The IRA & Sinn Féin (Bloomsbury Publishing, London, 1997) 321–2. Federal Emergency Management Agency, Reference Manual to Mitigate Potential Terrorist Attacks Against Buildings: Providing Protection to People and Buildings (FEMA 426, Washington DC, 2003); H Petroski, ‘Technology and architecture in an age of terrorism’ (2004) 26 Technology in Society 161. House of Commons Transport Committee, Transport security: travelling without fear (HC 2007-08, 191) 190. B Whitaker, ‘29 killed and 194 wounded – the deadly return of al-Qaida’ The Guardian (London, 14 May 2003). See DO Dusenberry, Handbook for Blast-Resistant Design of Buildings (John Wiley, Hoboken, 2010).

Securing the transport system

thereby become less likely targets. However, there are downsides to the use of barriers around a capital city, unless they are aesthetically designed to fit with the existing infrastructure and general ambiance of a location. Too many barriers can create an impression of a ‘fortress city’ and act as a deterrent to investors, workers, and visitors to a city. As an example of this, when the UK bid to hold the 2012 Olympics was being developed, the author was involved in discussing the likely security regime with the UK bidding team. Much emphasis was put on the ideal that the Olympics are first and foremost a sporting event, with security concerns coming second. Images of a fortress around the Olympic venues would not fit well with this concept. Michael Zelukin also raised this matter in relation to the Vancouver Winter Games in 2010: Canadian officials recognize that a reduction in visible security may weaken a deterrence effect, but images portraying a police state with “barbed wire, armed roadblocks and military carriers in the streets” can be as damaging to the spirit of the Olympics as a backpack bomb in a celebration plaza.18 This, then, is the dilemma facing those professionals responsible for providing security – to make the city a friendly and inviting location to visit, while at the same time trying to ensure the workers and visitors feel safe from terrorist attack. Another method of road transportation is the use of buses or coaches. The installation of CCTV systems onto these vehicles has greatly assisted the police in their efforts to track terrorists. The failed bombers from the 21 July 2005 London attacks were viewed on CCTV footage that was taken from the bus and the trains that the terrorists travelled on for use during the investigations.19 Another precautionary measure is for the drivers to search the buses and coaches before passengers are boarded. This tactic has been deployed in many situations in the UK, with the vehicle being searched by trained staff and then kept secure by the driver throughout the day. The search routine could be undertaken on a daily basis and kept in a secure location when not in use. Without a search of the boarding passengers, which, during peak times, would be too timeconsuming and require large numbers of trained staff, there is also a risk of terrorists boarding a vehicle in possession of an improvised explosive device or firearm. A risk assessment would have to be made of the threat in this type of scenario. Armed law enforcement officers in effective numbers could be deployed to the bus and coach stations as a deterrent. There are many documented instances where buses have been targeted by suicide bombers, both in the UK and the Middle East, but the methodology described above would mitigate the damage to the targeted location. Should the would-be terrorist reach their preferred target by this type of transport, then a search regime at the venue on persons entering should provide the necessary safeguards. Significantly, the quantity of explosive that can be transported on foot is such that it is unlikely that the terrorist would use this method of transport to get to a location to damage structures.

18 19

M Zelukin, ‘Olympic Security: Assessing the Risk of Terrorism at the 2010 Vancouver Winter Games’ (2009) 12 Journal of Military and Strategic Studies 1, 14. See Home Office, Report of the Official Account of the Bombings in London on the 7th July 2005 (HC 2005–06, 1087) 4. 353

Steve Swain

Rail transportation systems Turning to rail systems, most major cities around the world have mass transit railways, either under or over ground, to transport large numbers of residents, workers, visitors, and tourists around the city, as shown by the figures quoted earlier in this chapter. Given the massive numbers involved, the system’s ticketing processes have been designed to ensure rapid access through the turnstiles to reduce congestion and prevent the build-up of queues. Even with these fast-flowing systems, during the peak periods in the morning and evening there can still be significant queues of passengers. The introduction in London of the card-based contactless ‘Oyster’ system has increased the flow rates, but passengers can still be subject to delays during peak periods. Following the terrorist attacks on the London Underground in July 2005, there was media discussion about securing mass transit systems in the way that is practised at airports.20 However, an examination of the volumes of traffic and the geography of the two systems reveal markedly different situations. According to the figures from the British Airports Authority, which is responsible for the oversight of Heathrow airport, there are nearly 191,200 passengers passing through the five terminals daily at the airport.21 There is a very clear line of demarcation between the ‘landside’ and ‘airside’ areas of an airport, where passengers have to show a boarding pass and go through a search regime. Whilst this is an acceptable necessity with the numbers at an airport, it only amounts to around 5.7 per cent of the numbers that use the underground system. Any similar system for the latter would be cost-prohibitive and would rapidly grind the network to a halt. Also, passengers travelling on an aircraft are, by virtue of publicity, ‘trained’ not to carry unsuitable articles. The prospect of trying to persuade workers travelling on the underground not to carry sharpened work instruments, for example, would prevent them from being able to go about their business. During a visit by the author to Russia to examine the bombing of the Moscow Metro in February 2004, a system of recording passengers travelling on the national railway system was demonstrated to the UK delegation. Every passenger travelling on this network has to show their identity card when purchasing a ticket, and they are allocated a carriage and seat number. Their details are entered into a national criminal database and wanted persons are immediately identified, with officers despatched to apprehend them – at first review, a very effective system. However, the Russian authorities informed the author that there had been considerable difficulties in passing the necessary legislation through the Duma to enforce this regime. Also, this type of legislation would be a considerable intrusion upon the private lives of citizens and, given the challenges faced by the Russian legislators (even in a country with a dubious human rights record), the likelihood of passing similar legislation in a developed world country would be particularly difficult. Moreover, if the would-be terrorists were ‘clean skins’, as was the case with the London and September 2001 NewYork bombers, then checks of this type would not identify them as would-be terrorists. So, we are left with attempting to manage large numbers of persons travelling on the railway network, largely unimpeded, whilst identifying the miniscule number that seek to cause harm.

20 21

354

K Pilling, ‘Rail and Tube Anti-Terror Screening Planned’ The Guardian (London, 14 November 2005). British Airport Authority ‘February traffic figures: BAA’s airports’ (2013). Available at: www.baa.com/portal/page/BAA%20Airports%5EMedia%20centre%5ENews%20releases%5ERes ults/915008f679e27210VgnVCM10000036821c0a____/a22889d8759a0010VgnVCM200000357 e120a____/ accessed 26 August 2014.

Securing the transport system

In the summer of 2006 there were a series of trials conducted by the Department for Transport, in conjunction with the British Transport Police and Metropolitan Police Service on the over and underground network following the July 2005 terrorist attacks. These trials utilised existing technology: archway metal detectors, baggage x-ray machines, sniffer and vapour technologies, and explosive detector dogs. The objective of the trials was not to test the effectiveness of the technologies but to determine their acceptability to the travelling public.22 The main outcomes from this research were twofold. First, that the current security scanner technology was not yet sophisticated enough to provide an effective search regime for travellers on the rail system and, second, likely delays, issues of privacy, and the selection process all gave respondents concerns over the use of such technologies. One of the technologies being studied, but which is not yet anywhere near deployment, would enable the detection of chemicals on a person’s skin as a consequence of handling explosives or the precursor chemicals. It is a well-known phenomenon that exposure to explosives can be detected through the sweat of persons who have handled them.23 The ideal solution would be a ticket machine that could ‘sniff ’ the ticket as it passes through the ticket-reading machine to detect the illicit substances. However, the growing use of the ‘Oyster’ technology works against this type of detector, particularly as the Oyster card is a proximity card and can register without contact with the reader. Even if it was straightforward to implement – which is not currently the case – there are two further drawbacks for these types of technology. The first one would be the large number of false alarms, as many materials may trigger an alert. In time it is probable that developments in the technology would significantly reduce the false alarm rate. The second problem would be the speed and type of response from the police. Unless a disproportionate number of armed officers were deployed on the network, the response would be measured in tens of minutes. In this time the suspect could board the train and be lost in the system. Even if the police arrived more quickly, they may only succeed in displacing the attack. During a global research project into the phenomenon of suicide terrorism, the author was informed of many examples where suicide terrorists had prematurely detonated their devices because they thought they had been detected. This was very common in Russia and Israel. One of the Russian examples given to the author in 2004 included two Chechen female suicide bombers on their way to attack a stadium when they spotted the police carrying out searches. They left and detonated their devices a short time afterwards. In Israel, there were numerous examples where a security guard had stopped a suspected suicide bomber, who then detonated their device, killing both themselves and the security guard.24 One alternative would be to have a bombproof portal that passengers would walk through when presenting their ticket. The portal would have to be designed to allow one person at a time to transit and an alert would automatically enclose the ticket-holder pending arrival of the police. The potential negative consequences of this approach, aside from delays, could be the person trapped being innocent and falsely imprisoned, or a terrorist detonating the device

22

23 24

R Worsley ‘Rail Passenger Security Screening: Passenger and Stakeholder Perceptions’ (Ipsos MORI, London, 2010); House of Commons Transport Committee, Transport Security (HC 200708, 191) Ev 13, 26. National Research Council, Existing and Potential Standoff Explosives Detection Techniques (National Academies Press,Washington DC, 2004). On 29 March 2002, Ayat al-Akhras, a 16-year-old Palestinian female suicide bomber, was stopped by the security guard, Haim Smadar, at the entrance to the Kiryat HaYovel supermarket. Both were killed, plus one other Israeli female. 355

Steve Swain

and injuring passers-by. Another potential concern is the law enforcement officers’ strategy for arresting a bomber with a live explosive device. There would be no guarantee that the device was safe if they tried to detain the person, even after the bomber had apparently discarded the bomb. It could be argued that in these circumstances the police would be justified in using lethal force under section 3 of the Criminal Law Act 1967, but, having already been imprisoned by the technology, the human rights of the suspects and other passengers may be jeopardised.25

Aviation transportation systems Another major challenge in securing transportation within a large city is to protect against the potential for an attack on the aviation transport system. As discussed earlier, aviation has proved to be an attractive target for terrorists, whether it be to use the aircraft as a weapon to damage infrastructure (as happened in New York on September 11, 2001), or to hijack an aircraft and take hostages in order to extract concessions (as happened to Ethiopian Airlines Flight 702 on 17 February 2014).26 Significant measures have been implemented to secure aircraft from attack, from reinforcing the cockpit doors, to preventing the terrorists seizing control, to strict searching regimes, and baggage checks prior to boarding. These measures have proved to be largely successful. However, if we examine some of the incidents that have taken place since the September 11 2001 attacks, we can see that, despite the vast sums of money that have been spent deterring and detecting terrorist attacks on the aviation industry, terrorists are still searching for ways to defeat the security regimes. On the 22 December 2001, for example, Richard Reid managed to board an American Airlines flight with a bomb concealed in his shoes. It was only his own ineptitude in trying to detonate the device that alerted the cabin crew and passengers to his activities and he was successfully restrained.27 The liquid explosives plot of August 2006 (that was foiled by the UK authorities) is another example where terrorists devised a scheme to try and circumvent aviation security measures by smuggling liquid explosives onto an aircraft disguised as soft drinks.28 The authorities are always at the mercy of the ingenuity of the terrorist and constantly need to be alert to these inventive schemes. Behavioural studies are receiving a significant amount of attention and research at the present time.29 Some characteristics of this discipline and suggestions about how to exploit it are described later in the chapter. The threats to the aviation industry from terrorism have, over the years, produced an iterative effect on security regimes for passenger terminals at airports and the screening systems for departing travellers. The ideal situation with regard to security at an airport would see everyone who had cause to enter an airport terminal being searched and cleared, either before they entered the terminal, or immediately after they have entered the terminal building. This would create a situation

25 26 27 28 29

356

See McCann v United Kingdom, App No 18984/91, Ser A324, 27 September 1995, (1996) 21 EHRR 97. Airline Reporter, ‘All The Details of Ethiopian Airlines’ Flight 702 Being Hijacked’ www.airlinereporter.com/page/36/ accessed 16 September 2014. See US v Reid 369 F 3d 619 (2004). See R v Abdulla Ahmed Ali [2011] EWCA Crim 1260. A Silke, ‘The Psychology of Suicide Terrorism: Terrorists, Victims and Society’ in A Silke (ed.), Terrorists,Victims and Society: Psychological Perspectives on Terrorism and its Consequences’ (John Wiley & Sons, Chichester, 2003).

Securing the transport system

whereby the whole terminal could be considered to be a sterile area. Therefore, an armed response unit could intercept anyone wishing to cause harm to the travelling public or damage to a terminal building before they were able to prosecute their mission. This approach is adopted in many building locations around the globe, where visitors are checked and cleared before they enter a building. However, for an airport terminal building, this is often not practicable. Friends or relatives often accompany departing passengers, and their friends or relatives often meet arriving passengers at the gate. The demands placed upon a screening regime in such circumstances would be impossible to satisfy, and the costs would be prohibitive. Therefore, the screening regime has to take place at a location where the travelling public can be differentiated and separated from the casual visitor in a controlled area. In some airports, passenger screening does not take place until the passenger reaches the departure gate, although in the majority of airports the screening typically takes place at the landside/airside interface, where different regulatory regimes can be enforced. As a consequence, aviation security is usually an amalgam of tactics, which seek to eliminate the opportunities available to the terrorist. For example, some of the tactics mitigate the threat to the landside areas of the terminal by the use of regular searches. The objective of these searches is to identify suspect devices left in these areas, with armed law enforcement or military patrols to deter the would-be attacker. The main tactic to prevent attacks in the airside areas of a terminal is to screen all persons passing into these sterile areas, be they departing passengers or employees working in these restricted areas. Some of the other factors that need to be considered in securing the system are the role of the airlines, ticketing procedures, and the profiling of passengers. The bomb that brought down the PanAm 747 in December 1988 over Lockerbie was placed in a container at Frankfurt airport (after transfer from Malta) and transferred to another container at Heathrow where it was placed on the ill-fated aircraft, which subsequently exploded with great loss of life.30 Even though the perpetrator(s) defeated the security regimes at Frankfurt and Heathrow, both airports are still operating and thriving. Pan American went out of business as a consequence of the bombing,31 and yet, airlines continue to abdicate their responsibility for security and leave it in the hands of the airport operators, even though the airline would suffer far more than the airport were an incident to take place. The attempted bombing on the 25 December 2009 of the Northwest flight 253 from Amsterdam to Detroit is a clear example of where the airlines are culpable in this regard. Umar Farouk Abdul Mutallab was travelling alone, bought a one-way ticket with cash, and was carrying no hold baggage, only cabin baggage (a strikingly similar profile to that of Richard Reid in December 2001). This information was known to the airline before he arrived to check-in. These pieces of information alone should have precipitated a more thorough scrutiny of his reason for boarding this flight. The airport operator, which is charged with carrying out the search regime, could not have known this information. Had the airline passed this information to the airport operator, Mutallab could have been subjected to a more rigorous search regime, which should have found the concealed device. There also appears to be a further intelligence failure, given there was awareness in some quarters regarding his history of radicalisation.32 Nevertheless, this does not excuse the airline from carrying out a more detailed

30 31 32

See HM Advocate v Megrahi (No 4) 2002 JC 99; Megrahi v HM Advocate [2008] HCJAC 58. See Re Lockerbie Air Disaster (1992) The Times 20 May (CA). See Umar Farouk Abdulmutallab: Report to UCL Council of independent inquiry panel, www.ucl. ac.uk/caldicott-enquiry/caldicottreport.pdf, 2010, accessed 7 March 2015; US v Abdulmuallab 2012 US Dist LEXIS 20057. 357

Steve Swain

investigation prior to his arrival, purely on the information that they were in possession of regarding his ticket purchase. If we look at the use of technology to book flights, there is much that airlines could do to increase their own security as part of a partnership between themselves and the airport operators. The key to this is the ‘profiling’ of passengers, a ‘dirty’ word in many people’s eyes because many commentators on security screening view profiling as judging a person by appearance, ethnicity, or other visual factor and dismiss the use of profiling as some sort of discrimination against individuals.33 While using a person’s skin as a profile differentiator would constitute discrimination, the use of other determining criteria based on the known characteristics of terrorists can be extremely useful. If we look at the air passenger, we can probably start profiling by drawing a distinction between the business and the leisure traveller. Business travellers tend to book their tickets through a travel agent used by their parent company, their tickets are paid for by invoice or company credit arrangements, and they are well known to the industry. They are very likely to have a frequent flier card, and when they turn up at the airport to check-in the airline transporting them already knows a significant amount about that person. A differentiated boarding ticket could be issued, so that when going through the search regime they could be subject to a lighter touch, if any security process at all. Leisure travellers, on the other hand, may be flying for the first time. They may have paid cash or used some other means for the purchase of the ticket and would be relatively unknown. Such passengers should be subject to the full search regime. Taking the business passenger out of the search process gives more capacity to focus on the leisure flyer, and everyone benefits from less inconvenience and faster transit times. There will always be exceptions to this differentiation, but the situation with current security regimes is that terrorists have succeeding in significantly driving up the costs of security as well as causing delays, to the detriment of the industry and the travelling public. Some commentators dismiss the concept of the ‘trusted passenger’, because such a passenger could be coerced into carrying out a deed.34 This methodology has been practised by criminals against bank managers and people entrusted with large sums of money. However, for a ‘victim’ to deliberately board an aircraft, carrying a concealed bomb, as a consequence of some form of duress, and knowing that carrying out the act is going to lead to one’s own death, is a highly unlikely prospect.35 There would also be too many opportunities for the victim to alert the authorities and subvert the terrorist planning. Every new threat brings yet greater levels of security, without any real review of what the risks are and what is a proportionate response.36 There are clear opportunities to learn from the various successful and unsuccessful attacks that have taken place around the globe that have been aimed at the aviation industry. However, the stock answer by the regulatory authorities

33 34 35

36

358

See further Chapter 26 (Greer) in this book. Electronic Privacy Information Center ‘Air Travel Privacy’ (epig.org) http://epic.org/privacy/ airtravel/ accessed 16 September 2014. Although the Provisional IRA did successfully carry out a number of bombings by ‘proxy’, forcing people to drive car bombs to designated targets, the driver usually had time to escape: M Bloom and J Horgan, ‘Missing their mark: The IRA’s Proxy Bomb Campaign’ (2008) 75 Social Research 579. For an example of an unwitting proxy aircraft bombing, see R v Hindawi (1988) 10 CrAppR (S) 104. See further B Jenkins, Aviation Security: After four decades, It’s Time for a Fundamental Review (RAND, Santa Monica, 2012).

Securing the transport system

has been to introduce ever more intrusive measures, such as the banning of the carriage of liquids, leading to longer queues and an altogether unpleasant experience for passengers.

Marine transportation systems Turning to the security of water-borne transport and its potential to be a target, there are a number of considerations. First, and probably of least concern, will be visitors arriving in the UK by water, generally on a ferry or (less likely) a cruise ship. The ports are well protected owing to the measures that have been put in place to detect illegal immigration, or the smuggling of human beings, drugs, and other items of contraband into the country by organised gangs. All persons arriving into the UK, be they nationals returning home or visitors, have to go through passport control, where their passports are scanned to ensure they are valid and that they match the person presenting them.37 Those travellers requiring visas also have the validity of these checked. Once through passport control entrants have to pass through a Customs check where stop and search procedures can be carried out to check for illegal possession and importation of drugs, contraband substances, and trafficked persons.38 One potential scenario is that a ship could be attacked and hijacked by terrorists. Past examples of this approach include the Achille Lauro, which was hijacked in 1985, and the trawler that the Mumbai attackers of November 2007 hijacked in order to reach Mumbai. However, given the geography of the UK, ships seized in such circumstances would reach the coastline, but would be hard pressed to penetrate far inland without the authorities noticing. Nonetheless, there is potential for a significant economic impact, as illustrated by the suicide attack on the M/V Limbug, which led to a 93 per cent fall in the productivity at the port of Aden, at an estimated cost of $3.8 million a month.39 One interesting aspect of the seizing of ships is the issue of powers to board and search vessels. The territorial waters extend to a distance of 12 miles from the shoreline and, once within this distance, the home authorities have powers to engage and board such vessels. However, law enforcement or military authorities wishing to board a vessel outside their territorial waters, if that vessel is not registered to the home country, have no powers to board the vessel except with the express permission of the crew or the state where the vessel is registered.40 In the event of a biological weapon being carried by terrorists, with the right weather conditions, a weapon of mass destruction could therefore be discharged from outside the twelve-mile limit and the substance could still reach the mainland. Responses to such scenarios have been exercised in the UK, with much debate amongst the legal teams involved. The consensus reached, however, was that if there was reasonable cause to suspect a vessel was carrying this type of device, then action would be taken and the legal issues resolved subsequent to the intervention. This is an area that needs further discussion internationally.41 The location of many capital cities does pose particular challenges for the security authorities owing to the waterways that run around and through these cities. Visitors attending

37 38 39 40 41

See Immigration Act 1971, Sch 2. See Customs and Excise Management Act 1979. P Chalk, The Maritime Dimension of International Security:Terrorism, Piracy, and Challenges for the United States (RAND, Santa Monica, 2008) 23–4. UN Convention on the Law of the Sea, Article 92. Although note the attempt of the US to address this through the Proliferation Security Initiative: D Guilfoyle,‘Maritime Interdiction of Weapons of Mass Destruction’ (2007) 12(1) Journal of Conflict and Security Law 1. 359

Steve Swain

locations within a city may well be transported to the venue by water, and measures will have to be put in place to ensure that any possibility of inserting a device is deterred or detected. The other threat posed by the waterways is penetration by terrorists utilising diving equipment, a technique used by the LTTE Sea Tigers against the Sri Lankan Navy in 1994.42 Work to secure against this method of entry will involve the deployment of technology, or regular patrolling, or a combination of both.

Suicide terrorism and the transport system: opportunities for interdiction? The events of the September 11, 2001, have precipitated a huge programme of research into new technologies, law enforcement tactics, and protective security regimes to counter the threat from international terrorists. One of the most difficult challenges arising from contemporary international terrorism is the threat from suicide bombers. Eliminating the need for an escape plan renders many of the counter-terrorist techniques developed during campaigns such as that waged by Provisional IRA ineffective.43 As a consequence, much money and effort have been expended in trying to counter this particular threat, but with limited success. However, the attacks in London in July 2005, and those seen in other places where suicide bombers have been deployed, have created a database of sufficient size that it is possible to examine the characteristics of the persons involved in these attacks to look for predictable behavioural patterns that may permit some exploitation by law enforcement agencies, particularly when it comes to preventing attacks on transport systems. The current methodologies attributed to Al Qa’ida and its affiliated groups aim at mass casualty terrorist attacks. Yet, in many cases, the death toll is much lower than it could have been, given the availability of ‘soft targets’ and the apparent ease with which these terrorists seem able to penetrate protective regimes. To the outside observer this seems illogical, particularly given the inherent flexibility of a terrorist embarking on a suicide mission and his/her ability to change targets and locations right up to the point of detonation. Investigations into these terrorist attacks reveal clear evidence of reconnaissance of the target prior to the attack. This reconnaissance should ensure a level of knowledge, planning, and awareness that gives them the best times, locations, and targets to meet their mission objectives. In a study of over 300 suicide attacks, Pape found that the average number of deaths per attack is twelve (excluding 9/11).44 However, many attacks fail to meet this ‘average’ impact, and some useful insights can be drawn from examining some attacks, which arguably could have been much more severe. On the 7 July 2005, at 08.50, three of the bombers, Tanweer, Lindsay, and Khan, carried rucksacks onto the London underground railway and detonated them, killing and injuring many travellers.45 The trains at Aldgate and Edgware Road were crowded but not full. However, the King’s Cross underground train was at or near full capacity. The devices were placed on or near the floor in the standing area next to double passenger doors. The device at

42 43 44 45

360

P Lehr, ‘Port security in the UK’ in P Wilkinson (ed.), Homeland Security in the UK: Future Preparedness for Terrorist Attack Since 9/11 (Routledge, Abingdon, 2007). CJM Drake, Terrorist Target Selection. (St Martins Press, New York, 1998). R Pape, Dying to Win:The Strategic Logic of Suicide Terrorism (Random House, New York, 2005). Home Office, Report of the Official Account of the Bombings in London on 7th July 2005 (HC 20052006, 1087).

Securing the transport system

King’s Cross was more centrally placed than at the other two underground incidents. Twentyseven people died at the King’s Cross incident, approximately four times as many deaths as in either the Aldgate or Edgware Road incidents. The high number of fatalities at King’s Cross is likely to have been caused by the central location of the device and the passenger distribution. The small bore of the tunnel is not considered to have been a major factor in this instance. Nearly an hour later, at 09.47, the fourth bomber, Hussain, detonated a similar bomb on the upper deck of a London bus, again killing and injuring many people. Given the almost simultaneous detonation times of the three bombers on the underground, it seems likely that Hussain was supposed to detonate at the same time. CCTV recordings reveal that the bombers had carried out reconnaissance activity some nine days previously.46 However, on 7 July, Hussein was unable to implement his pre-planned attack owing to disruption of the Northern line. He is seen on CCTV wandering around for nearly an hour before boarding a bus and completing his mission. During this time he tried to phone his fellow terrorists, when he must have known that they were already dead. Fourteen people died in the Tavistock Square bus attack, at least eight of whom were believed to have been on the upper deck where the device was detonated. On the 21 July 2005, exactly two weeks after the 7/7 attacks, a fresh group of terrorists attempted to carry out another wave of suicide bombings on the underground system and buses in London.47 At 13.07, one of these new attackers, Muktar Said Ibrahim, can be seen on CCTV taken from a London bus on which he was travelling, sitting in the back of the bus attempting to detonate the device. The moment of detonation can be seen as the passengers look back in his direction. At this point there are five other people on the top deck, one either side of the bus three rows ahead, one halfway down, and two right at the front. Had the bomb detonated, given the distance between Ibrahim and the other passengers, and the small numbers of them, it is likely that his would have been the only death, though, undoubtedly, others would have been injured. The author has also seen some footage from a vehicle check-point in Iraq, where a vehicleborne suicide bomber detonates his device, but kills only the soldier standing next to the vehicle. In this attack the driver can be seen approaching the check-point before stopping some fifty yards away. After a very short period of time, the vehicle then approaches the check-point. At this point there are six vehicles waiting at the three lanes of the check-point, one of which is a US military vehicle. The terrorist vehicle draws up to the rear of the queue and then moves forward until it reaches the head of the queue. A soldier leans forward to speak to the driver and then, as he steps back, the device detonates. At this point, there are no other vehicles at the vehicle check-point, so the only person apparently killed by the blast is the lone soldier. In all these examples, the bomber(s) has failed to maximise the effectiveness of his attack. Something seems to be occurring in relation to the behaviour of the bombers in these examples. What is it? Is it possible to draw any hypotheses that can be utilised by law enforcement agencies? Silke conducted a study on psychological aspects of actually carrying out a suicide attack. 48 One of his conclusions was that suicide terrorists typically experience very high levels of stress when they are attempting to execute the attack. This stress, Silke argued, has a very clear impact on the bomber’s ability to think clearly and react to situations:

46 47 48

See Intelligence and Security Committee, Inquiry into Intelligence, Report into the London Terrorist Attacks on 7 July 2005 (Cm 6785, 2005). See R v Ibrahim [2008] EWCA Crim 880. Silke (n 29). 361

Steve Swain

In high stress situations, individuals have difficulty concentrating, display poorer memory, and have greater difficulties with problem solving and perception tasks. The result is that decision making in such circumstances can take longer and is much more prone to errors and poor judgement. Training and preparation to prepare for stressful circumstances, and previous experience of similar situations, have been found to help reduce these negative effects (though they do not entirely eliminate the impact)... Suicide terrorists often receive relatively little training and preparation... The result is that suicide terrorists may have difficulty effectively responding to unexpected obstacles or changes in plan. Unanticipated events will cause terrorists to take longer to reach decisions and the decisions made are more likely to be poor ones. Even minor unanticipated disruptions to a plan can have a considerable impact in terms of the outcome (e.g. a bomber detonates in an area with a poor potential for mass casualties; or, abandons the attempt entirely). Such a relationship endorses security approaches that increase the likelihood of unanticipated changes (e.g. random security checks at travel hubs, etc.)49 There is another interesting phenomenon that has emerged from an examination of the facts surrounding these attacks, which relate to the geography of the underground system, and was seen in the Moscow Metro bombing on the 4 February 2004, the London bombings of the 7 July 2005, and the failed attacks in London on the 21 July 2005. When the attack on the Moscow Metro bombing was investigated, an interesting fact emerged during the author’s visit to the scene. Tracing the route of the bomber to the position where the device was detonated revealed that the bomber had taken the shortest route possible from the surface to the underground platform. At the bottom of the escalator, the bomber turned immediately right and boarded the carriage at this point, which is where the device was subsequently detonated. Upon examining the London Underground explosions of the 7 July and the failed explosions on the 21 July, it can be seen that four of the bombers were in the second carriage of the sixcar train, one was in the first car, and one was in the fourth car. An obvious question is, why choose these particular locations? When their routes are retraced (and some of this has to be supposition as many of the CCTV systems were not working), it is possible to give a logical explanation. For the 7 July attacks, walking the shortest route from Kings Cross mainline station through the underground tunnel system brings each of the three bombers onto the platform opposite the carriage from where they boarded the train and then subsequently detonated their respective devices. This same fact is repeated on the 21 July. In each case the bomber appears to have entered the carriage closest to where they first emerged on the platform. Once they arrive on the platforms, they have remained static. By and large, the intention of most suicide bombers is to cause as many casualties as possible. They undertake reconnaissance of their intended target in order to identify vulnerabilities and weaknesses, so they can plan and execute their attack. During the time when they are prosecuting their attack, the extreme stress faced by them during the period leading up to the point of detonation is interfering with their cognitive abilities and is preventing flexibility.50 The way that security processes generally work means that the regimes deployed are quite predictable, as they need to be managed to ensure their effectiveness. This predictability actually facilitates the planning processes undertaken by the terrorist and reduces the effect of the extreme stress. In addition, current security regimes are very open and transparent. Generally there will be

49 50 362

Ibid 3. Ibid 29.

Securing the transport system

archway metal detectors and baggage x-ray machines. Some locations may have vapour technology machines where the operator will swab the visitor’s bag to check for traces of explosives. Some have newer technologies such as millimetre wave machines. Therefore, the terrorist, when carrying out reconnaissance on their potential targets, can plan an attack having been able to witness first-hand the existing security regime. Following from these insights, the obvious question for law enforcement agencies is: what can we do to exploit this behavioural anomaly, since even small changes in routine may deter, detect, or disrupt them? This is often easier said than done, as infrastructure changes cannot be undertaken easily. Nevertheless, operators of transport systems should review their security regimes to look at how they can make their processes less predictable and more opaque. One way may be to move the emphasis away from having highly visible guards to some who operate in non-descript clothing, perhaps working in the area in front of the location to be protected, so they are able to observe behaviours and perhaps call attention to anomalous activity and behaviour. Some of the solutions may be: shifting entrances to places of public resort if possible; closing entrances for short periods of time; introducing security guards at irregular intervals; focusing activity at the points of shortest route. There is obviously no guarantee of success as the terrorist’s reconnaissance may coincide with the changes. Furthermore, this is only likely to delay the terrorist and not stop them. However, delay may give law enforcement agencies an opportunity to spot unusual behaviour or cause the terrorist to act sufficiently outside the normal patterns of behaviour so as to enable the authorities to spot and intercept them, particularly if staff within selected organisations are briefed on the phenomenon. The author has discussed the feasibility of introducing some of these ideas into security regimes in the aviation transport environment. However, owing to the regulatory nature of aviation security and potential inconvenience to travellers, little progress has been made. Notwithstanding this inconvenience, changing the routine of security procedures may be the price to pay for making the transportation systems safer.

Conclusions Public transport systems will remain a favourite target of terrorist groups, because of the two goals such attacks achieve: the terrorising of the public and significant economic damage. Ultimately, all major public transportation systems, whether by land, air, or sea, are vulnerable to attack, regardless of the substantial resources that have been put into developing technologies to disrupt, deter, or detect the terrorist. Much work is needed to develop new and innovative technologies to identify and apprehend the terrorist, particularly on mass transport and transport hubs in major cities (as well as in places of public resort and major sporting events),51 because of the large numbers of people and the current difficulties in providing cost-efficient and effective preventive measures. Technology alone, however, should never be seen as the only solution to terrorist threats. Other factors are also vital. In the context of a major ceremonial event, an entertainment venue, or a sporting event, for example, the training of the large body of volunteers and security staff to perform the security function and use the security equipment is critical because the technology will only ever be as good as the person operating it. One of the drawbacks of security is the significant cost involved. Consequently, to cut costs, often relatively unskilled staff are employed to carry out these roles. This means that the

51

See A Richards, P Fussey and A Silke (eds), Terrorism and the Olympics: Major event security and lessons for the future (Routledge, Oxford, 2011). 363

Steve Swain

training regimes for the staff have to be standardised to enable them to perform the role reasonably effectively. Standardised training is predictable by its very nature. Therefore, for the terrorist planning an attack, they are able to factor in this predictability when developing their attack plans. The challenge for the security designers and planners is to build into city security regimes and all the associated transportation systems, unpredictability, and opaqueness, so that planning an attack becomes much more difficult and gives the law enforcement agencies opportunities at the intervention points to spot danger and to take action. One could postulate that the death of members of the public, law enforcement, or military personnel as result of terrorist activity, although tragic for the families involved, does not move governments to take strong measures, particularly, as we has discussed earlier, that the high numbers of deaths caused by traffic incidents does not seem to stay in the public conscience for long. Similarly, terrorist attacks do have an impact for a longer timeframe in the minds of those affected, although for those not affected, return to normality does not take long. However terrorist activity that causes economic damage in excess of £1 billion, does make a government sit up and take notice. This is the imperative that drives the vast research and development programmes to develop new technologies to protect capital city transportation systems.

364

24 State development of incapacitating chemical agent weapons Implications including potential terrorist misuse Michael Crowley and Malcolm Dando1

Introduction In his classic book on the Utility of Force: The Art of War in the Modern World,2 General Rupert Smith warned of the dangers of treating the wars of this century as if they were the same as the force-on-force wars between industrial states that characterised the last century. Amongst the characteristics of modern wars that he identified was that: ‘We fight amongst the people, a fact amplified literally and figuratively by the central role of the media: we fight in every living room in the world as well as on the streets… of a conflict zone.’3 As the events in the Middle East and Ukraine during 2014 demonstrate so clearly, the wars of this century are unlikely to be resolved by military force alone. Indeed the development, deployment, and use of military force can be counter-productive to the political objectives of the parties involved in such conflicts and potentially contravene international law. This chapter is concerned with one such counter-productive possibility – the seemingly sensible pursuit of incapacitating chemical agent (ICA) weapons to deal with difficult situations, such as terrorists holding hostages. The argument presented in the chapter is not that seeking so-called ‘less lethal’4 options to lethal force is wrong, but rather that each such option

1

2 3 4

This chapter is drawn from an extensive report Down the Slippery Slope? A Study of contemporary dualuse research potentially applicable to incapacitating agent weapons, Biochemical Security 2030 project/ Bradford non-lethal Weapons Research Project, October 2014. R Smith, The Utility of Force: The Art of War in the Modern World (Penguin Books, London, 2005). Ibid, 17. There is continuing controversy over the nature and scope of the terms ‘non-lethal’ or ‘less lethal’ weapons. In recognition of this, the term ‘less lethal’ will be placed in quotation marks during this chapter. 365

Michael Crowley and Malcolm Dando

needs to be carefully analysed from a broad perspective. If this is done in regard to the possible development of ICA weapons, the supposed utility of these weapons must be weighed against the dangers of the erosion of the Chemical Weapons Convention 1993 (CWC)5 and a slide back to a chemical weapons arms race. Furthermore, if states do not make it very clear that they are not seeking to use the ongoing advances in neuroscience, drug discovery, and drug delivery in order to develop novel ICA weapons, then misperceptions could easily arise and provoke counter-productive responses in kind from other states. It should be noted from the outset that this chapter departs from most others in this book in that its emphasis is on the state rather than the more traditional agenda of chemical, biological, radiological, nuclear, and explosives (CBRNE) weapon-based terrorism studies.6 Our point is not only that states can and do resort to terrifying weapons but also that weaponisation of a broader range of chemical agents is becoming easier, potentially increasing the risk of chemical or biological terrorism, whether through acquisition of materials or the replication of processes. Thus, advances in relevant dual-use research with nominally benign outcomes could potentially be subverted by a range of state or non-state actors, including terrorists, unless the international community takes appropriate measures to combat this.

Incapacitating chemical agents Although certain states and pluri-lateral organisations have sought to characterise ICAs,7 there is currently no internationally accepted definition for these chemical agents. Indeed, certain leading scientific experts and international organisations believe that such a technical definition is not possible.8 Whilst recognising the contested nature of this discourse, a provisional working description based upon the 2012 Royal Society definition will be employed here. Thus ICAs will be considered as: substances whose purported intended purpose is to cause prolonged but nonpermanent disability and include centrally acting agents producing loss of consciousness, sedation, hallucination, incoherence, paralysis, disorientation, or other such effects.9 Candidate

5

6

7 8

9

366

Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction 1993 (UNTS 317). Note also the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction 1972 (1015 UNTS 163). For some of the extensive literature, see B Kellman, Bioviolence (Cambridge University Press, New York, 2007); I Bellany (ed.), Terrorism and Weapons of Mass Destruction (Routledge, Abingdon, 2007); M Levi, On Nuclear Terrorism (Harvard University Press, Cambridge, 2007); AL Clunan, PR Lavoy, and SB Martin (eds.), Terrorism, War, or Disease? (Stanford University Press, Stanford, 2008); DP Fidler and LO Gostin, Biosecurity in the Global Age (Stanford University Press, Stanford, 2008). See for example: NATO, NATO Glossary of Terms and Definitions (English and French) (AAP-6, NATO, Brussels, 2012) 2-I-2. See Spiez Laboratory, Technical Workshop on Incapacitating Chemical Agents, Spiez, Switzerland, 8–9 September 2011 (Spiez Laboratory, Speiz, 2012) 10; International Committee of the Red Cross (ICRC), ‘Toxic Chemicals as Weapons for Law Enforcement: A threat to life and international law?’ (Synthesis paper, ICRC, Geneva, 2012) 1–2. The Royal Society, Brain Waves Module 3: Neuroscience, conflict and security (Policy document 06/11, Royal Society, London, 2012) 44–5. See also: The Royal Society, ‘The Chemical Weapons Convention and convergent trends in science and technology’ (Seminar held at the Organisation for the Prohibition of Chemical Weapons (OPCW), 18th February 2013) 2. For an alternative definition see: A Pearson, M Chevrier, and M Wheelis (eds), Incapacitating Biochemical Weapons (Lexington Books, Lanham, 2007) xii.

State development of incapacitating chemical agent weapons

agents may often possess a very low safety margin (the difference between desirable and undesirable effects), so the effects of ICAs are in fact variable and can include death.10 ICAs are distinct from riot control agents (RCAs), which act on the peripheral nervous system to produce rapid sensory irritation of the eyes, mucus membranes, and skin, and whose effects disappear shortly after termination of exposure. Proponents of ICA weapons have promoted their development and use in certain law enforcement scenarios, for example in armed sieges where hostages have been taken; they have also been raised as a possible tool in a variety of military operations, especially in situations where fighters and civilians are in close proximity with each other.11 By contrast, a broad range of observers, including scientific and medical professionals, arms control organisations, international legal experts, human rights, and humanitarian organisations, as well as a number of states, are critical of the development and utility of ICA weapons, highlighting that the use of such weapons for military or law enforcement purposes represent potentially grave dangers to health and well-being. The British Medical Association (BMA), for example has concluded that: The agent whereby people could be incapacitated without risk of death in a tactical situation does not exist and is unlikely to in the foreseeable future. In such a situation, it is and will continue to be, almost impossible to deliver the right agent to the right people in the right dose without exposing the wrong people, or delivering the wrong dose.12 Further concerns that have been raised are the risk of creeping legitimisation of ICA weapons with the erosion of the norm against the weaponisation of toxicity;13 the dangers of ICA weapon proliferation to both state and non-state actors;14 their potential use as a lethal ‘force multiplier’; their employment to facilitate torture and other human rights violations;15 the further misuse and militarisation of the life sciences;16 the potential for states to use law enforcement ICA weapon development as a cover for covert offensive chemical weapons programmes;17 and the danger of creating a ‘slippery slope’ that could lead to chemical warfare.18

10 11

12 13

14

15 16 17 18

The Royal Society, Brain Waves Module 3 (n 9) 44, and The Royal Society ‘The Chemical Weapons Convention’ (n 9) 2. See, for example, G Fenton,‘Current and prospective military and law enforcement use of chemical agents for incapacitation’, in Pearson, Chevrier, and Wheelis (n 9) 103–23; G Whitbred, ‘Offensive use of chemical technologies by US special operations forces in the global war on terrorism’ (Maxwell Paper Number 37, Maxwell Air Force Base, Air University Press, Alabama, 2006). BMA, ‘The use of drugs as weapons: The concerns and responsibilities of healthcare professionals’ (BMA, London, 2007) 1. J Perry Robinson,‘Categories of Challenge now facing the Chemical Weapons Convention’ (52nd Pugwash CBW Workshop, 10Years of the OPCW:Taking Stock and Looking Forward, Noordwijk, The Netherlands, 17–18 March 2007). A Pearson, ‘Incapacitating Biochemical Weapons: Science, Technology, and Policy for the 21st Century’, op. cit., 172; M Wheelis and M Dando, ‘Neurobiology: A case study of the imminent militarization of biology’ (2005) 87(859) International Review of the Red Cross 564. M Crowley, Dangerous Ambiguities: regulation of riot control agents and incapacitants under the Chemical Weapons Convention (Bradford University, Bradford, 2009) 61–2. BMA (n 12) 1;Wheelis and Dando (n 14). Perry Robinson, ‘Categories of Challenge’ (n 13) 19. ICRC, ‘Toxic Chemicals as Weapons for Law Enforcement’ (n 8) 5. 367

Michael Crowley and Malcolm Dando

Historical ICA research and development programmes From the late 1940s onwards military, security, or police entities and related state policy-making bodies of certain countries have explored the potential utility of ICA weapons. States that reportedly conducted research and attempted development of ICA weapons or acquired ICA wepons at some stage prior to the signing of the CWC in 1993 included: Albania, China, Iraq, Israel, (apartheid) South Africa, the Soviet Union, the UK, the US, and Yugoslavia.19 Public details of the historical ICA weapon research and development programmes are partial and of varying reliability. However, information released by the UK and US governments into their past weapons programmes show that the range of pharmaceutical chemicals that were under consideration, as potential ICA weapons, was extensive. For example, the 1997 United States Army textbook, Medical Aspects of Chemical and Biological Warfare, stated that: Virtually every imaginable chemical technique for producing military incapacitation has been tried at some time. Between 1953 and 1973, at the predecessor laboratories to what is now the U.S. Army Medical Research Institute of Chemical Defense, many of these were discussed and, when deemed feasible, systematically tested. Chemicals whose predominant effects were in the central nervous system were of primary interest and received the most intensive study…20 The authors went on to suggest that almost all such agents could be put into one of four classes: stimulants, depressants, psychedelics, and deliriants. Stimulants include, for example, amphetamines and cocaine, depressants include barbiturates, and psychedelics include LSD. Delirium, ‘an incapacitating syndrome, involving confusion, hallucinosis, disorganized speech and behavior’, can be produced by a wide variety of drugs. But as the text pointed out: ‘From this large number of possibilities, chemical compounds in a single subgroup – the “anticholinergics” – are regarded as most likely to be used as military incapacitating agents.’21 The US studies that were carried out on such deleriant agents have been described in some detail,22 and one, BZ (3-quinuclidynyl benzilate) was weaponised by the US. BZ interferes with the operation of the acetylcholine neurotransmitter in the brain by binding to muscarinic receptors for the transmitter. However, as there are many types of such receptors the effects of BZ are complex and the behaviour produced was unpredictable.23 Consequently, it is not surprising that there are no confirmed reports of the use of such ICA weapons by the US in armed conflict, and that its stockpiles were subsequently destroyed.

19

20

21 22 23 368

See: J Perry Robinson, ‘Incapacitating chemical agents in context: an historical overview of States’ policy’ in ICRC, ‘Expert meeting, “Incapacitating chemical agents”: Law enforcement, human rights law and policy perspectives Montreux, Switzerland, 24th to 26th April 2012: Report’ (ICRC, Geneva 2013); The Royal Society, Brain Waves Module 3 (n 9) 10–13; Crowley (n 15); M Dando and M Furmanski, ‘Midspectrum Incapacitant Programs’ in M Wheelis, L Rózsa, and M Dando (eds), Deadly Cultures: Biological Weapons Since 1945, (Harvard University Press, Harvard, 2006). Perry Robinson also highlights reported attempts by France to develop biological incapacitating agents at some stage during this period. JS Ketchum and FR Sidell, ‘Incapacitating agents’ in FR Sidell, ET Takafuji, and DR Franz (eds), Medical Aspects of Chemical and Biological Warfare (Office of the Surgeon General, US Army, Washingon DC, 1997) 291. Ibid 294. JS Ketchum, Chemical Warfare: Secrets Almost Forgotten (ISBN: 1-4243-0080-0, Private publication, United States, 2006). MR Dando, A New Form of Warfare:The Rise of Non-Lethal Weapons (Brassey’s, London, 1996) 90–4.

State development of incapacitating chemical agent weapons

Advances in science and technology and their potential application in ICA weapons research and development In the light of previous attempts by a number of states to develop ICA weapons, a range of national and international scientific and medical bodies have assessed the revolutionary changes that have taken place in relevant life and chemical scientific disciplines and technologies over the last 20 years and have explored the potential likelihood for, and the implications of, the misuse of such research.24 Of particular potential relevance have been developments in neuroscience, medicinal chemistry, pharmacology,25 and their convergence in specialisms such as neuropharmacology, psychopharmacology, and neuropsychopharmacology.26 In its 2008 and 2012 reports for CWC states parties to consider in preparation for the 2nd and 3rd CWC Review Conferences, the Organisation for the Prohibition of Chemical Weapons (OPCW) Scientific Advisory Board27 discussed the rapidly changing nature of drug design and the development of technology that allowed the fast synthesis and screening of many thousands of chemical agents. Tools for parallel multi-compound synthesis have become widely available, and, together with simultaneous high-throughput screening for biological activity against in vitro-test systems, have produced data on millions of possibly new biologically active chemicals. Similarly, seismic advances in the life sciences have led to a better understanding of the functioning of the brain, nervous system, and other regulatory systems in the human body,28 and on how certain chemical agents could interact with them. All this knowledge is likely to provide significant benefits to society;29 however, given its multi-faceted applicability, these

24

25

26

27

28

29

For discussion see for example: Spiez Laboratory Technical Workshop (n 8) 15–16 and 26–30. The Royal Society Brain Waves Module 3 (n 9) 43–52; M Balali-Mood and others, Impact of Scientific Developments on the Chemical Weapons Convention IUPAC Technical Report (International Union of Pure and Applied Chemistry, North Carolina, 2008); BMA (n 12); K Smallwood and others ‘Impact of scientific developments on the Chemical Weapons Convention (IUPAC Technical Report)’ (2013) Pure and Applied Chemistry 85(4) 851. Medicinal chemistry can be considered as the identification, development, production, and evaluation of chemical agents for potential use as pharmaceutical drugs. Pharmacology is the study of the action of drugs on living systems. Neuroscience is the study of how genetics and the environment affect neurotransmitter-receptor systems in the brain, and how these systems in turn affect behaviour. Neuropharmacology is the study of drug-induced changes in the functioning of cells in the nervous system. Psychopharmacology is the study of drug-induced changes in mood, thinking, and behaviour. Neuropsychopharmacology is the convergence of medicinal chemistry, pharmacology, and neuroscience to study the physiological and psychological properties of agents acting within the central nervous system. OPCW, Report of the Scientific Advisory Board on Developments in Science and Technology for the Third Special Session of the Conference of the States Parties to Review the Operation of the Chemical Weapons Convention (OPCW, The Hague, 2012); OPCW, Note by the Director-General, Report of the Scientific Advisory Board on Developments in Science and Technology (Second Review Conference, The Hague, 2008). See, for example: The Royal Society, Brain Waves Module 3 (n 9); The Royal Society, Brain Waves, Module 1: Neuroscience, Society and Policy, January 2011; N Andreasen, Brave New Brain: Conquering Mental Illness in the Era of the Genome, (Oxford University Press, New York, 2004); Neuroscience 2000: A New Era of Discovery, Symposium Organised by the Society of Neuroscience,Washington DC, 12–13 April 1999. Royal Society, Brain Waves Module 3 (n 9) 50. 369

Michael Crowley and Malcolm Dando

advances could also potentially be exploited for military and law enforcement applications, including the development of ICA weapons.30 There are indications from open source information that research potentially applicable to ICA weapons development continued after the coming into force of the CWC in 1997 and may still be taking place in certain states, although the range of agent types under active consideration may have narrowed. As the Royal Society Brain Waves study report stated:31 Many different forms of incapacitation were investigated during the Cold War, but with increasing emphasis on rapid action and short duration of effects, contemporary interest has tended to focus on sedative-hypnotic agents that reduce alertness and, as the dose increases, produce sedation, sleep, anaesthesia and death. The Royal Society study in particular explored dual-use research related to opioids, benzodiazepines, alpha 2 adrenoreceptor agonists, and neuroleptic anaesthetic agents and discussed their potential application as ICA weapons.32

Potential candidate ICAs Morphine is the prototypical opiod analgesic used in the medical treatment of moderate to severe pain, however its use is associated with respiratory depression, sedation, and addiction. The search for novel opiod narcotic agents that do not cause such side effects is still being actively pursued.33 Fentanyl, for example, is a synthetic opioid many times more powerful in its effects than morphine, and a large number of fentanyl derivatives have been investigated, although the potential for respiratory depression remains problematic. However, despite advances in analogue synthesis34 and greater understanding of analogue interactions with the µ receptor in humans and consequent effects upon their targets, the operational use of such fentanyl analogues as ICA weapons, as shown in the 2002 Moscow theatre siege, has still resulted in many deaths (see later for further discussion). GABA (γ-aminobutyric acid (GABA) is a major inhibitory neurotransmitter in the brain. Benzodiazepines enhance the effect of GABA on GABAA receptors and have therefore found medical use in the treatment of anxiety and induction of anaesthesia, but they also affect respiration and the blood system. Again, much research has been carried out in an effort, for example, to find faster- and shorter-acting agents with more precise effects, and some of this research may have applicability for ICA weapons development.35 The locus coeruleus neurones in the brain produce the neurotransmitter noradrenaline and have widespread ramifications that function to help induce the alert wakeful state. Alpha 2 adrenoreceptors provide inhibitory negative feedback to the locus coeruleus neurones when they produce noradrenaline.36 An agent such as dexmedetomidine, therefore, which mimics the 30

31 32 33 34 35 36 370

Spiez Laboratory, ‘Incapacitating chemical agents: Fact Sheet’ (Speiz Laboratory, Speiz, 2013). Available at: www.labor-spiez.ch/en/akt/pdf/SCHB_Fact_Sheet_ICA_final_20130308.pdf accessed 1 July 2014. Royal Society, Brain Waves Module 3 (n 9) 46. Ibid 46–50. Ibid 47. L Dosen-Micovic, ‘Molecular modelling of fentanyl analogs’ (2004) 69 Journal of the Serbian Chemical. Society 843. Royal Society, Brain Waves Module 3 (n 9) 47–8. Ibid 48.

State development of incapacitating chemical agent weapons

effect of the natural transmitter (i.e. an analogue), can also reduce alertness and wakefulness. It can therefore find medical use in anaesthesia and has also been investigated as a potential ICA weapon.37 Neuroleptic anaesthesia, unlike conventional general anaesthesia, produces a state of unawareness in the patient characterised by unconsciousness and analgesia whilst patient muscle tone and reflexes remain largely intact.38 Consequently, researchers have highlighted the potential application of combinations of neuroleptic anaesthetic agents as ICA weapons, particularly given the possibility of developing a mixture of agents that would produce the neuroleptic state without causing undesired side effects.39

ICA delivery In addition to discovery or synthetic development of candidate ICAs and analysis of the physiological pathways on which they will act, those seeking to employ such agents for law enforcement or military purposes must also overcome the challenge of ensuring a controlled delivery of ICAs to the target population. Two factors influence such agent delivery: dissemination (the transport of the agent from the attacker to the immediate vicinity of the targeted person or persons); and, uptake (the subsequent movement of the agent to its active site within the target).40 The 2012 Royal Society study highlighted the rapid advances in aerosol technology that have already been employed to deliver effective inhaled drug therapy for the treatment of disease41 and has warned that ‘[a]dvances in research into inhalation based methods of drug and vaccine delivery may offer potential applications in the delivery of agents for incapacitation’.42 Similar concerns were raised in the 2008 report by the National Research Council (NRC) on Emerging Cognitive Neuroscience and Related Technologies,43 which described developments in nanotechnologies or gas-phase techniques that could provide improved means of dispersal of chemicals agents over wide areas.44 It noted that at the time ‘pharmacological agents [were] not used as weapons of mass effect, because their large-scale deployment [was] impractical’ as it was ‘currently impossible to get an effective dose to a combatant’.45 However the report stated that ‘technologies that could be available in the next 20 years would allow dispersal of agents in delivery vehicles that would be analogous to a pharmacological cluster bomb or a land mine.’46 In addition, the implications of developments in particle engineering and nanotechnology that could allow the delivery of biologically active chemicals to specific target organs or 37

38 39 40 41 42 43 44

45 46

J Lakoski, W Murray, and J Kenny, ‘The advantages and limitations of calmatives for use as a nonlethal technique’ (College of Medicine Applied Research Laboratory, Pennsylvania State University, Pennsylvania, 2000) 37. Royal Society, Brain Waves Module 3 (n 9) 48–9. See for example: Lakoski, Murray, and Kenny (n 37) 37. Royal Society, Brain Waves Module 3 (n 9) 50. Ibid. Ibid 51. NRC, Emerging Cognitive Neuroscience and Related Technologies (National Academies Press, Washington DC, 2008). See also National Academies of Science, Trends in Science and Technology Relevant to the Biological and Toxin Weapons Convention: Summary of an International Workshop (National Academies Press, Washington DC, 2011). See in particular: K Nixdorff, ‘Remarks: Implications Stemming From Advances in Dual-Use Targeted Delivery Systems’ 18–9. NRC (n 43) 137. Ibid. 371

Michael Crowley and Malcolm Dando

receptors were highlighted in the 2008 NRC report that warned that nanotechnologies could be used to overcome the blood–brain barrier and thereby ‘enable unparalleled access to the brain. Nanotechnologies can also exploit existing transport mechanisms to transmit substances into the brain in analogy with the Trojan horse’.47 The subsequent review by the Royal Society into contemporary research in this area noted that whilst such research had great potential in the development of therapeutics ‘in the current state of development, delivery of agents with nanocarriers by oral or intravenous route would have very limited application in the development of incapacitating chemical agents’.48 However, once again, this is an area where further advances in relevant technologies could alter current threat perceptions dramatically.

Dual-use considerations and monitoring technologies of concern Dual use is a concept that can be applied to the tangible and intangible features of a technology that enable it to be utilised for both hostile and peaceful ends with no, or only minor, modifications.49 Authors who have examined historical attempts by a state biological weapons programme to utilise dual-use technology have highlighted the importance of intent in determining whether a particular dual-use technology or agent is so employed. The hostile use of a specific agent or technology does not arise automatically from the inherent properties of that agent or technology, but requires the active intervention of relevant actors.50 These concepts can be employed in a variety of contexts and for a variety of technologies. They are of course central to the understanding of the concerns explored here. Indeed previous attempts to identify possible candidate ICAs in certain states have explicitly highlighted and sought to employ the potential dual-use applications of drugs initially developed for medical purposes. For example, the 2000 report of the study conducted by the Applied Research Laboratory and the College of Medicine at Pennsylvania State University to identify the range of drug classes that had potential utility as ICA weapons, stated that, It is well known that for every one new compound successfully proceeding from the discovery phase through all phases of clinical trials and on to market, perhaps hundreds, if not thousands, of compounds are discarded or shelved by the pharmaceutical industry [for example, as a result of their side effects].51 But the study continued that ‘in the variety of situations in which non-lethal techniques are

47 48 49

50

372

Ibid 135. Royal Society, Brain Waves Module 3 (n 9) 52. J Molas-Gallart and J Perry Robinson, ‘Assessment of Dual-use Technologies in the Context of European Security and Defence: Report for the Scientific and Technological Options Assessment, European Parliament’ (SPRU, Brighton, 1997). C McLeash and B Balmer, ‘Development of theV-Series Nerve Agents’ in J Tucker (ed.) Innovation, Dual Use, and Security: Managing the risks of emerging biological and chemical technologies (MIT Press, Cambridge, Massachusetts 2012) 273–89. See also: C McLeash, ‘Reflecting on the dual-use problem’ in B Rappert and C McLeish (eds) A Web of Prevention: Biological Weapons, Life Sciences, and the Governance of Research (Earthscan, London, 2007).

State development of incapacitating chemical agent weapons

used there may be less need to be concerned with side-effects; indeed, perhaps a calmative may be designed that incorporates a less than desirable side-effect… as part of the drug profile.’52 Furthermore, the Penn State study recommended explicit collaboration in this area, stating that ‘it may be appropriate to develop a working relationship with the pharmaceutical industry to better incorporate their knowledge and expertise in developing a non-lethal calmative technique’.53 The search for potential candidate ICAs with potential weapons utility is likely to be informed by current advances in neuropharmacology, genomics, and related disciplines, which have revolutionised understanding of the brain neurotransmitter/neuroreceptor systems. Although such research is at a very early stage in the understanding of the ways in which chemicals are used in the brain’s information-processing system and while it may seem that finding an effective, safe ICA weapon is not possible, the search may continue to prove attractive to certain states as apparently new opportunities arise.54 In such circumstances, in addition to work on efficient new methods of production of known agents, other dual-use research could also raise concern. For example, attempts to design and synthesise novel (more effective) analogues of known agents, to study the structure of known receptor sub-types, or to explore the effects of multiple agents designed to counter unwanted side effects, might be misperceived if there was not adequate transparency to ensure that peaceful intentions were well understood. Similarly, studies exploring potential ICA or surrogate agent aerosolisation, dispersal, and uptake, for which there appears to be little medical justification, need to be closely monitored. In addition to monitoring such processes, it is important to look beyond research directly connected to particular chemical agents or potential means of delivery and explore the mechanisms by which such research may be transformed from that undertaken to further knowledge, or for the development of pharmaceutical drugs to alleviate illness and disability; to be instead employed in the development of ICA weapons. Such considerations have informed the indicators of potential concern utilised in the open source survey conducted by the authors, as discussed below.

Application of the CWC 1993 to ICA research and development Article I of the CWC 1993 prohibits the development, production, stockpiling, transfer, and use of chemical weapons ‘under any circumstances’. The Convention defines chemical weapons, under Article II(1)(a), as including: ‘toxic chemicals and their precursors, except where intended for purposes not prohibited, as long as the types and quantities are consistent with such purposes’. Article II(2) defines a toxic chemical as: ‘… any chemical, regardless of its origin or method of production, which, through chemical action on life processes, can cause death, temporary incapacitation or permanent harm to humans or animals.’ Although the Convention includes three Annexes of Scheduled toxic chemicals specifically ‘identified for the application of verification measures’,55 the scope of the Convention is not constrained to these Schedules but is determined by Article II(1), otherwise known as the general purpose criterion

51 52 53 54 55

Lakoski, Murray, and Kenny (n 37) 48. Ibid. Ibid. MR Dando, ‘Scientific outlook for the development of incapacitants’ in AM Pearson and others (eds), Incapacitating Biochemical Weapons: Promise or Peril (Lexington Books, Lanham, 2007). Ibid. 373

Michael Crowley and Malcolm Dando

(GPC). Because the GPC establishes a prohibition based on intent rather than on a limited list of toxic chemical agents, it allows the Convention to accommodate and reflect developments in science; consequently, as Meselson and Perry Robinson have highlighted, ‘even toxic chemicals whose existence is not yet known are covered’ by its provisions.56 Since those chemicals promoted as ICAs can ‘cause death, temporary incapacitation or permanent harm’ to their targets, they are considered to be toxic chemicals and are covered under the scope of the Convention. Such toxic chemicals would be deemed to be chemical weapons (and therefore prohibited) if they were used for purposes other than those exemptions stipulated under Article II (9) of the Convention, or if their use was inconsistent with the types and quantities restriction of Article II. The CWC 1993 does not explicitly prohibit research relating to chemical weapons, but instead prohibits development and production of such weapons under Article I. However, where research is an intrinsic part of a weapons-development programme it clearly will fall within the scope of the Article I prohibition. There appear to be four potential scenarios where research into pharmaceutical chemicals that could be employed as ICA weapons may fall within the scope of the CWC 1993, triggering different obligations upon CWC states parties:

Scenario 1: State research into and development of ICAs and associated means of delivery intended for armed conflict The use in armed conflict of the toxic properties of chemical agents as weapons is prohibited, as is their development, production, acquisition, stockpiling, retention, or transfer when intended for such purposes, under Articles I and II. If states have undertaken programmes to develop ICA and/or associated means of delivery for such purposes, they are required to halt such activities, declare any chemical weapons and chemical weapons production facilities they possess under Article III57 and ensure they are verifiably destroyed under Article I and in accordance with Articles IV and V, respectively.58

Scenario 2: State research into and development of ICAs and associated means of delivery intended for law enforcement purposes Among the ‘purposes not prohibited’ listed in Article II (9) of the Convention are: ‘(d) Law enforcement including domestic riot control purposes’. However, toxic chemicals can only be employed for such purposes provided their use is consistent with the ‘types and quantities’ restriction of Article II. No OPCW policy-making organ (PMO) has made any interpretative statements regarding application of these Articles or issued guidance as to whether toxic chemicals intended for use as ICA weapons can be employed for law enforcement purposes and if so, under what circumstances. It is therefore left to individual states parties to interpret the scope and nature of their obligations in this area. Under Article III, states parties are required to submit an initial declaration to the OPCW Technical Secretariat of all toxic chemicals that are kept for riot control purposes.59 However,

56 57 58 59 374

M Meselson and J Perry Robinson, ‘New Technologies and the Loophole, Editorial’ (1994) 23 (March) Chemical Weapons Convention Bulletin 1. Article III(1)(a)–(c). Article I(2) and (4), Article IV and Article V. Article III(6)(1)(e).

State development of incapacitating chemical agent weapons

there are no requirements for states parties to provide any information concerning development or possession of non-scheduled toxic chemicals intended for use as ICAs in law enforcement, provided that such activities do not breach Article I of the Convention.

Scenario 3: State research into and/or development of ICAs for protective purposes Under Article X of the CWC 1993, states are permitted to ‘conduct research into, develop, produce, acquire, transfer or use means of protection against chemical weapons, for purposes not prohibited under this Convention’60 even where this involves production in appropriate quantities of potential chemical weapons agents, including ICAs.61 Consequently, in order to increase ‘transparency of national programmes related to protective purposes’, Article X(4) obliges each state party to ‘provide annually to the Technical Secretariat information on its programme’. In 2004, the 9th CSP adopted a template form for states parties to utilise when submitting their Article X(4) declarations, in order to facilitate consistent implementation by a greater number of states.62 As of 31 December 2012, 101 states parties had submitted information on their national programmes for protective purposes.63 Although a small number of states have made their annual Article X declarations public most have not,64 and information publically released by the OPCW on these submissions is limited. Consequently, it is not possible to determine whether the vast majority of states parties have provided any information to the OPCW on research for ‘protective purposes’ related to ICAs, and, if so, whether such information is accurate and complete.

Scenario 4: Research into toxic chemicals and/or delivery mechanisms purportedly for medical or other non-prohibited purposes, but which can be employed as ICAs From a combined reading of Article I and Article II development, production, acquisition, stockpiling, retention, or transfer of toxic chemicals (including those that could be employed as ICAs) for ‘Industrial, agricultural, research, medical, pharmaceutical or other peaceful purposes’ would be considered as ‘Purposes Not Prohibited’ under the CWC 1993,65 provided such activities conformed to the ‘types and quantities’ restriction.66 All states parties are, however, required under Article VII(1)(a) to ‘adopt the necessary measures to implement [their] obligations under this Convention’ and shall ‘prohibit natural and legal persons anywhere… under [their] jurisdiction… from undertaking any activity prohibited to a State Party under this Convention, including enacting penal legislation with respect to such activity.’ Consequently,

60 61 62

63 64

65 66

Article X(2). See: Perry Robinson ‘Incapacitating chemical agents in context’ (n 19) 94. OPCW, Conference of the States Parties, Ninth Session C-9/DEC.10, 29 November–2 December 2004, 30 November 2004, Decision, Submission of information regarding national programmes related to protective purposes pursuant to Article X, Paragraph 4 of the Convention. OPCW, ‘Status of Implementation of Article X of the Chemical Weapons Convention as at 31 December 2012’ (EC-72/DG.1, OPCW 2013). See for example the UK country case study, in MJA Crowley and MR Dando,‘Down the Slippery Slope: A Study of contemporary dual-use research potentially applicable to incapacitating chemical agent development’ (Biochemical Security Project, University of Bath, 2014). Article II(9)a. Article II(1)a. 375

Michael Crowley and Malcolm Dando

states parties need to adopt and enforce the appropriate national implementation measures to ensure that no research and development activities related to toxic chemicals, ostensibly for peaceful purposes, are being utilised for prohibited purposes such as development of ICA weapons intended for armed conflict, terrorist attacks, or human rights abuses.

Findings and responses The detailed case studies carried out67 describe a variety of different scenarios in which dualuse research, potentially applicable to ICA weapons has reportedly occurred and/or where such weapons have reportedly been developed or used, in the following countries. In China, ICA delivery devices employing an unknown anaesthetic agent for use against individuals have been developed and marketed by Chinese companies at international arms fairs held in China, and in 2012 were reportedly held by the Chinese Peoples’ Liberation Army. To date, China has made no statement clarifying whether any Chinese entity has conducted or is conducting research activities related to the development of ICAs and associated delivery mechanisms targeting groups of individuals. Next, from 2005 to 2007, Czech scientists published papers describing their investigations over several years relating to a range of pharmaceutical chemicals including various opiods, ketamine, medetomidine, and midazolam, specifically highlighting their potential utility as ‘pharmacological non-lethal weapons’. Research into such chemicals continued but subsequent papers contained no explicit reference to their potential application as ‘non-lethal weapons’. The Czech Republic CWC National Authority has investigated these activities and concluded that ‘their research programmes had justifiable medical goals, but their reporting in public media exceeded actual results of the research thus creating a false impression of possible development of some sort of chemical weapons.’ As for India, scientists at the Defence Research & Development Organisation (DRDO) have conducted work related to the synthesis, aersolisation, and bio-efficacy of fentanyl and its analogues, as described in papers from 2005 until 2013. In 2014, the Indian CWC National Authority gave ‘categorical and unambiguous clarifications’ that India has no stockpile of ICAs, is not involved in the weaponisation of ICAs, and that ‘research on fentanyl is being carried out in India only for the purpose of protection’. It is not known whether such activities have been reported to the OPCW as part of India’s annual (Article X) declaration of national programmes related to protective purposes. Regarding Iran, research scientists at Imam Hossein University (IHU) have explored the structural–activity relationships of fentanyl and its analogues and have attempted to generate stable long-lasting aerosols of medetomidine and other potential ICAs; their work is detailed in papers from 2007 till 2013. IHU is an academic institution run along military lines and controlled by the Iranian Revolutionary Guard. The Iranian CWC National Authority has stated this ‘academic research is financed by [the] ministry of science and technology’ and is ‘solely [for] scientific purposes’. Israel reportedly initiated a chemical weapons research and development programme in the 1950s but the current nature of such activities is unknown. Previous work was based at the Israel Institute for Biological Research (IIBR), and included research on potential ICAs. Israeli security services have employed an ICA weapon as an attempted assassination tool on at least

67 376

See Section 4 of Crowley and Dando (n 64).

State development of incapacitating chemical agent weapons

one occasion, in 1997. There is insufficient publicly available information to determine whether any Israeli entity is currently undertaking research into weapons employing ICAs, or whether Israel holds stockpiles of such weapons. There is limited information available indicating that the IIBR may be conducting work in potentially relevant dual-use fields, although the details of the specific IIBR research projects are not available. As for the Russian Federation, there are indications of long-standing research into, and attempted development of ICAs, initially by the USSR and subsequently by the Russian Federation. In 2002, Russian Security forces employed an ICA to free 900 hostages held by Chechen fighters. Although the hostages were freed, 125 hostages died due to the effects of the ICA and an unknown number of former hostages suffer long-term injury. Russian researchers have continued work potentially related to the development and employment of ICA weapons including computer modelling of ‘calmative’ ‘gas flows’ in enclosed spaces, as detailed in a 2009 presentation, and research relating to opiate receptors (OR) and their interaction with opiate receptor ligands, detailed in papers from 2005 till 2012. Since the 1970s, Syria has reportedly acquired and/or developed and stockpiled a range of chemical weapons – this stockpile has now been declared and is being destroyed under OPCW supervision. From early 2012 there have been repeated but, to date, unconfirmed allegations that the Syrian Government armed forces employed ICA weapons during the ongoing conflict with armed opposition forces. For its part, the UK Government has released documents detailing the country’s previous attempts to develop ICA weapons for military purposes from 1959 to 1972; there is no evidence of subsequent ICA research for military purposes. There are indications of ICA research continuing into the 1980s, although the nature and purpose of such activities are not known. In the early-to-mid-2000s, the UK Government assessed the feasibility of introducing ICA weapons for certain law enforcement purposes, but subsequently rejected this option. In 2013, the UK ‘unequivocally’ declared that it ‘neither holds or is developing any ICAs for law enforcement’. UK researchers based at Porton Down have conducted research into ICAs for ‘protective purposes’, and the UK has provided some information on these activities to the OPCW in its annual Article X declarations, and also to the UK Parliament. The US has a long history of research into ICA weapons dating back to the 1950s. Approximately 60,000 kilograms of BZ were manufactured and the agent was weaponised in two munition types that entered the US arsenal in 1964. There are no confirmed reports that ICA weapons were ever employed in armed conflict, and all stockpiles were subsequently destroyed in the late 1980s and 1990s. Research into ICAs, and suitable dispersal mechanisms, continued for both military and law enforcement purposes, even after the signing and coming into force of the CWC 1993, although there is no evidence of completed development or production of ICA weapons. In 2013 the US declared that it ‘is not developing, producing, stockpiling, or using incapacitating chemical agents’. It is not currently known whether the US undertakes dual-use research related to ICAs for ‘protective purposes’, and if so how and whether this is reported to the OPCW in its Article X declarations.

Conclusion Analysis of open source information concerning both historical ICA weapons development programmes and contemporary research potentially applicable to the study or development of ICA weapons, indicates that such activities have been undertaken either by scientists operating within state research establishments principally linked to defence, security, or law enforcement bodies, or by scientists working in civilian research institutions who are funded or controlled 377

Michael Crowley and Malcolm Dando

by such bodies. Currently there is no evidence of concerted attempts by non-state actors, such as terrorist groups, to conduct research and development of ICA weapons. Publicly accessible information clearly indicates that China, Israel, and the Russian Federation have acquired or developed ICA weapons and that such weapons are either in the possession, or have been used by law enforcement or security services of those countries since the coming into force of the CWC 1993 in 1997. The situation in other states is less certain: although evidence of relevant dual-use research has been obtained in a number of other countries, the full nature and purpose of such research is often unclear as are the intended applications to which it will be put. A number of factors have contributed to such uncertainty including the inherent dual or rather multiple applicability of research in these areas; the difficulty with establishing the true intent of the individual researchers or the research institutions; and the current contested nature of the application of the CWC 1993 in these areas. Such uncertainties are exacerbated by the limited information released publicly by states concerning research programmes funded or controlled by defence, security, or law enforcement bodies: with the consequent danger that public reporting on these issues will be incomplete or inaccurate, and even that disinformation will be disseminated and accepted. Similarly, since there are currently no OPCW reporting or transparency mechanisms covering ICA weapons research and development for law enforcement purposes it is unlikely that CWC states parties conducting such activities currently provide information to the organisation. In such an information vacuum, there is a danger that misconceptions into entirely benign research may arise, or conversely that ICA weapons development programmes intended for law enforcement or military purposes may operate without the knowledge of the international community. Research into ICAs for protective purposes appears to have taken place in certain states, as permitted under the CWC 1993. Clearly such work requires some level of secrecy with regard to the threats that are of concern and the responsive measures that are being undertaken. Yet, without some assurance that the work is only directed at defensive requirements such as identification of agents for prophylaxis and treatment, and development of protective measures, there is an obvious danger that misperceptions about the nature and purpose of such activities could arise. The potential for false perceptions about current state activities, and misunderstandings about state motivations behind dual-use research, are exacerbated by the inability of the OPCW PMOs to issue clear guidance as to whether ICA weapons can be employed for law enforcement purposes and, if so, under what circumstances. This policy lacuna has left individual states parties to interpret the scope and nature of their obligations in this area. It appears that, to date, state practice, as embodied in ICA weapons research and development activities, has not solidified around either a ‘permissive’ or ‘restrictive’ interpretation. However, in the last few years there are indications of a growing movement towards a more ‘restrictive’ approach with certain states parties for the first time publicly clarifying existing ‘restrictive’ positions or introducing such positions where there had previously been silence, ambiguity, or a ‘permissive’ approach. However, until the CWC states parties address this matter collectively, the potential for state practice to establish a ‘permissive’ interpretation remains. A range of scientific bodies and international organisations have highlighted the potential consequences of this permissive interpretation: with first and foremost the immediate unacceptable risk that the use of such weapons will result in the death or serious injury of a proportion of the targeted population. Furthermore, the development and introduction of ICA weapons initially intended only for certain discrete law enforcement purposes, such as hostagetaking, threatens to create a ‘slippery slope’ with the danger that such agents, once introduced, will consequently be used for an increasingly broad range of law enforcement purposes and by 378

State development of incapacitating chemical agent weapons

an ever-growing range of actors, including military personnel. The consequent ‘creeping legitimisation’ of such weapons could in turn result in both horizontal and vertical proliferation dramatically increasing the danger of their subsequent employment in armed conflicts, terrorist activities, or large-scale human rights abuses by state or non-state actors. The current study indicates that there may be several different entry points upon this slippery slope, with dualuse research that could potentially be applied to ICA weapons being conducted in a variety of institutional environments and for a range of (stated or unstated) purposes. Because the possession and utilisation of ICA weapons currently appears to be restricted to a relatively small number of states, there is still time for the international community to act. Despite the probability of more ‘wars amongst the people’ in the coming decades, there remains a window of opportunity for the OPCW to take a precautionary and preventive approach: to effectively monitor developments in relevant dual-use research and actively address the attempted development, acquisition, stockpiling, and potential employment of these weapons. However, if the OPCW does not act decisively in the near future, there is a danger that an ever-growing number of states will seek to harness advances in relevant scientific disciplines in ICA weapons development programmes, or may be perceived – rightly or wrongly – of doing so. This, in turn, may convince further states to conduct their own ICA weapons research and development programmes, or potentially explore an even broader range of chemical agents, with the danger of a consequent spiral of actions and reactions that could weaken or eventually erode away the prohibition of chemical weapons. In such circumstances, where the use of these ‘novel’ weapons becomes increasingly commonplace, it is likely that terrorist groups will also see utility in their use, and with little regard for any collateral damage that they may cause to victims or to whatever remains of the international arms control and disarmament regime. In short, as with all counter-terrorism strategies, we should be careful to consider carefully whether any short-term advantages of this particular approach will eventually be outweighed by much greater long-term costs.

379

This page intentionally left blank

Part 4

Preventive measures

This page intentionally left blank

25 ‘Prevent’ policies and laws A comparative survey of the UK, Malaysia, and Pakistan Abdul Razak, Javaid Rehman, and Joshua Skoczylis

Introduction With a common heritage and similarities of governance structures, the three jurisdictions of the UK, Malaysia, and Pakistan share some commonalities in counter-terrorism strategies. Although never consistently pursued – and indeed with many examples to the contrary – British policy-makers have attempted to prevent political violence, radicalisation, and extremism through dialogue and understanding of local communal matters. For example, efforts to win ‘hearts and minds’ can be traced in the British military campaigns in the Malaya,1 where the policy was deployed to engage with communities affected so as to encourage them to take sides against terrorists and to isolate or dissuade the Chinese insurgents.2 Various facets of terrorism remain a major concern for all three states, but there are nevertheless significant differences in the perception of terrorism and identification of terrorists. As core members of the Organisation of Islamic Cooperation (OIC), Pakistan and Malaysia have consistently placed emphasis on, and targeted, state-sponsored terrorism. Thus, military operations and interventions in the Middle East, Kashmir and Chechyna, by states such as Israel, India and Russia are perceived by Malaysia and Pakistan as the prime acts of terrorism in the world.3 More recently, the US and UK invasions and occupations of Iraq and Afghanistan

1

2 3

‘The answer lies not in pouring more troops into the jungle, but in the hearts and minds of the Malayan People’: General Templer, Director of Operations and High Commissioner for Malaya, during 1952: See C Walker and J Rehman,‘“Prevent” Responses to Jihadi Extremism’ in V Ramraj and others (eds), Global Anti-Terrorism Law and Policy (Cambridge University Press, Cambridge, 2011) 243. F Kitson, Low-Intensity Operations (Faber and Faber, London, 1971); R Stubbs, Hearts and Minds in Guerrilla Warfare (Oxford University Press, Singapore, 1989); K Ramakrishna, Emergency Propaganda (Routledge-Curzon, Richmond, 2001). See R Sunderland, Winning the Hearts and Minds of the People: Malaya 1948-1960 (RAND, Santa Monica 1964) 34. See The Star, ‘DPM: Release of letters proves our stand on Israel’ (2012). Available at: www.thestar.com.my/News/Nation/2012/03/02/DPM-Release-of-letters-proves-our-stand-onIsrael/ accessed 21 September 2014. 383

Abdul Razak, Javaid Rehman, and Joshua Skoczylis

have been viewed, at least by conservative segments of societies and administration in the two countries, as not only unlawful acts, but as further examples of state terrorism. Conversely, individual terrorist actors such as Osama bin Laden have retained a considerable constituency and level of support in Malaysia and Pakistan.4 While Osama bin Laden was indicted to face trial for terrorist offences in the US, and is widely regarded as an international terrorist, he was eventually discovered in the Pakistani garrison town of Attabotabad, taking refuge, presumably with the support of elements of political and military establishment.5

An overview of ‘Prevent Policies’ in the UK, Malaysia, and Pakistan Prevention in the UK The UK has for many years engaged in the prevention of terrorism domestically and abroad. This section concerns itself with how prevention efforts in the UK have evolved and become formalised through CONTEST – the UK government’s counter-terrorism strategy – and its ‘Prevent’ workstream since the events of 9/11 and the perceived ‘dawn of the new terrorism’.6 This section focuses mainly on the Prevent policy,7 but it is important to acknowledge that governments have introduced other preventive measures, such as executive control orders, now Terrorism Prevention and Investigation Measures (TPIMs), and increased stop-and-search powers.8 According to the Security Services, the threat from international terrorism is ‘severe’.9 The term ‘international terrorism’ can be somewhat misleading because it is generally synonymous with terrorism linked to jihadi-inspired ideologies, which can include homegrown terrorism. The Woolwich attack in London, in which an off-duty soldier was murdered, and the ongoing conflict in Syria and Iraq demonstrate the internal and external threats faced by the UK from individuals inspired by violent jihadi ideologies.10 As early as 2002, civil servants drafting CONTEST acknowledged that any such strategy needed to be comprehensive and include aspects of prevention: ‘It was clear that a long-term effort would be needed to prevent another generation falling prey to violent extremism of the [Al Qa’ida] ideology.’11

4

5 6 7 8 9 10

11 384

The extent of support for Osama bin Laden can be gauged from the fact that Dr Afridi, a medical doctor who led his apprehension and attacks on his compound by the US Special Forces, was arrested and awarded a lengthy prison sentence for his involvement in the capture and execution of Osama bin Laden: See Abbottabad Commission Report (Government of Pakistan, Islamabad 2013). Available at: http://s3.documentcloud.org/documents/724833/aljazeera-bin-laden-dossier.pdf accessed 20 September 2014. Ibid. P Neumann, Old And New Terrorism (Polity, Cambridge, 2009). HM Government, Prevent Strategy (Cm 8092, London, 2011); HM Government, CONTEST:The United Kingdom’s strategy for countering terrorism (Cm 8123, London, 2011) in this book. See Chapters 15 (Kremnitzer and Saba) and 22 (Lennon). MI5,‘Threat Levels’ (Security Services, MI5, 2014). Available at: www.mi5.gov.uk/home/the-threats/ terrorism/threat-levels.html accessed 29 August 2014. G Greenwald, ‘Was the London Killing of a British Soldier “Terrorism”?’ (The Guardian, London, 23 May 2013). Available at: www.theguardian.com/commentisfree/2013/may/23/woolwichattack-terrorism-blowback accessed 22 June 2014; K Rawlinson, ‘UK will feel fallout of war in Syria “for years to come”, warns top Met Officer’ (The Guardian, London, 22 June 2014). Available at: www.theguardian.com/world/2014/jun/22/uk-syria-islamic-extremism-isis-muthana-cressidadick accessed 22 June 2014. D Omand, Securing The State (Hurst & Co Publishers, London, 2010) 101.

‘Prevent’ policies and laws: a comparative survey

The 2005 London bombings appeared to be a catalyst for a substantial shift in the government’s counter-terrorism policy, pushing them towards acknowledging more openly the threat from home-grown terrorism.12 This shift led to Prevent becoming more prominent within the CONTEST strategy. Although mainly a domestic policy, the Foreign Office and the Department for International Development (DFID) continue to engage with other countries, such as Pakistan. Pakistan has been of particular concern because of links between British Muslim communities and Pakistan, which is seen as a major exporter of terrorism.13 Although there are some differences between New Labour’s Prevent policy and the Coalition Government’s policy, the main aims remain: to prevent vulnerable individuals from becoming radicalised and engaging in terrorism. This is achieved through a multi-agency approach led by local authorities and in conjunction with local Muslim communities and groups. The Prevent Review in 2011 determined that the main objectives are to: (i) Respond to the ideological challenges of terrorism and the threat we face from those who promote it; (ii) prevent people from being drawn into terrorism and ensure that they are given appropriate advice and support; and (iii) work with sectors and institutions where there are risks of radicalization which we need to address.14 Prevent has shifted towards a programme of net-widening and surveillance, although aspects of these tendencies were already present.15 This quest for knowledge and the gathering of as much information as possible, focusing on Muslim communities and individuals with perceived links to jihadi extremism, has become ingrained within Prevent’s purpose and operations. Under the New Labour government version, the lines between prevention and community cohesion were blurred. This ‘blurring’ was problematic and was at times exploited by the police and local authorities, who were able to use Prevent funds for intelligence-gathering or community projects centred on community cohesion and integration rather than the prevention of terrorism.16 There were calls from the public, academics, politicians, and policy makers to ‘separate it much more clearly than before from general communities policy.’17 This separation becomes more pronounced post-2011 when Prevent came under the auspices of the Home Office’s Office for Security and Counter-Terrorism (OSCT), while community cohesion,

12 13

14 15

16

17

C Walker, ‘“Know thine enemy as thyself ”: discerning friend from foe under anti-terrorism laws’ (2008) 32 Melbourne Law Review 275. B Riedel,‘Pakistan and terror: the eye of the storm’ (2008) 618 The Annals of the American Academy of Political and Social Science 31; Department of Communities and Local Government (DCLG), The Pakistani Muslim Community In England: Understanding Muslim Ethnic Communities (London, 2009). HM Government, Prevent Strategy (n 7) 7. L Zedner, ‘Fixing the future? the pre-emptive turn in criminal justice’ in B McSherry and others (eds), Regulating Deviance: The redirection of criminalisation and the futures of criminal law (Hart Publishing, Oxford, 2009). M Innes and others, Assessing The Effect Of Prevent Policing: A Report To The Association Of Chief Police Officers (UPSI, Cardiff, 2011); Home Affairs Select Committee, Roots Of Violent Radicalization (HC 2010-12, 1446). Cabinet Office, Securing Britain In An Age Of Uncertainty: The Strategic Defence And Security Review (Cm 7848, London, 2010) 42; P Thomas, Responding To The Threat Of Violent Extremism – Failing To Prevent (Bloomsbury, London, 2012); Home Affairs Select Committee (n 16); A Kundnani, Spooked: How Not To Prevent Violent Extremism (Institute of Race Relations, London, 2009). 385

Abdul Razak, Javaid Rehman, and Joshua Skoczylis

integration, and challenging extremism not linked to terrorism became part of the government’s ‘Integration Strategy’ led by the DCLG.18 The review moved the policy away from the more broad-based community approach, removing some of the autonomy enjoyed by local authorities under New Labour. There has also been a shift towards a focus on identifying those at risk of radicalisation as evidenced by Project Channel (involving the monitoring and counselling of those deemed at risk).19 A ‘Tackling Radicalisation and Extremism Taskforce’ was set up in response to the Woolwich attack.20 Its report, which is very limited, suggests that more support should be given ‘to those places which face the biggest integration challenges, especially those communities where extremism is a particular problem.’21 This represents an intensification of Prevent. Some sections suggest the re-inclusion of community cohesion and integration and stress the importance of local authorities and promoting ubiquitous ‘British values’. British values as outlined in Prevent appear more universal than uniquely British, encompassing ‘democracy, the rule of law, individual liberty and mutual respect and tolerance of different faiths and beliefs.’22 According to a report by the Islamic Human Rights Commission (IHRC), an organisation working with Muslim and non-Muslim groups to campaign for justice regardless of race or religion, the government’s tackling extremism report attempts to create compliant Muslim communities, but fails to address the root causes of extremism.23 How this report will reshape terrorism prevention, and the Prevent policy in particular, is unclear at the moment. Although widely criticised by politicians, the media, and Muslim communities, Prevent remains a major component of CONTEST. Recommendations in the ‘Tackling Extremism’ report even suggest that certain elements of Prevent, such as Channel, should be strengthened.24 Within Prevent the boundaries between crime prevention and social policy are blurred, creating a sense of ambiguity between national policy makers and local frontline staff. Both national and local policy makers agreed that Prevent represented an important innovation in counter-terrorism policy in the UK. However, the policy embodies inherent policy and organisational tensions, which remain difficult to resolve. Despite the criticism, policy makers and frontline staff perceived it to be a success. However, as evaluations of Prevent programmes have been limited, its real success is difficult to measure.25

18

19 20

21 22

23

24 25

386

Department for Communities and Local Government, Creating The Conditions For Integration (DCLG, London, 2012). Available at: www.communities.gov.uk/documents/communities/pdf/ 2092103.pdf accessed 5 July 2012. See Home Office, Channel: Protecting vulnerable people from being drawn into terrorism. A guide for local partnerships (London, 2012). See R v Michael Adebolajo (Mujaahid Abu Hamza) and Michael Adebowale, Central Criminal Court, 26 February 2014; Intelligence and Security Committee, Report on the intelligence relating to the murder of Fusilier Lee Rigby (HC 2014-15, 795). Cabinet Office, Tackling Extremism In The UK (London, 2013) para 4.4. HM Government (n 7); I Cruse, Debate on the 19th June: Britishness (LLN 2008/015, House of Lords, 2008); Gordon Brown, Speech at Commonwealth Club (The Guardian, London, 27 February 2007). Available at: www.theguardian.com/politics/2007/feb/27/immigrationpolicy.race accessed 1 December 2014. Islamic Human Rights Commission, A Briefing By The Islamic Human Rights Commission on Tackling Extremism in the UK, A Report Of The Prime Minister’s Taskforce On Tackling Radicalisation And Extremism (IHRC, Wembley, 2014). Cabinet Office (n 21). J Skoczylis, The Local Prevention of Terrorism in Strategy and Practice: “Contest” a New Era in the Fight against Terrorism (PhD thesis, University of Leeds, 2013); Innes and others (n 16).

‘Prevent’ policies and laws: a comparative survey

Prevention in Malaysia The threat of terrorism in Malaysia remains a serious concern, but the counter-terrorism initiatives put in place by Malaysia have made terrorism a manageable national security issue. Although there have been no serious incidents of terrorism for several years, Malaysia is vulnerable to terrorist activity and continues to be used as a transit and planning site for terrorists.26 The repeal of the draconian Internal Security Act (ISA) 1960 and its replacement by the new Security Offenses (Special Measures) Act 2012, along with several amendments to existing laws, indicated a departure from Malaysia’s traditional counter-terrorism approach of detention without trial to a criminal prosecution-based system.27 Malaysia has also cooperated closely with the international community on counter-terrorism efforts, and the level of cooperation at the regional level is promising with the ratification of the ASEAN Convention on Counter Terrorism 2007 by all ASEAN member states.28 One notable nod towards preventive policies is Article XI, by which ‘[t]he Parties shall endeavour to promote the sharing of best practices on rehabilitative programmes including, where appropriate, social reintegration of persons involved in the commission of any of the offences covered in Article II of this Convention with the objective of preventing the perpetration of terrorist acts’. Unlike Indonesia, where the ‘hard security’ approach has been effective and successful in combating the threat of terrorism, a post-modern Malaysia has been more inspired by the successful implementation of preventive strategy by the British in combating the communist insurgency prior to independence. However, a new approach in the prevention of terrorism is needed. Several reasons justify this argument. First, many terrorist groups, especially in the region, have shown themselves to be adaptive and resilient. Despite the vigorous counter-terrorism campaigns, the arrests of militant members and disruption of their network, the response has been inadequate to shut down the groups. In fact, they have been able to reinvent themselves and have re-established their network.29 Unless radical terrorist ideology, recruitment, and the flow of funds are stemmed, there will be no significant progress in combating terrorism in the region. Second, the new radical militants are no longer the veteran Afghan Mujahideen, but are young people inspired by the radical ideology that justifies violent measures to achieve political objectives.30 This group is modern and sophisticated in their approach, utilising contemporary communications technology as part of their modus operandi.

26

27

28 29 30

US Department of State Bureau of Counterterrorism, Country Report on Terrorism 2013. Available at: www.state.gov/j/ct/rls/crt/2013/ accessed 1 December 2014, Ch 2; NG Jason,‘Malaysia Arrests Terror Suspects: Two Arrested in Counter-Terrorism Operation’ Wall Street Journal 30 July 2014. Available at: http://online.wsj.com/articles/malaysia-arrests-terror-suspects-1404111792 accessed 1 December 2014. See also: R Gunaratna (ed.), Terrorism in the Asia-Pacific: Threat and Response (Eastern Universities Press, Singapore, 2003); B Vaughn and others Terrorism in Southeast Asia (CRS 7-500, Congressional Research Service,Washington DC, 2009). T James and B Jeffery, ‘Preventive Detention in Malaysia: constitutional and judicial obstacles to reform and suggestions for the future’ (2013) 41 Georgia Journal of International and Comparative Law 535. A Ahmad, ‘The ASEAN Convention on Counter Terrorism 2007’ (2013) 14 Asian-Pacific Journal on Human Rights and the Law 93, 147. International Crisis Group, How Indonesian Extremists Regroup (Asia Report No 228, Brussels 2012). T Blair, ‘Keynote Speech – Why the Middle East Matters’ (Office of Tony Blair, Office of the Quartet Representative, 23 April 2014). Available at: www.tonyblairoffice.org/news/entry/whythe-middle-east-matters-keynote-speech-by-tony-blair/ accessed 12 May 2014. 387

Abdul Razak, Javaid Rehman, and Joshua Skoczylis

Third, a repressive move, especially in an environment where demands for greater freedom and respect for human rights are growing stronger, would probably backfire on the government especially when Malaysia has not suffered a major terrorist attack. No sensible government would want to rely solely on law enforcement mechanisms especially when every move of the government is closely monitored for any possible human rights violations. Fourth, as a modern and progressive Islamic country, Malaysia is concerned with its credibility and international standing. This justifies the need for Malaysia to re-focus its counter-terrorism initiatives and move towards preventive strategies grounded in the notion of human security. The implementation of rehabilitation programmes, for example, is not only a ‘risk reducing’ strategy but also part of the larger preventive strategies necessary for the interest of human security in the country. Finally, Malaysia’s interest in the preventive strategy seems founded on the concern that a continued repressive approach, based purely on law enforcement and hard security interventions, would upset its largely moderate Muslim population. A counter-terrorism strategy viewed as repressive and modelled against the American and Western strategies in Iraq and Afghanistan would definitely contribute to a significant sense of outrage among that Muslim population. The existing national counter-terrorism initiatives are not without shortcomings. The most obvious deficit has been the absence of a comprehensive, sustainable, and long-term prevention policy, within a coherent, strategic national counter-terrorism framework. The simmering radicalism and religious extremism in recent years, and the past involvement of Malaysian nationals in terrorist exploits under the auspices of the Al Qa’ida and Jemaah Islamiyah, not to mention those who are currently partaking in the jihadist movement in Syria advocated by the Islamic State of Iraq and the Levant, are indications of such shortcomings in Malaysia’s current counter-terrorism framework that put into question the effectiveness of the existing preventive strategy. Malaysia must evolve beyond the traditional preventive strategy, such as preventive detention and rehabilitation programmes, which are mainly confined to prisons and detention camps into a total approach to the problem.

Prevent policies in Pakistan Pakistan provides an example of a state preoccupied with multifarious forms of terrorism. Much of this emanates from religiously inspired extremism, but there is also sectarianism, racial as well as ethno-linguistic radicalisation. A historical and political survey is necessary in order to fully comprehend the forces of terrorism operational in Pakistan. In its 67 years of existence as a post-colonial state, Pakistan has faced considerable waves of political and religiously motivated terrorism. A state-sanctioned ‘reign of terror’ (aided and abetted by paramilitaries from Al-shams and Al-badr) was unleashed upon the Bengalis of East Pakistan in the civil war of 1971.31 Between one and three million Bengalis were massacred, creating sixteen million refugees and resulting in the conception of the first successful secessionist movement of the post-colonial era.32 In addition to the ethno-linguistic and racially motivated terrorism in East Pakistan, the state and its agents have continued to attack Pashtun and Baluch nationalists, and

31 32

388

J Rehman, Weaknesses in the International Protection of Minority Rights (Kluwer, The Hague, 2000) 88–103. VP Nanda, ‘Self-determination in international law: the tragic tale of two cities–Islamabad (West Pakistan) and Dacca (East Pakistan)’ (1972) 66 American Journal of International Law 321, 322.

‘Prevent’ policies and laws: a comparative survey

the polarised communities of urban Sindh.33 Recent times have witnessed a distressing milieu of ethno-linguistic terrorism coalescing with religiously inspired radicalisation. Such militancy as exhibited against the Ahmaddiyyas (declared non-Muslims by a constitutional amendment in 1974)34 is increasingly targeted at the non-Muslims, including the Christians and Hindus and the Muslim minority Shia communities. The regional as well as international stakeholders have strengthened the sectarian Sunni/Shia divide with Pakistan providing a de facto battleground for proxy sectarian wars, most prominently between Saudi Arabia and Iran. Pakistan’s military dictator, General Zia-ul-Haq (in power from 1977 to 1988), aided and abetted by Saudi Arabian and the US governments, promoted radical Sunni religious organisations such as the Sipha Sahaba Pakistan and Lashkar Jahngvi to counter the growing Shia influence in Pakistan subsequent to the Iranian Revolution. General Zia-ul-Haq, also promoted the ideal of the enforcement of Nizam-e-Mustafa (the Sharia). While this suited his political ambitions, such state-sanctioned Islamisation had adverse impacts and resulted in radicalising an entire generation. Religiously inspired educational institutions, the madrassas, flourished. State control over universities and strict censorship of media led to sustained repression of intellectual development of ethical, moral, and human rights values. The induction of repressive and arbitrary laws, including religion-based separate electorates, the Hudood ordinances, and antiblasphemy laws, polarised communities and created sharp, lasting divisions based on religion, gender, and sects.35 A lasting legacy of the Zia era has been the impact of jihadi organisations on Pakistani society. During the period of the Afghan Jihad, these organisations gained official state support and patronage to the extent of representing the state itself. Pakistani state and military establishments were actively engaged in arming and training the jihadis with operational training camps in various parts of Pakistan. The jihadi organisations, as well as the leaders from the jihadi organisations, were allowed considerable autonomy to prepare, train, and launch attacks from Pakistan into Afghanistan for what was termed the Afghan struggle for self-determination against the Soviet Union. Controversial figures such as Osama bin Laden and his Al Qa’ida associates forged considerable alliances in Pakistan and received substantial training by the Pakistan army and other state agencies, including the police. Notwithstanding the exit of the Soviets from Afghanistan, Pakistan has retained considerable affiliation with the Taliban and jihadi organisations. Pakistan provided continued support to the Taliban in Afghanistan, ultimately ensuring their hold on power, and was one of only three states (the other two being Saudi Arabia and UAE) to accord official recognition to the Taliban government. It was therefore not surprising that many of the Taliban and Al Qa’ida leaders took refuge in Pakistan after the US and Western military attacks that commenced after 9/11. Pakistan’s support for the Taliban and Al Qa’ida needs to be perceived in the context of jihadi rhetoric. Even during periods when the state has disowned Al Qa’ida and the jihadis, the continuing official pro-Kashmir stance and efforts to assert control over the affairs of Afghanistan has meant considerable support for radical extremism and Taliban factions, particularly within regional and local politics. In the meanwhile, the cadre of students, the so-called

33

34 35

RG Wirsing, The Baluchis and Pathans (Minority Rights Group, London, 1987); J Rehman, ‘Selfdetermination, state building and the Mohajirs: an international legal perspective of the role of the Indian Muslim refugees in the constitutional developments of Pakistan’ (1994) 3(2) Contemporary South Asia 111. See Constitutional (Second Amendment) Act 1974, Act XLIX 1974. See J Rehman, ‘Minority rights and the constitutional dilemmas of Pakistan’ (2001) 19(4) Netherlands Quarterly of Human Rights, 417. 389

Abdul Razak, Javaid Rehman, and Joshua Skoczylis

Pakistani Taliban, having graduated from Pakistani madrassas, indoctrinated with jihadi ideology, and armed with the experience of the Afghan Jihad returned to Pakistan (after 9/11) to proclaim an autonomous existence as Pakistani Taliban under the banner of the Tehrik-e-Taliban Pakistan. The Tehrik-e-Taliban Pakistan, officially proclaimed in 2007, seeks to enforce the Sharia and to revive global jihad against the non-believers (kafars). It views the democratically elected governments, the Pakistani military, and those complying with the orders of the Pakistani State as kafars. According to this view, the government must be overthrown through violent jihad and an Islamic Caliphate be established based on the Sharia. The failure of the peace talks in 2014 between the Tehrik-e-Taliban Pakistan and the Nawaz Sharif government reflects both the extreme ideological differences in the vision of Pakistani society as well as the weakness of the civilian government. With the collapse of the peace talks, the Pakistan military commenced an operation in North Waziristan in Pakistan during June 2014. The longer-term impacts of this operation upon efforts to ensure peace or to prevent further acts of terrorism remain uncertain at this stage. International linkages feature prominently in the Prevent strategy in so far as it exists in this unpromising environment. This is most evident with the UK connections with Pakistan, the ancestral home to 43 per cent of the British Muslims.36 Available statistics appear to implicate a disproportionate number of men from the British Pakistani community with terrorist activities in the UK. Thus, according to the research in the Prevent Review, between 2000 and 2010 nearly 25 per cent of the people convicted of Islamist terrorism had links to Pakistan, either as British nationals or with a Pakistani background.37 These figures, of course, do not take account of the 7 July 2005 suicide bombers who were killed in the attacks, nor the innumerable numbers about which Peter Clarke has forewarned of plotting terrorist activities.38 Three of the four suicide bombers in the 7 July 2005 attacks were British nationals of Pakistan origin. Evidence has been presented that the ringleaders, Mohamad Sidique Khan and Shahzad Tanweer, two of the suicide bombers, were radicalised and indoctrinated while in Pakistan.39 Shahzad Tanveer had been visiting a madrassa, during his stay in Pakistan, thereby re-igniting concerns about the role of these institutions in advancing extremism to both local and foreign students. In order to regulate and monitor the madrassas, the Foreign and Commonwealth Office increased its financial aid to Pakistan from £236m to £480m between 2006 and 2009.40 Notwithstanding collaborative counter-terrorism efforts between Pakistan and the UK, evidence has shown that nearly 75 per cent of the terror plots since 9/11 in the UK have had a direct or indirect connection with Pakistan.41

36

37 38 39

40 41

390

J Rehman, ‘Islam, “War on Terror” and the Future of Muslim Minorities in the United Kingdom: Dilemmas of Multi-Culturalism in the aftermath of the London Bombings’ (2007) 29 Human Rights Quarterly 831, 846. HM Government, Prevent Strategy (n 7) 19. A Cowell,‘Britain’s anti-terror chief offers somber view’ (NewYorkTimes, NewYork, 25 April 2007). MI5, ‘How the threat has evolved’ (2014). Available at: www.mi5.gov.uk/home/thethreats/terrorism/international-terrorism/how-the-threat-has-evolved.html accessed 21 October 2014. The Independent on Sunday (London, 19 November 2006) 46. G Hinsliff, ‘Gordon Brown: 75% of UK terror plots originate in Pakistan’ (The Guardian, London 14 December 2008). Available at: www.theguardian.com/world/2008/dec/14/mumbai-terrorattacks-india accessed 21 October 2014.

‘Prevent’ policies and laws: a comparative survey

On the whole and as a concluding observation, it would appear that Prevent strategies are not much in evidence outside these limited internationally driven initiatives. It would also appear that solutions to terrorism are envisaged at a macro-political level rather than being based on focused work with marginal groups or deviant individuals.

Delivering terrorism prevention Delivering Prevent in the UK Preventing violent extremism is a vital part of the CONTEST strategy; especially given the ongoing threat from home-grown terrorism. Although a national policy, coordinated by the central government, Prevent has been largely delivered by local authorities working in close partnerships with the OSCT, the Association of Chief Police Officers, local police forces, and other statutory, private, and volunteer organisations. However, as early as 2010, the Communities and Local Government Select Committee noted that ‘the current breath of focus of Prevent – from community work to crime prevention – sits uncomfortably within a counterterrorism strategy.’42 Although the Coalition Government made some significant changes to the Prevent policy in 2011, the multi-agency approach has not significantly changed. However, the OSCT has taken more control of which projects receive funding. With overall cuts to funding, and a significant shift towards early identification – surveillance in its broadest sense, the multiagency approach has expanded to include the National Health Service, schools, and universities, diluting the community-based approach that the strategy was founded on.43 Under these new arrangements tackling extremism in the sense of opposition to ‘British values’, now falls under the remit of DCLG’s integration strategy, which is separately funded from Prevent.44 For example, funding to organisations such as ‘Street’, a counter-radicalisation organisation, was cut after the Prevent Review in 2011. ‘Street’ reached out and assisted Black converts to Islam and Muslim gang members: ‘Ostensibly one of the Woolwich perpetrators were known to them… I strongly believe had their programme been operational the Woolwich incident could have been averted.’45 Overall, the Prevent budget has been severely cut, from £140 million in 2008/9 to £9.1 million in 2011/12. To complement this, the DCLG spent an additional £1.5 million on cohesion and integration, although it is unclear how much of this was spent on tackling extremism.46 The reduced level of funding has reshaped the nature of Prevent, which has shifted from tackling the ‘root causes’ to identifying individuals at risk of radicalisation and information-sharing about specific risks between relevant agencies.

42 43 44 45

46

Communities and Local Government Select Committee, Preventing Violent Extremism (HC 200910, 65) 3. HM Government, Prevent Strategy (n 7). Ibid., 35 S Lakhani,‘What makes young British Muslims want to go to Syria’ The Guardian (London, 24 June 2014). Available at www.theguardian.com/commentisfree/2014/jun/24/isis-british-muslimsreality-war-fight-extremism accessed 1 December 2014. HM Government, The United Kingdom’s Strategy For Countering International Terrorism (Cm 8123, London, 2009); P Bowers, Preventing Violent Extremism (SN05993, House of Commons Library, London 2013); DCLG, Annual Report And Accounts 2011-12 (HC 2001-12, 50). 391

Abdul Razak, Javaid Rehman, and Joshua Skoczylis

Delivered in predominately Muslim areas, Prevent now brings together the local authorities, the police, other statutory bodies, and private and voluntary organisations through the already established local Community Safety Partnerships. It is through this mechanism that information is shared, local needs determined, programmes delivered and assessed, and reshaped if necessary. A common criticism has been that there is a lack of focus and a failure to provide a clear picture at the national level regarding how Prevent funds are being spent. The Communities and Local Government Committee found that the evaluation of Prevent programmes in general had been poor.47 Other studies suggest that the success of the programmes was judged on personal observations and experience rather than being evidence based.48 In that light, a Senior Home Office official noted that Prevent had become a mere gesture demonstrating that the government had done something.49 Without the funding for rigorous and evidence-based evaluation the effectiveness of Project Channel and community-based programmes and interventions remains unknown. Considering the limited budget, it is unlikely that much money will be spent on rigorous evaluation in the near future. In a case study in the North-West of England, many local practitioners, including police officers, were uncomfortable about separating community cohesion from Prevent.50 This could be perceived as a way to ensure self-preservation by maintaining levels of funding for local community cohesion projects, which may otherwise have not been funded. Crawford suggests that front-line practitioners have the capacity to capture resources designed for crime prevention and channel them into community cohesion activities; this would suggest that the inverse of the criminalisation of social policy, the socialisation of criminal policy, could also occur.51 What is more surprising, however, is the support for the wider remit offered by police officers working on Prevent who appear to have realised the importance of community engagement and cohesion as a tool to prevent radicalisation: ‘Security is always delivered through consent, never through force… Sustaining this… over the long term will only be possible if the police secure active consent from the community.’52 The media and many academics see Prevent as ‘tainted’.53 Over the years the media has frequently portrayed Prevent as a surveillance programme sponsoring ‘extremist’ projects such as ‘Street’. British Muslim communities have been ‘demonised’ by the media and implicitly linked to terrorism framed in opposition to British values.54 There have been instances where Prevent funding was indeed used to spy on Muslim communities.55 The breadth of the use of covert surveillance under Prevent is unknown; however, research suggests that such methods were generally not part of most local Prevent programmes.56 Sir Norman Bettison, formerly the Chief

47 48 49 50 51 52 53

54 55 56 392

Communities and Local Government Select Committee, Preventing Violent Extremism (n 42). Innes and others (n 16). Skoczylis (n 25). Ibid. A Crawford, The Local Governance Of Crime: Appeals To Community And Partnerships (Oxford University Press, Oxford, 1997) R Briggs and others Bringing It Home: Community-Based Approach To Counter-Terrorism (Demos, London, 2006) 58. R Lambert and J Githens-Mazer, ‘Prevent is dead. What next?’ (The Guardian, London, 14 July 2010). Available at: www.guardian.co.uk/commentisfree/belief/2010/jul/14/prevent-counterradicalisation-terrorism-islam accessed 1 December 2014. C Allen,‘A review of the evidence relating to the representation of Muslims and Islam in the British media’ (University of Birmingham, Birmingham, 2012). Kundnani (n 17). Innes and others (n 16); Skoczylis (n 25).

‘Prevent’ policies and laws: a comparative survey

Constable of WestYorkshire, stated that Prevent has been about building ‘engagement and trusting relationships, so that we can have conversations about the risk and how to deal with it, but we also can have conversations… when there might have been a clumsy operation, that is being misunderstood within the community.’57 Rather, it is Prevent’s inability to create a safe space that is most linked to the negative political discourses around terrorism, Islam, and British Muslim communities. Prevent is regarded by some as a policy that peddles government values and does not oppose or challenge the status quo and government policy.58 Framing extremism in opposition to British values, in a policy that mainly targets Muslim communities, is not helpful. How this and the current debate around British values related to the Birmingham Trojan horse affair, an alleged plot by Islamic extremist to influence the running of twenty-one schools, will affect Muslim communities and Prevent will only be seen in the future.59 Although criticism about Prevent is valid to some extent, this negative debate has inhibited a discussion around the real policy concerns related to Prevent and how it can be used to prevent violent extremism, and how it can be delivered in the least intrusive way. Rather, the literature around Prevent generally suggests that Prevent unnecessarily focuses on Muslim communities and links it to the flawed discourse of ‘suspect communities’ calling for an end of Prevent.60 There is research that suggests that community perceptions of Prevent are more linked to its media image and that work carried out by the local police and local authorities under Prevent has had a positive effect, by improving the relationships between the police and Muslim communities and even increased trust in some areas of the country.61

Delivering terrorism prevention in Malaysia Malaysia relies on various legislation to support its preventive strategy of which the now repealed ISA was the most prominent. The ISA was a legacy of the British campaign to counter the communist insurgency between 1948 and1960. For decades, Malaysia routinely detained suspected terrorists without formal judicial proceedings. The ISA provided for detention without trial for sixty days of suspects who threatened national security and the period could extend for up to two years at the discretion of the Minister of Home Affairs. This preventive detention measure drew strong criticisms from the public and international community because as much as it was a counter-terrorism measure, it was also used to stifle legitimate political opposition and dissent.62

57 58 59

60

61 62

Skoczylis (n 25) 117. R Jackson, ‘The failed paradigm of Prevent’ (Soundings, 2011). Available at: http://soundings. mcb.org.uk/?p=35 accessed 30 May 2012. P Clarke,‘Reporting into the allegations concerning Birmingham Schools arising from the ‘Trojan Horse’ letters’ (HC, 2013-14 , 576); J Fowler, ‘Birmingham Trojan Horse Saga: Two Lessons For Local Government’ (The Guardian, London, 6 October 2014). Available at: www.theguardian.com/ local-government-network/2014/jun/10/birmingham-trojan-horse-saga-two-lessons-localgovernment accessed 1 December 2014. Kundnani (n 17); I Awan, ‘Paving the way for extremism: how preventing the symptoms does not cure the disease of terrorism’ (2011) 2 Journal of Terrorism Research 4; C Pantazis and S Pemberton, ‘From “Old”To The “New” Suspect Communities: Examining the impacts of recent UK CounterTerrorist Legislation’ (2009) 49 British Journal of Criminology 646. See further Chapter 27 (Greer) in this book. Innes and others (n 16); Skoczylis (n 25). T Lee, ‘Malaysia and the Internal Security Act: the insecurity of human rights after September 11’ (2002) Singapore Journal of Legal Studies 56; Human Rights Watch, Malaysia in the Name of Security: Counterterrorism and Human Rights Abuses Under Malaysia’s Internal Security Act (New York, 2004). 393

Abdul Razak, Javaid Rehman, and Joshua Skoczylis

In April 2012, the ISA was repealed. Three separate declarations of emergency were also repealed on 24 November 2011, which led to the expiration of the Emergency Ordinance in May 2012. In place of the ISA, the Security Offenses (Special Measures) Act (SOSMA) took effect on July 31 2013, along with amendments to the Penal Code, Criminal Procedure Code, and Evidence Act.63 The SOSMA gives the government the same capacity as the ISA to take preventive measures against individuals or groups suspected of terrorist activities or harbouring extremist ideologies. It provides for preventive detention for twenty-eight days without being charged. However, unlike the ISA, the SOSMA requires the detained suspect to be charged after twenty-eight days and places the burden of proof on the authority to present credible evidence against the detained suspect within a stipulated time period. The repeal of the ISA and its replacement by the SOSMA, along with several amendments to existing laws, was a positive development, moving Malaysia’s counter-terrorism towards a criminal prosecution-based system. However, there are differences between the preventive measures contained within this framework compared with those of the UK in the same field. While in the UK, preventive detention must be sanctioned by the court and is subject to rigorous judicial scrutiny and review, the ISA provided extensive powers to the Executive, which led to many instances of arbitrary arrest of not only terrorist suspects, but also anyone deemed to be a threat to national security or indeed a political threat.64 SOSMA shares, albeit to a lesser degree, similar attributes to its predecessor, which has led to public queries regarding the constitutionality of aspects of the legislation.65 Another important feature of Malaysia’s prevention strategy in combating the threat of terrorism is the Malaysian rehabilitation programme. It was first crafted during the Malayan Emergency and focused on winning the hearts and minds of Communist-influenced Chinese insurgents with the ultimate objectives of ensuring that they would not pose further threat to national security and to reintegrate them into society.66 The rehabilitation programme has since been applied to different state security threats, including the Communist insurgents and their alleged sympathisers, politicians, civil society activists, religious militants, and the so-called deviationist groups. However, despite its long history as an important preventive security strategy, very little is known about what constitutes the rehabilitation programmes, especially in relation to radical militants of recent times. Unlike Indonesia and Singapore, the Malaysian Government has not been transparent about their programmes, probably because of their limited significance to the overall national security provision. In more detail, the Royal Malaysian Police and the Department of Islamic Development (Jabatan Kemajuan Islam Malaysia [JAKIM]) operated the rehabilitation programme for terrorist suspects who were held under the ISA 1960 in Kamunting Prison.67 The programme involved

63 64 65

66 67

394

Dato Sri’ MohdNajib bin Tun Abdul Razak, ‘Speech’ (Prime Minister of Malaysia, 15 September 2011). Lee (n 62). ‘Maiden SOSMA case collapse highlights post-ISA learning curve’ (22 May 2013). Available at: www.malaysianbar.org.my/index2.php?option=com_content&do_pdf=1&id=36575 accessed 1 December 2014. KJ Handerson, ‘The Experiment at the Taiping Rehabilitation Camp’ (Rhodes House, Oxford, 1950) 2. For a brief explanation of Malaysia’s rehabilitation programme, see Ruhanas Harun, ‘Rising to the Challenges of Islamic Extremism and Militancy in Malaysia’ (2013) 2 SEARCCT Selection of Articles. Available at: www.searcct.gov.my/publications/our-publications accessed 1 December 2014.

‘Prevent’ policies and laws: a comparative survey

religious and social counselling and vocational training. It employed psychologists, religious scholars, police officers, and family members. The Malaysian model incorporates elements of ‘ideological dialogue’, which is central to any effort to de-radicalise militants. However, from the little information that is available, the issues discussed in the intensive programme are more tailored to defend the credibility of the regime in its Islamisation programmes instead of refuting the detainees’ radical ideology. The Government seems to be defensive, making all possible efforts to convince the detainees that Islam and the implementation of Sharia is high on the Government’s agenda. Would such a programme deliver an effective de-radicalisation exercise? The focus of a de-radicalisation exercise is to neutralise radical ideology and the performance of the Malaysian Government in its Islamisation policy is definitely not the reason for resorting to violence amongst the militants. The Malaysian programmes are equipped with a mechanism to evaluate and monitor. It is quite structured in the sense that the evaluation and the monitoring exercises are not done by JAKIM, the implementing agency, but instead by the police.68 This is to ensure that every component of the programmes is implemented in accordance with planned rehabilitation regime. It is also best that the police are given the mandate to determine whether the participants have undergone a successful rehabilitation programme or whether they still pose a threat to national security. There is no other agency in Malaysia that has the expertise and experience like the police in assessing any potential threat to the national security. The monitoring exercise is undertaken after the release of the detainees by JAKIM and includes a visit to the houses of the ex-detainees. JAKIM also sends publications to the exdetainees from time to time, as part of the effort to further engage with them. The programme also provides assistance to the family of the detainees, mainly to ensure that the family would not have to rely on the radical movement network for support. The wives of the detainees are also invited to join some programmes organised by JAKIM, which explain pertinent Islamic issues and educate them on why their husbands are under detention.69 While the government has portrayed the disengagement programme as highly successful, it lacks demonstrable metrics for its effectiveness. What seems obvious is that Malaysia has been able to use its coercive security apparatus in deterring the released detainees from resorting to militant activities. The disengagement exercise has been centred on coercive measures with deterrence as the ultimate objective. The detainees’ detention under the ISA denies them the right to a fair trial and access to counsel.70 Human rights abuses during detention are rampant and routinely reported by human rights movements.71 As argued by Abuza, ‘[p]eople are not necessarily convinced of the error of their ways, or are any less militant, but the State’s coercive powers are an effective deterrent’.72 The Malaysian

68

69 70 71

72

U Padil, ‘Terrorist Rehabilitation: Malaysia’s Experience’ (International Conference on Terrorist Rehabilitation, International Centre for Political Violence and Terrorism Research, Singapore, 24–26 February 2009). Ibid. N Fritz and M Flaherty, ‘Unjust Order: Malaysia’s Internal Security Act – Special Report’ (2003) 26 Fordham International Law Journal 1345. Suara Rakyat Malaysia (SUARAM),‘Malaysia Civil and Political Rights Report 2008’ (Petaling Jaya 2008). See also Human Rights Commission of Malaysia, ‘Report of the Public Inquiry into the Condition of Detention under the Internal Security Act 1960’ (SHM/ISA-INQUIRY/06/03, Kuala Lumpur 2003). Z Abuza, ‘The Rehabilitation of Jemaah Islamiyah Detainees in Southeast Asia – a preliminary assessment’ in T Bjorgo and J Horgan (eds), Leaving Terrorism Behind: Individual and Collective Disengagement (Routledge, Abingdon, 2008) 208. 395

Abdul Razak, Javaid Rehman, and Joshua Skoczylis

rehabilitation regime definitely needs strong repositioning to ensure compliance with acceptable human rights standards, transparency, and accountability. Until a major reform is made to ensure the process of rehabilitation is carried out with integrity, the success of the Malaysian rehabilitation regime is indeed a ‘myth’. There is also no availability of data that could indicate rates of recidivism. One Malaysian security official claimed that no incident of re-engagement with militant activities has been reported from among the released detainees.73 This claim could be valid because Malaysia is known to have a very good surveillance system. As the security official puts it, ‘the released detainees are always in the radar of the police’.74 The detainees and their families have also admitted that they have been warned and threatened with severe punishment should they reengage with militant activities.75 This strategy seems to have contributed to another dimension of ‘success’ that involves exporting the problem whereby Malaysian militants are found operating elsewhere in the region. As this programme was directed primarily at ISA detainees, it was unclear what will become of the programme in the wake of the ISA’s repeal.

Preventing terrorism in practice in Pakistan Religious education plays an important specific role in Prevent policies in the context of a religiously infused society. As noted from the historical background above, it is evident that to prevent the growth of terrorism and sectarianism, radical reforms are required. Although under the terms of the Societies Act 1860, all religious seminaries, the madrassas, were required to register, most have operated without registration. While madrassas have had a historic role in providing religious education in the Indian subcontinent, the political significance of these seminaries was highlighted when the students in these madrassas, the Taliban (with a literal meaning, student) took effective control of Afghanistan in 1996 and became prime allies of the Pakistani military establishment. After the 9/11 attacks, it transpired that many of the Taliban and Al Qa’ida leaders accused of committing international terrorist activities had received religious education and had forged bonds within the madrassas of Pakistan. Since that time substantial efforts have been made to reform the religious educational structures in Pakistan. The Pakistan Madrassa Education (Establishment and Affiliation of Model Dini Madaris) Board Ordinance was enacted in November 2001 to reform the curriculum through the introduction of secular and science subjects, and a review was conducted into the admission processes in order to prevent a sectarian bias amongst pupils of the schools or the teachers. The Deeni Madaaris (Voluntary Registration and Regulation) Ordinance 2002 prohibited the establishment of new madrassas without the permission of the local district authorities, and existing madrassas were to register with one of the five Religious Education Boards (wifaq). The Ordinance introduced a ban on the preaching of sectarian hatred and the promotion of extremism. It also aimed to control the enrolment of foreigners without a valid visa and ‘no-objection’ certificate from the Ministry of the Interior.

73

74 75 396

Interview with Malaysian Security Official No 1 (Kuala Lumpur, 27 December 2010) in A Ahmad, Terrorism and the Rule of Law: Rethinking the ‘ASEAN ways’ and Responses (PhD thesis, University of Leeds, 2012). Ibid. Abuza (n 72) 208.

‘Prevent’ policies and laws: a comparative survey

The schemes, primarily because of their non-enforceable character, have been ineffective. In the aftermath of the 7 July bombings, Pakistan’s military ruler General Musharraf decided to expel the (approximately) 1,400 foreign nationals studying in madrassas and not to issue any visas to foreigners wishing to study in the future.76 In August 2005, President Musharraf promulgated the Societies Registration (Amendment) Ordinance 2005, affecting the status of 11,882 madrassas. The salient features of the ordinance are: first, the introduction of a regime of compulsory registration with the government; second, a requirement for all madrassas to submit an annual report of their activities and performance; third, a requirement for all madrassas to ensure an audit of their financial accounts and to submit this account; and fourth, a prohibition of the teaching or publication of any literature that promotes sectarianism or religious hatred. The territorial jurisdiction of the ordinance was restricted to the federal capital Islamabad, but the four provincial governments followed suit in promulgating ordinances requiring the compulsory registration of madrassas or the madrassas would face compulsory closure. Next, the degrees (asnad) awarded by madrassas were undermined by the Pakistan’s Supreme Court in its judgment of 29 August 2005.77 The asnad awarded by the madrassas were held to be invalid, since the madrassas have no statutory powers or other affiliations to any recognised university or education board. The Court ordered Pakistan’s Election Commission not to recognise the degree that had been awarded by madrassas thereby disqualifying potential candidates for public office. Despite General Musharraf ’s attempts to modernise or at least control madrassas, they have remained the hotbed of anti-American and pro-Taliban and Al Qa’ida sentiments. State regulatory measures have been at best uncertain or at worst ‘a shambles’.78 In September 2009, the democratically elected federal government proposed a new educational policy, which aimed at establishing a Madrassa Regulatory Authority under the jurisdiction of the federal interior ministry. However, this scheme has yet again been rejected by the madrassas. Since October 2010, a further attempt has been made to integrate the madrassa curriculum with those of the mainstream educational institutions. However, with the eighteenth constitutional amendment (2010),79 the subject of Islamic education has been devolved to provincial jurisdiction, and consequently the various provinces have shown an inability to develop a coherent policy of accommodating the demands of madrassas on critical points such as institutional autonomy, syllabi, and recognition of awards.80 In an overwhelmingly religious socio-political environment, madrassas continue to retain significant political force. Pakistan’s religious political parties as well as the various religious and sectarian organisations retain a considerable constituency from the madrassas. These religious and sectarian organisations have an influential role to play in the social, economic, and political matrix. With a dedicated army of followers, these organisations have aligned with Pakistan’s political parties and the military establishment thereby manipulating the legal and administrative structures. The contributions of some of the religious organisations

76 77 78 79 80

BBC News, ‘Madrassa: foreigners must leave’ 29 July 2005. Available at: http://news.bbc.co.uk/ 1/hi/world/south_asia/4728643.stm accessed 22 September 2014. BBC News, ‘Madrassa: students face poll ban’. Available at: http://news.bbc.co.uk/1/hi/world/ south_asia/4196972.stm accessed 22 September 2014. International Crisis Group, Pakistan: Karachi’s Madrasas and Violent Extremism (Asia Report no.130, Brussels, 2007) i. Constitution (Eighteenth) Amendment Act 2010. See SMA Zaidi, Madrassa Education in Pakistan: Controversies, Challenges and Prospects (Centre for International and Strategic Analysis, Haslum, 2013) 24. 397

Abdul Razak, Javaid Rehman, and Joshua Skoczylis

towards terrorism and sectarian violence are well documented, and yet members of these organisations have also been active in promoting considerable social charitable work and providing humanitarian relief. Several sectarian organisations including the Lashker-e-jahangvi and lasker-e-taiba, although banned nationally and internationally, have dedicated wings committed not only to preaching Islam and proselytising, but also claiming considerable credit for participating in charitable and humanitarian causes. Proselytising and charitable work allows these organisations to retain public support, and also to receive significant finances (from abroad and from home) to conduct essential operational business, including sectarian and terrorist activities. Successive Pakistan governments have legislated to proscribe terrorist organisations and also to prevent terrorist financing and money laundering. Sections 11A and 11B of the Anti-Terrorism Act 1997, inserted by the Anti-Terrorism Amendment Ordinance 2001,81 sets out the criterion of an organisation deemed to be terrorist organisation and powers for the federal government to list it. Various other provisions of section 11 deal with financing of terrorism.82 More recently, Pakistan has adopted the Anti-Money Laundering Act 201083 whose primary purpose is the ‘[p]revention of money laundering, combating financing of terrorism and forfeiture of property derived from, or involved in money laundering or financing of terrorism and for matters connected therewith or incidental thereto’.84 Notwithstanding these substantial pieces of legislation, the state remains unable to neutralise the operations of the terrorist organisations or to prevent the flow of funds towards proscribed actors and agencies. The ongoing debacle with the Tehrik-e-Taliban Pakistan confirms the limitations of a weak government, prepared to eventually negotiate a deal with a terrorist organisation. Furthermore, it also remains the case that ‘[a]lthough the terrorist networks in Pakistan collect money from all the usual sources, the money collected for terrorist activities is rarely if ever linked to the country’s formal financial system’.85 The informal, unregulated techniques of transfer of funds thorough Hawala or Hundi systems make detention and prevention of terrorist financing extremely challenging.

Conclusion: Learning lessons from the past; the future of ‘Prevent’ policies Compared with Malaysia and Pakistan, the UK government’s effort to tackle violent extremism and radicalisation appears more formalised and is included in the comprehensive CONTEST strategy. However, Prevent’s image remains tainted and its work controversial. The separation of terrorism prevention and community cohesion has made Prevent more focused. However, the Integration Strategy needs to complement Prevent, and it appears that the work to tackle extremism has become limited. In terms of its increasingly important Channel Project component, little literature exists and it is uncertain whether lessons from abroad, such as Malaysia, have been taken into account. A comparison between Channel and its Malaysian counterpart may increase the evidence base and improve the outcomes of both programmes. Overall, however, unless the UK government can improve Prevent’s image and communicate its

81 82 83 84 85

398

No 39 of 2001. See especially sections 11E(1)(b), 11E(1A)(b), 11E(2), and 11EE(2)(e). No 7 of 2010. Ibid. Preamble to the Anti-Money Laundering Act 2010. Research Society of International Law, Pakistan, The Case for Change: A Review of Pakistan’s AntiTerrorism Act of 1997 (RSIL, Lahore, 2013) 182.

‘Prevent’ policies and laws: a comparative survey

purpose clearly, particularly to Muslim communities, it will be difficult to envision improved relationships between the authorities and British Muslim communities. The question that remains is whether Prevent is about more than just demonstrating to the public that something is being done. If it is, policy makers in the UK need to engage with Muslim communities and create a programme that is based on evidence not political ideologies. The efforts made by the Malaysian government in the prevention of terrorism have resulted in some successes, but they are not without shortcomings. The most obvious deficits are the lack of a sustainable, long-term counter-terrorism strategy and a coherent strategic framework. What is needed now is a more robust and comprehensive national counter-terrorism strategy that focuses on a stronger and enhanced inter-agency networks and international cooperation. In realising this aim, Malaysia must evolve beyond the traditional preventive strategy, such as preventive detention and rehabilitation programme, into a total approach to the problem. This is crucial because the impact of terrorism will be felt in many areas, affecting Malaysia’s defence, internal security, social, economic, and foreign policies. Failure to formulate a collective and multi-faceted response will results in partial solutions. However, a comprehensive preventive strategy requires more than just a new blueprint. Other measures must be undertaken. First, Malaysia needs to build critical expertise and competencies to confront the threat of terrorism. This is a strategy that cannot be compromised because counter-terrorism is a highly complex and sophisticated security challenge. Second, existing agencies must be strengthened through various capacity-building initiatives, bigger budget allocations, and effective governance. Strengthening existing agencies could also be achieved through robust inter-agency cooperation and networking. This is actually the main tenet of Malaysia’s national homeland security. A robust national security network is crucial because terrorism is a problem that cuts across the entire national security, economic, and social systems. Strong inter-agency coordination will harness the strength and expertise of each agency and maximise the use of limited national resources. Third, Malaysia’s terrorism-prevention strategy must be a national one, a strategy that brings together the entire nation – the Government, businesses, civil society, and ordinary citizens. Counter-terrorism is no longer just the state’s responsibility. It is a collective responsibility of each and every citizen of the country. And finally, the fight against terrorism cannot be won without international cooperation. Malaysia needs to enhance international cooperation in the area of counter-terrorism with likeminded countries from the region and beyond and the relevant international organisations. In the context of Pakistan, Prevent policies remain problematic and largely ineffective. What started as state-sponsored efforts to religiously indoctrinate ethnically, racially, and culturally fragmented communities has now resulted in radicalising the entire Pakistani society. Such radicalisation and intolerance is evident in all cultural, educational, and social aspects with considerable draconian legislation such as the Anti-terrorism Act 1997 and the anti-blasphemy laws used to intimidate political opponents or vulnerable religious minorities. Notwithstanding claims by the administration, the current uncertain levels of support or cooperation with extremist, sectarian organisation, including the Tehrik-e-Taliban Pakistan, makes the prospect of peace and the eradication of terrorist activities improbable. The Tehrik-e-Taliban Pakistan and its associated factions are not willing to give up the core yet amorphous demands such as the enforcement of the Sharia in Pakistan. Furthermore, the regional powers have a sustained interest in promoting a sectarian divide in Pakistan. In the early part of 2014, Saudi Arabia provided Pakistan a £1.5 billion aid package. Although such financial support has halted economic crises, critics claim that in return the Pakistan government has agreed to support the military and sectarian agenda of the Saudi regime, hardly a blow for moderation.

399

26 The myth of the ‘securitised Muslim community’ The social impact of post-9/11 counter-terrorist law and policy in the west Steven Greer 1

Introduction The academic literature broadly concerned with the ‘social impact’ of post-9/11 terrorism and counter-terrorism in the west is dominated by ‘the securitisation thesis’, at least eight different senses of which are typically employed by exponents in an interchangeable, confused, and muddled manner.2 It is said that: (i) Muslims as a whole feel under suspicion from society merely because they are Muslim; (ii) Muslims as a whole have fallen under suspicion from society for the same reason; (iii) Islam has fallen under suspicion from society; (iv) Muslims as a whole feel under suspicion from the state solely on account of being Muslim; (v) Muslims as a whole have fallen under suspicion from the state merely because they are Muslim; (vi) Islam has fallen under suspicion from the state; (vii) Muslims as a whole are subject to special security and criminal justice measures purely because they are Muslim; and (viii) Islam is subject to special security and criminal justice measures not applicable to other faiths or ideologies. However, much more careful distinctions need to be drawn between these claims, not only for 1

2

400

The author thanks Clair Gammage, Margherita Pieraccini, and Devyani Prabhat for comments on a previous draft, and officials at the Department for Communities and Local Government and Bristol City Council’s Community Cohesion Team for generously agreeing to be interviewed. The usual disclaimers apply. The principal contributions include: C Pantazis and S Pemberton, ‘From the “old” to the “new” suspect community: Examining the impacts of recent UK counter-terrorist legislation’ (2009) 49 British Journal of Criminology 646; J Cesari, ‘Securitization of Islam in Europe’ in J Cesari (ed.), Muslims in the West after 9/11 (Routledge, Abingdon, 2010); HC Nickels, L Thomas, MJ Hickman, and S Silvestri, A Comparative Study of the Representations of “Suspect” Communities in Multi-Ethnic Britain and of the Impact on Irish Communities and Muslim Communities—Mapping Newspaper (Content Institute for the Study of European Transformations working Paper 13, London Metropolitan University, London 2010) https://metranet.londonmet.ac.uk/fms/MRSite/Research/iset/Working%20Paper%20 Series/WP13%20.pdf accessed 10 April 2015; C Pantazis and S Pemberton, ‘Restating the case for the “suspect community”’ (2011) 51 British Journal of Criminology 1054; MJ Hickman, L Thomas, S

The myth of the ‘securitised Muslim community’

analytical reasons, but also because there will otherwise be little hope of solving the social and political problems alleged. The first four propositions are undoubtedly true to some extent. But these are not genuine instances of ‘securitisation’ because the term can only credibly refer to objective, deliberate, state-managed processes not reducible to social processes over which the state may have little or no control, or to the negative subjective experiences of those who may or may not have been affected by relevant law and public policy. The phenomena to which the first three propositions refer may even be attributable to factors other than terrorism or counterterrorism, and more illuminating and appropriate labels, including ‘Islamophobia’ and ‘anti-Muslim prejudice’ both perceived and real, are readily available.3 Using a common template – ‘core assumptions and theses’, ‘key concepts’, ‘methodological, evidential, analytical, and logical issues’, ‘normative framework’, and ‘policy implications’ – this chapter seeks to demonstrate that, in the genuine fifth to eighth senses, the securitisation thesis is a myth, particularly in the UK with which most of the literature is concerned. In the third section an attempt will also be made to propose a more credible alternative.

The securitisation thesis Core assumptions and theses Unpacking the eight propositions above reveals the core characteristics of the securitisation thesis. First, the kind of terrorism associated with Al Qa’ida and others, such as the events of 9/11 and 7/7, (hereafter ‘jihadi’ terrorism), is seen, largely or entirely, as the result of social exclusion, inequality, discrimination, and poverty suffered by Muslims in the West, compounded by the invasions of Afghanistan and Iraq.4 It is, therefore, regarded as essentially reactive, its significance greatly officially exaggerated, with the real blame lying with Western states and

3

4

Silvestri, and H Nickels, ‘Suspect Communities’? Counter-terrorism policy, the press, and the impact on Irish and Muslim communities in Britain, a report for policy makers and the general public – July 2011 (London Metropolitan University, London, 2011); I Awan, ‘“I am a Muslim not an extremist”: How the Prevent strategy has constructed a “suspect” community’ (2012) 6 Politics and Policy 1158; S Croft, Securitizing Islam (Cambridge University Press, Cambridge, 2012); MJ Hickman, L Thomas, H Nickels, and S Silvestri, ‘Social cohesion and the notion of ‘suspect communities’: a study of the experiences and impacts of being ‘suspect’ for Irish communities and Muslim communities in Britain’ (2012) 5 Critical Studies on Terrorism 89; M Breen-Smyth, ‘Theorising the “suspect community”: counterterrorism, security practices and the public imagination’ (2014) 7 Critical Studies onTerrorism 1; Y Alam and C Husband, ‘Islamophobia, community cohesion and counter-terrorism policies in Britain’ (2013) 43 Patterns of Prejudice 235; C Pantazis and S Pemberton,‘Resisting the advance of the security state: The impact of frameworks of resistance on the UK’s securitisation agenda’ (2013) International Journal of Law, Crime and Justice 1; I Ajala, ‘Muslims in France and Great Britain: Issues of securitisation, identities and loyalties post 9/11’ (2014) 34 Journal of Minority Muslim Affairs 123; A Kundnani, The Muslims Are Coming! Islamophobia, Extremism and the Domestic War on Terror (Verso, London, 2014); S Greer, ‘Comment and debate – Reply to Marie Breen-Smyth’, Theorising the ‘suspect community’: counterterrorism, security practices and the public imagination (2014) 7 Critical Studies on Terrorism 223. For recent contributions to the huge literature on Islamophobia and anti-Muslim prejudice see, e.g. B Klug, ‘Islamophobia: A concept comes of age’ (2012) 12 Ethnicities 665; JL Esposito and I Kalin (eds), Islamophobia:The Challenge of Pluralism in the 21st Century (Oxford University Press, Oxford, 2011). Kundnani (n 2) 8, 10–2, 16, 34–5, 275, 287; C Husband and Y Alam, Social Cohesion and Counterterrorism: A Policy Contradiction? (Policy Press, Bristol, 2011) 99–103; Cesari (n 2) 19–20; Pantazis and Pemberton, ‘From the “old” to the “new” suspect community’ (n 2) 661. 401

Steven Greer

societies rather than with Muslims themselves.5 It follows, second, that any ‘Islamic’ dimension to such terrorism is a matter of official designation and ‘social construction’ rather than an integral component of the ideology of those who perpetrate it.6 Third, Muslims as a whole are said to have been stigmatised, demonised, vilified, reviled, negatively stereotyped, and scapegoated by official discourses as ‘the enemy within’, becoming a criminalised and/or securitised/disciplined community under pervasive and systematic official suspicion.7 The same fate has also allegedly befallen Islam itself.8 Fourth, it is alleged that this has all had entirely negative implications for national security, social and community cohesion and integration, national identity, democratic participation, and minority rights in the west.9 Finally, an undercurrent in this type of analysis is the implicit invocation of ‘Critical’, ‘Marxist’, or ‘neoMarxist’ assumptions that attribute social order and cohesion in late-modern Western liberal democracies, not to genuine ‘organic’ processes, but to coercion and hegemony inflicted and exercised by elites. The specific problems with this view are more fully explored in the following sections. But the fundamental flaw is that it is an astonishingly crude, Manichean, one-dimensional, static, unidirectional, essentialist, reductionist, and misleading thesis. It depicts Muslims (the good guys) on one side and the state and everyone else (the bad guys) on the other, with their relationship mediated by, and only by, the suspicion, securitisation, criminalisation, and so on of the former by the latter, when the reality is massively more complex, fluid, interactive, multi-faceted, and uneven. For example, while there can be little doubt that the invasions of Afghanistan and Iraq have contributed to the disillusionment of some Western Muslims with their own states and governments, they each followed, rather than preceded, 9/11. Similar jihadi terrorist incidents have also occurred both pre- and post-9/11 in a host of other non-Western countries including Nigeria, Kenya, India, and China. By ignoring the facts that Muslims in the West have always been demarcated from each other along national, ethnic, linguistic, and sectarian lines,10 and that jihadi terrorism has precipitated at least as much of a crisis within Muslim communities and nations around the world as it has between Muslims and others, the securitisation perspective wrongly regards these differences as state constructions.11 The alleged distinctions in official Western policy between ‘good’ and ‘bad’ Muslims – with de-radicalisation allegedly 5 6

7

8

9

10 11 402

Kundnani (n 2) 10–3, 19–25, 147, 151, 287; Awan (n 2) 1160. Kundnani (n 2) 10–2, 16–7, 40, 45, 55–88, 226–9, 279; Pantazis and Pemberton, ‘Resisting the advance of the security state’ (n 2) 2; Awan (n 2) 1168, 1170; Hickman and others ‘Social cohesion and the notion of ‘suspect communities’ (n 2) 103; Pantazis and Pemberton,‘From the “old” to the “new” suspect community’ (n 2) 646, 650. Kundandi (n 2) 8, 13–9, 63, 78, 88, 107, 270, 273; Breen-Smyth (n 2) 14; Alam and Husband (n 2); Awan (n 2) 1161; Hickman and others ‘Social cohesion and the notion of ‘suspect communities’ and ‘Suspect Communities’? (n 2); Husband and Alam (n 4); Cesari (n 2); ESRC ‘“Suspect Communities” Project’ (n 2) 4; Nickels and others (n 2); Pantazis and Pemberton, ‘From the “old” to the “new” suspect community’ (n 2) 646; T O’Toole and others ‘Governing through Prevent? regulation and Contested Practice in State-Muslim engagement’ (2015) Sociology (early online access: doi: 10.1177/0038038514564437). Croft (n 2) 200–61, also uses the term ‘securitisation’ to refer to the construction of a perceived security threat by non-state actors. See also Kundnani (n 2) 64; Cesari (n 2); Pantazis and Pemberton, ‘From the “old” to the “new” suspect community’ (n 2) 651. Kundnani (n 2) 9, 11, 13, 14–5, 33, 39; Pantazis and Pemberton, ‘Resisting the advance of the security state’ (n 2) 11–4; Breen-Smyth (n 2) 1–2, 15; Croft (n 2), 6, 16, 159–99; Awan (n 2) 1158; Cesari (n 2) 9; Pantazis and Pemberton, ‘From the “old” to the “new” suspect community’ (n 2) 646. See, e.g., I Bowen, Medina in Birmingham, Najaf in Brent: Inside British Islam (Hurst, London, 2014). Pantazis and Pemberton, ‘Resisting the advance of the security state’ (n 2) 5.

The myth of the ‘securitised Muslim community’

illegitimately promoting the former over the latter – and between ‘weak’ and ‘strong’ forms of securitisation also undermine the claim that Muslims as a whole are under official suspicion merely because they are Muslim.12 If this were true, it would be difficult to see in what sense the ‘good’ Muslims (the vast majority) have been ‘securitised’ or fallen under official suspicion. The extent to which jihadi terrorism is essentially ‘political’ rather than ‘religious’ has been much debated.13 But it cannot be denied that those who resort to it unfailingly invoke a particular political interpretation of Islam as a justification. Nor can it be claimed with certainty, although this kind of terrorism has caused very few casualties in the West since 9/11 and while the threat it currently poses is a matter of debate,14 that it has lost the capacity to inflict devastating damage upon people, property, and public institutions, both in the West and elsewhere. If the securitisation model were true, it would also be difficult to see why law enforcement against white working class Islamophobic violence in the UK would not also ‘securitise’ the white British working class, or why, to take another example, banning the Muslim Brotherhood in Egypt does not securitise Egyptian Muslims. The Egyptian ban will, of course, only affect some, rather than all, Muslims. But this is precisely what critics of the securitisation model argue is also the case with contemporary counter-terrorism in the West.15

Key concepts Exponents of the securitisation perspective fail to engage critically with their own imprecise, Manichean, and over-inclusive concepts,16 and other kinds of conceptual confusion, in addition to the eight indiscriminately used senses of ‘securitisation’ distinguished in the introduction, also lie at the heart of the thesis. There is, for example, little sense in the literature that ‘official suspicion’ comes in a wide variety of forms and degrees and can lead to very diverse consequences.17 It is also difficult to see how, short of an official ban, a faith or ideology can be ‘securitised’ since security measures otherwise only apply to its expression and, therefore, only to adherents and not to the faith or ideology itself. Exponents of the securitisation thesis accuse the state of negatively stereotyping Muslims as an undifferentiated bloc, but also typically stereotype the state itself as monolithically hostile to the ‘Muslim community’, which in turn is stereotyped as vulnerable, passive, powerless, harmless, blameless, and victimised.18 ‘Official discourses’ are subjected to relentless negative and tendentious scrutiny, while those of the

12

13

14

15 16 17 18

Kundnani (n 2) 70, 173, 202–8; P antazis and Pemberton, ‘Resisting the advance of the security state’ (n 2) 14; Hickman and others ‘Suspect Communities’? (n 2) 3; Husband and Alam (n 4) 179; Pantazis and Pemberton, ‘From the “old” to the “new” suspect community’ (n 2) 651. See, e.g., the studies cited in Home Office, Understanding vulnerability and resilience in individuals to the influence of Al Qa’ida violent extremism: A Rapid Evidence Assessment to inform policy and practice in preventing violent extremism (Home Office Occasional Paper 98, London, 2011), para 2.2.5. According to Sir Richard Dearlove, former Head of MI6, current events in the Middle East diminish rather than increase the terrorist threat to the West: ‘Threat from Isis exaggerated and distorted, says ex-MI6 chief ’, The Guardian (London, 8 July 2014). Senior EU officials believe that such attacks are inevitable, I Traynor, ‘Fear that terror attacks in Europe are inevitable as jihadis return’, The Guardian (London, 26 September 2014) 12. S Greer,‘Anti-terrorist laws and the United Kingdom’s “suspect Muslim community”: A Reply to Pantazis and Pemberton’ (2010) 50 British Journal of Criminology 1171–90. See also P Hillyard, Suspect Community: People’s Experience of the Prevention of Terrorism Acts in Britain (Pluto Press with Liberty, London, 1993). Greer, ‘Anti-terrorist laws and the United Kingdom’s “suspect Muslim community”’ (n 15) 1179–80. Alam and Husband, (n 2), 250; Croft (n 2) 183–99. 403

Steven Greer

‘securitised’ minorities are not scrutinised, much less critically appraised, at all.19 There is also no sense of the differences between the goals and cultures of different branches of the national state – between, for example, the UK’s Department for Communities and Local Government (DCLG) and MI5 – or between the state at national and local level.

Methodological, evidential, analytical, and logical factors Methodologically, the securitisation thesis is typically social science in reverse, with the ‘securitisation of Muslims/Islam’ presumed before any attempt is made to demonstrate it.20 There are also huge problems with what is taken to be appropriate evidence. Data collection tends to be highly selective and distorted. According to a Home Office review of the relevant literature in 2010 no existing study of the perception of the impact of counter-terrorist law was methodologically strong.21 Regrettably nothing of substance has changed since. Where interviews have been conducted, it is either unclear how samples were constructed or they tend to have been local, small, largely self-selecting, and highly unrepresentative of the relevant population – those affected by counter-terrorist law and policy and not just minorities adversely affected.22 Those who subscribe to the securitisation thesis also typically show little interest in systematically collecting empirical data from the central executive, the only branch of the state capable of ‘securitising’ Muslims in the strict sense. Intentions are, instead, attributed to the national state by inference from the local dimension, or from negative experiences of those deemed to be at the receiving end of counter-terrorism law and policy. In fact, the available evidence on these and other issues reveals a highly complex, uneven, fluid picture, with significant geographical and other variations.23 The position is no better when we turn to the analytical and interpretive dimensions. The securitisation model is dominated by sweeping generalisations and self-contradiction, with conflicting data simply ignored and other data systematically misinterpreted to support preconceived conclusions. The style of analysis tends to be either ‘ambivalently sceptical’, with key elements in what is taken to be official policy or discourses expressed in quotation marks – for

19 20

21

22

23

404

See, e.g. Kundnani (n 2); Croft (n 2); Pantazis and Pemberton,‘From the “old” to the “new” suspect community’ (n 2). This is particularly true of the contributions from Breen-Smith (n 2), Hickman and others, ‘A Comparative Study, ‘Suspect Communities’, and ‘Social cohesion and the notion of ‘suspect communities’’ (n 2), and Pantazis and Pemberton,‘From the “old” to the “new” suspect community’ (n 2) 646, all of which are predicated upon uncritical endorsement of Hillyard’s assumption – Hillyard (n 16) – that the Prevention of Terrorism Acts turned the Irish in Britain into a ‘suspect community’, which each assume is now true of Muslims, and which they then set out to ‘prove’. Defence Science and Technology Laboratory, Office of Security and Counter Terrorism, What Perceptions Do the UK Public Have Concerning the Impact of Counter-terrorism Legislation Implemented since 2000? Home Office Occasional Paper 88 (Home Office, London, 2010) 4. Kundnani (n 2) 25; Breen-Smyth (n 2); Hickman and others ‘Social cohesion and the notion of “suspect communities”’ (n 2) 93–4 and ‘Suspect Communities?’ (n 2) 2; T Choudhury and H Fenwick, ‘The impact of counter-terrorism measures on Muslim communities’ (Equality and Human Rights Commission, London, 2011); Husband and Alam (n 4) 9–11; Cesari (n 2) 10.This is also true of Hillyard (n 16). See Greer, ‘Anti-terrorist laws and the United Kingdom’s “suspect Muslim community”’ (n 15) and S Greer, Unpublished interview with an official at the Department for Communities and Local Government, London, 17 April 2014 and Unpublished interview with members of Bristol City Council’s Equalities and Cohesion Team (Bristol, 18 June 2014).

The myth of the ‘securitised Muslim community’

example, ‘new terrorist threat’, ‘Islamic fanaticism’, ‘Islamist terrorism’24 – but no alternative nomenclature is provided. Or it is ‘negatively descriptive’ with the repeated use of pejorative adjectives infusing an undertone of complaint and denunciation into what might otherwise have been neutral accounts, yet without the specification of clear normative standards or viable policy alternatives.25 There is also a failure to distinguish the effects of gender and age upon alleged securitisation. Since, for example, old Muslim women and children are, prima facie, much less likely to fall under official suspicion than young Muslim men, the ‘Muslim community’ itself cannot be uniformly and equally securitised as the thesis maintains.26 Nor is there any evidence that counter-terrorism promotes Islamophobia in society at large as some securitisation theorists claim.27 Clear correlations have, however, been detected between acts of terrorism, such as the murder of Lee Rigby in 2013, and significant increases in Islamophobic incidents.28 The securitisation thesis is also riddled with non sequiturs, for example: ‘because some Muslims feel they and/or all Muslims are under unjustified official suspicion, Muslims as a whole are under unjustified official suspicion’;29 ‘because counter-terrorist law impacts negatively upon some Muslims, all Muslims have become officially suspect simply because they are Muslim’;30 or ‘because Muslims perceive some aspects of counter-terrorist law to be unfair, unjust and discriminatory, such laws are unfair, unjust and discriminatory’.31 In its review of the relevant literature a Defence Science and Technology Laboratory (DSTL) study judged in 2010 that ‘evidence of negative perceptions’ of counter-terrorist law amongst Muslims was, in fact, ‘weak’.32 Nor do those who subscribe to the securitisation perspective consider the possibility that at least some Islamophobia in Western society may be a reaction – albeit an inappropriate, regrettable, and unjustified one – to the stoning of adulterers, the execution of alleged apostates and those deemed to have insulted Islam, the brutal punishment of rape victims, and the systematic abduction and selling into slavery of thousands of women and children, all expressly justified in some non-Western countries by reference to Islam. Those who endorse the

24 25 26 27 28

29

30 31 32

See, e.g. Pantazis and Pemberton,‘From the “old” to the “new” suspect community’ and ‘Resisting the advance of the security state’ (n 2). See, e.g. Alam and Husband (n 2) and Husband and Alam (n 4). Pantazis and Pemberton, ‘From the “old” to the “new” suspect community’ (n 2) 650–1. Ibid 660-1; Alam and Husband (n 2) 247; Croft (n 2) 6; Awan (n 2) 1170; Cesari (n 2) 21. See, e.g., ‘UK anti-Muslim hate crime soars, police figures show – Forces report a surge in the number of reported incidents after the murder of soldier Lee Rigby by Islamic extremists in May’, The Guardian (London, 27 December 2013); V Dodd and M Williams, ‘Britain – Muslims fear backlash after Haines beheading’, The Guardian (London, 15 September 2014). Pantazis and Pemberton, ‘Resisting the advance of the security state’ (n 2) 12. While there is evidence that some Muslims feel under official suspicion it is not clear how deep or widespread this is, see, e.g. A Blick, T Choudhury, and S Weir, The Rules of the Game: Terrorism, Community and Human Rights: A Report by Democratic Audit, Human Rights Centre, University of Essex for the Joseph RowntreeTrust (Joseph Rowntree Trust, York, 2007); A Lynch and N McGarrity,‘Counter-Terrorism Laws: How neutral laws create fear and anxiety in Australia’s Muslim communities’ (2008) 33 Alternative Law Journal 225–8; Choudhury and Fenwick (n 21). Pantazis and Pemberton, ‘From the “old” to the “new” suspect community’ (n 2). Defence Science and Technology Laboratory (n 21) 2. Ibid 4. 405

Steven Greer

securitisation thesis also typically ignore the fact, widely acknowledged by other scholars,33 that significant attempts have been made by Western states to combat discrimination against Muslims; for example, the criminalisation of religious hatred by Part V of the UK’s Anti-Terrorism, Crime and Security Act 2001 and by the Racial and Religious Hatred Act 2006.

Normative framework The securitisation model also suffers from several significant problems on the normative front. The framework employed to judge the appropriateness, acceptability, or unacceptability of contemporary counter-terrorist law and policy is little more than a shallow and naïve version of ‘left idealism’, implicitly invoking shadowy conceptions of, particularly, human rights, equality, integration, diversity, and multiculturalism without exploring their implications.34 Nor is there any recognition that these values can sometimes conflict, much less any attempt to suggest how such friction might be resolved.35 Some of the literature is, for example, ambivalent about whether human rights constitute real or merely cosmetic constraints on the exercise of public power and is characterised, in particular, by a marked lack of awareness that the ‘human rights’ framework permits the kind of exceptions to human rights norms, which are so readily condemned as obvious and self-evident violations.36 While secret surveillance is, for example, an interference with the right to respect for private life, it only becomes a breach when unlawful or unnecessary in a democratic society as a disproportionate response to, in this context, threats to national security.37 There is, moreover, no human, or any other kind, of right to avoid falling under official suspicion or to avoid being regarded as a security risk, although various human rights might be engaged depending upon the processes and results. Pantazis and Pemberton’s assumption that the alleged problem of the securitised Muslim community could be addressed if all human rights were regarded as absolute,38 is, for example, completely untenable because most rights in international human rights law (the only credible global standard) are subject to a range of express restrictions and limitations, including the safeguarding of national security and the prevention of crime.

33

34 35 36 37 38 406

Cesari (n 2) 24–5; Greer, ‘Anti-terrorist laws and the United Kingdom’s “suspect Muslim community”’ (n 15) 1176, 1185. See also, House of Commons Home Affairs Committee, Terrorism and Community Relations (HC 2004-05, 165); HA Hellyer, ‘Engaging British Muslim communities in counter-terrorism strategies’ (2008) 153 RUSI Journal 8–13; B Spalek and R Lambert, ‘Muslim communities, counter-terrorism and counter-radicalisation: A critically reflective approach to engagement’ (2008) 36 International Journal of Law, Crime and Justice 257; J Klausen,‘British counterterrorism after 7/7: adapting community policing to the fights against domestic terrorism’ (2009) 35 Journal of Ethnic and Migration Studies 403; S Saggar,‘Boomerangs and slingshots: radical islamism and counter-terrorism strategy’ (2009) 35 Journal of Ethnic and Migration Studies 381; B Spalek, ‘Community policing, trust, and Muslim communities in relation to “new terrorism” ’ (2010) 38 Politics and Policy 789; T O’Toole and others, Taking Part: Muslim Participation in Contemporary Governance (Centre for the Study of Ethnicity and Citizenship, University of Bristol, Bristol, 2013); E Bleich, ‘State responses to ‘Muslim’ violence: A comparison of six West European countries’ (2009) 35 Journal of Ethnic and Migration Studies 361. Kundnani (n 2) 11–5, 285–9; Husband and Alam (n 4); Hickman and others, ‘Suspect Communities?’ (n 2) 6, 24, 27. See, e.g., Alam and Husband (n 2) 245; Husband and Alam (n 4) 1–5. Pantazis and Pemberton, ‘Resisting the advance of the security state’ (n 2) 8; Cesari (n 2) 21, 23. See, e.g. R Rainey, E Wicks and C Ovey, Jacobs, White and Ovey:The European Convention on Human Rights (6th ed, Oxford University Press, Oxford, 2014) 370–4. Pantazis and Pemberton, ‘Resisting the advance of the security state’ (n 2) 8.

The myth of the ‘securitised Muslim community’

Policy implications There are also huge problems with three interconnected policy implications of the securitisation model. First, certain features of post-9/11 UK counter-terrorist strategy – typically the ‘Prevent’ element in CONTEST, stop and search powers, surveillance, control orders, proscription of organisations, and the criminalisation of the encouragement of terrorism – are said above all to have securitised Muslims or to have ‘constructed’ them as a community under official suspicion.39 Alam and Husband, for example, claim that ‘the logics of surveillance’ have ‘resulted in a breakdown of trust between large sections of the British Muslim population and the agents of the state’, yet fail to provide any supporting evidence.40 Indeed, the Snowden and Assange revelations suggest that there may be a more serious problem with untargeted, blanket surveillance of the entire populations of the US and UK than with surveillance directed only, or largely, upon Muslims or any other minority.41 The securitisation perspective also fails to grasp that there is a huge difference between, on the one hand, counter-terrorism, which assumes all Muslims are equally likely to be involved in terrorism, and, on the other, intelligence-led antijihadi counter-terrorism, which targets only some on the inescapable assumption that only a tiny minority are likely to be involved in it. As far as the UK is concerned, there is absolutely no evidence of the former but plenty for the latter. ‘Prevent’, for example, operates primarily amongst Muslim communities because this is where the threat of home-grown jihadi terrorism originates. It is naïve to think that any effective strategy of prevention against this kind of terrorism could be based on any other assumption or that such a focus is discriminatory or a violation of human rights on this ground alone. As the securitisation thesis maintains, stop and search powers in the UK have been used disproportionately against Blacks and Asians. But since not all Blacks and Asians are Muslim, and not all Muslims are Blacks and Asians, this provides no support for the view that such powers have turned Muslims into a community under official suspicion.42 In any case, the government has accepted that these difficulties need to be addressed, and some reforms have already been introduced.43 Similarly the offence, under section 1 of the Terrorism Act 2006, of indirectly inciting terrorism, is neutral both with regard to who is inciting and the kind of terrorism being incited. But when the principal threat stems from jihadi terrorism, as in the UK it currently does, the offence is more likely to be committed in relation to that kind of terrorism than any other. Arguably, the line between freedom of expression and incitement to violence may not have been drawn sufficiently finely here. But this is quite a different criticism from that made by the securitisation thesis.44 Second, if Muslims have become a securitised community as a result of specific elements of counter-terrorist strategy, this status will presumably be lost when relevant laws and policies have been adequately reformed. Because, however, exponents of the securitisation perspective

39

40 41 42 43

44

See Chapters 22 (Lennon) and 26 (Razak, Rehman and Skolczylis) in this book; Kundnani (n 2) 13–15, 139, 181–2, 207–31, 281–2; Awan (n 2); Pantazis and Pemberton, ‘From the “old” to the “new” suspect community’ (n 2) 646, 652, 654–60. Alam and Husband (n 2) 235. See P Iyer, ‘We’re all terror suspects now’, The Guardian (London, 29 August 2011). Pantazis and Pemberton, ‘From the “old” to the “new” suspect community’ (n 2) 654–9. Pantazis and Pemberton,‘Resisting the advance of the security state’ (n 2) 2, 3, 8, 10; Home Office, Review of the Operation of Schedule 7: A Public Consultation (Home Office, London, 2013); Chapter 22 (Lennon) in this book. E Parker, ‘Implementation of the UK Terrorism Act 2006 – The relationship between counterterrorism law, free speech, and the Muslim community in the United Kingdom versus the United States’ (2007) 21 Emory International Law Review 711–57. 407

Steven Greer

tend to prefer the politics of denunciation to careful critical engagement with the law and policy detail, it is impossible to discern what kind of modifications they would regard as achieving this objective.45 Third, the most fundamental policy flaw with the securitisation perspective is that it fails to consider precisely what kind of effective anti-jihadi counter-terrorist strategy would avoid targeting some Muslims and would, therefore, escape condemnation for having turned them all into a securitised community.46 Indeed, by claiming that Muslims have been securitised while offering no viable solution, the securitisation thesis itself risks damaging community relations, and undermining national security, the very things it claims to be warning against.47 Should we be surprised, for example, if having been repeatedly told they are a securitised community – with no more credible solution on offer other than strident opposition to de-radicalisation,48 a plea for greater public and official toleration of the expression of ‘radical’ interpretations of Islam,49 demands that ‘security policies do not isolate and threaten communities and do not undermine their trust in state institutions and their sense of belonging’,50 and ‘resistance to the securitised state’51 – Muslims in the West were to become less, rather than more, interested in cooperating with public institutions as a result?

Towards more reflexive conceptions of the social impact of counterterrorist law and policy By implicitly invoking a conflict model of state and society, the securitisation perspective relies upon a tired and discredited theoretical tradition long eclipsed by more persuasive alternatives. A range of current sociological theories – including, for example, those focused on systems,52 fields,53 and communicative rationality,54 plus liquid55 and reflexive56 conceptions of modernity – recognise that, in contemporary Western states and societies, power, wealth, benefits, burdens, authority, opportunity, meaning, identity, belonging, attachment, alienation, and so on, are constituted and distributed by fluid and reflexive interactions between a multiplicity of sites,

45 46 47 48

49 50 51

52 53 54 55 56

408

Kundnani (n 2); Pantazis and Pemberton, ‘From the “old” to the “new” suspect community’ (n 2) but less so Pantazis and Pemberton, ‘Resisting the advance of the security state’ (n 2). As only a few commentators recognise e.g., Cesari (n 2), 21; Saggar (n 33). See, e.g., Kundnani (n 2) 9, 11, 13–5, 33, 39; Croft (n 2) 6, 16, 159–99; Cesari (n 2) 9; Pantazis and Pemberton, ‘From the “old” to the “new” suspect community’ (n 2) 646. Kundnani (n 2) 12, 13, 16, 113–4, 115–82, 230–1; Pantazis and Pemberton appear to be both against and in favour of de-radicalisation, Pantazis and Pemberton, ‘Resisting the advance of the security state’ (n 2) 4, 13–4. Kundnani (n 2) 149, 168, 182, 185, 199, 284–5, 289. Hickman and others, ‘Suspect Communities’? (n 2) 5. Bizarrely, according to Pantazis and Pemberton, ‘resistance to the securitised state’ includes both constitutional checks and balances on executive and legislative power and violence on the streets, Pantazis and Pemberton, ‘Resisting the advance of the security state’ (n 2) 5, 6, 13. See also Kundnani (n 2) 254; Breen-Smyth (n 2) 13; Hickman and others ‘Suspect Communities’? (n 2) 4. See, e.g., N Luhman, Social Systems (Stanford University Press, Stanford, 1995). See, e.g. P Bordieu, ‘The force of law: toward a sociology of the juridical field’ (1987) 38 Hastings Law Journal 805. See J Habermas, The Theory of Communicative Action Vols 1 and 2 (Heineman, London, 1984 and 1987). Z Bauman, Liquid Modernity (Polity Press, Cambridge, 2000). U Beck, A Giddens, and S Lash, Reflexive Modernization: Politics,Tradition and Aesthetics in the Modern Social Order (Polity, Cambridge, 1994).

The myth of the ‘securitised Muslim community’

social units, processes, and discourses, each with varying degrees of power, coherence, and rigidity.57 There are, of course, many significant differences between these approaches. But, for the purposes of this chapter, their common implications will be referred to as ‘reflexive social impact theory’. This perspective does not deny that, in counter-terrorist and other contexts, friction, conflict, controversy, abuses of power, security panics, and violations of human rights can and occur, not least because the systems that produce relevant laws and policies are not always in control of how they are received by other social, legal, and political units or subsystems, including religious minorities. But this perspective does not regard these characteristics as nearly so institutionalised, structural, defining, or irremediable as the securitisation model does. Rather, where disequilibrium arises, reflexive social impact theory tends to see late-modern liberal democratic societies as capable of resolving it ‘reflexively’, that is to say through constructive and inclusive engagement, negotiation, and compromise, though not necessarily instantly or in a manner that pleases everyone all the time.58

Core assumptions and theses The central theses of the reflexive social impact perspective are, therefore, that, in Western liberal democracies, terrorism, social injustice (real and imagined), foreign policy, and counterterrorist law and policy, potentially threaten domestic social cohesion, integration, trust, respect, and so on both horizontally and vertically, in different ways and to different degrees. But there are no grounds for believing that Islam or Muslims as a whole have been securitised as a result. Instead, because all relevant elements are in flux, the relationship between the state and Muslims in the west is multi-dimensional and complex, with outcomes fluid, indeterminate, and amenable to negotiation and compromise. While some exponents of the securitisation thesis acknowledge the value of this approach, regrettably they fail to appreciate that doing so undermines the securitisation model itself.59

Key concepts At the foundation of the reflexive approach lie several lines of conceptual inquiry. A distinction can, for example, be drawn between the effects of counter-terrorist law and policy upon, on the one hand,‘law, legal processes, and public institutions’ – including upon parties to counterterrorist legal proceedings plus the people and groups closely linked to them – and, on the other, their ‘social’ impact upon people and groups not closely linked to such proceedings and upon non-legal social systems, processes, institutions, and relationships of all kinds, including social order, cohesion, integration, minorities, culture, religion, tradition, gender, ideologies, discourses, ideals, ideas, systems of meaning, identity, belonging, media representations, and so on. For example, as far as the first dimension is concerned, a relevant and telling fact, difficult to reconcile with the securitisation thesis, is that ‘every successful prosecution of terrorismrelated offences in Australia since 2001 has only been made possible through the voluntary cooperation of members of the Muslim community.’60 The two categories are not, however, 57 58

59 60

For a useful introduction to contemporary sociological theory see J Scott, Sociological Theory: Contemporary Debates (2nd edn, Edward Elgar, Cheltenham, 2012). S Pickering, J McCulloch, and D Wright-Neville, ‘Counter-terrorism policing: towards social cohesion’ (2008) 50 Crime, Law and Social Change 91; S Pickering, J McCulloch, and D WrightNeville, Counter-Terrorism Policing: Community Cohesion and Security (Springer, New York, 2008). See, e.g., Pantazis and Pemberton, ‘Resisting the advance of the security state’ (n 2) 12, 14. Pickering and others, Counter-Terrorism Policing (n 58) 125. 409

Steven Greer

rigid or hermetically sealed. For example ‘politics’ – including how ‘terrorism’ and ‘counterterrorism’ are officially conceived, and debates about how the latter is and should be implemented – arguably straddles both. Indeed, a key characteristic of the reflexive models is their recognition of the fact that contingency, indeterminacy, permeability, reflexivity, and fluidity apply, to various degrees at all levels. Another line of conceptual inquiry involves seeking greater clarification of key concepts and also greater precision about what counts as evidence. Since the terms ‘official suspicion’ and ‘securitisation’ have already been considered,61 others will be used here for illustrative purposes. The term ‘social’ or ‘community cohesion’ – the sense in which communities effectively ‘stick together’ – tends, for example, to apply to those at the ‘horizontal’, grass-roots level and may also suggest that integration may have been secured without the constituent parts losing what makes them distinctive. ‘Social integration’, on the other hand, which may subtly imply a loss of distinctiveness, can apply ‘horizontally’ between communities themselves, and ‘vertically’ between communities and public authorities including national ones.62 While greatly concerned with community cohesion and integration – and since 2011 more with the latter than the former – local and central government in the UK tend to refrain from attempting to define these terms in the abstract. Instead they prefer to describe the attributes of ‘cohesive’ or ‘integrated’ communities as those that have a common vision and sense of belonging, where diversity is appreciated and positively valued, where there are similar life opportunities for all irrespective of difference, and where strong and positive relationships exist between people from different backgrounds in all public contexts especially the workplace, schools, and neighbourhoods.63 Extending to include the social effects of counter-terrorist law and policy on all dimensions of social life beyond the narrower spheres of law and state themselves, the reflexive social impact perspective also offers better prospects than the securitisation model for recognising, particularly where significant official discretion is available, the problematic relationships between cause and effect, direct, indirect, intended, and unintended consequences, positive and negative results, and perceived and ‘objective’ outcomes.

Methodological, evidential, analytical, and logical issues Reflexive approaches also seek to observe basic methodological axioms of social-scientific research more faithfully than securitisation models. These include using the most appropriate methods to collect data, wherever possible employing more than one research method, awareness of the risk of systematically compromising the reliability of results as a consequence of problems with data collection, and where data have been reliably obtained, avoiding drawing conclusions other than those which the evidence fully supports, particularly merely to fit a preconceived agenda. While evidence of levels of social and community cohesion and integration may be intangible and elusive, reflexive perspectives make it possible to distinguish 61 62 63

410

See also, e.g., Greer, ‘Anti-terrorist laws and the United Kingdom’s “suspect Muslim community”’ (n 15) 1177–80. For one of the few attempts to distinguish these terms in the context of the counter-terrorism debate see Husband and Alam (n 4) 20. Greer, ‘Anti-terrorist laws and the United Kingdom’s “suspect Muslim community”’ (n 23). See also A Lewicki, T O’Toole, and T Madood, Building the Bridge: Muslim Community Engagement in Bristol (Centre for the Study of Ethnicity and Citizenship, University of Bristol, Bristol 2014); Husband and Alam (n 4) provide a useful account of the history of the promotion of social cohesion as official UK policy.

The myth of the ‘securitised Muslim community’

‘positive indicators’, such as formal and informal cross-community dialogue and contact, including community festivals, active inter-faith groups, and inclusive civic participation, as well as ‘negative indicators’, such as low levels of such things as violence, anti-social behaviour, prejudiced conduct, hate crime, and also the absence of relatively impermeable forms of segregation. Low levels of social and community cohesion and integration might, by contrast, be indicated by the opposites, for example, the absence of active inter-faith groups, high levels of hate crime, and ghettoisation. Sources of data might include such things as crime rates and types (locally and nationally), evidence from opinion surveys, election results, and views expressed by local and national formal and informal associations and organisations. One of the aims of this chapter is to begin to redress the failure by exponents of the securitisation thesis to obtain relevant information directly from officialdom itself.64 Needless to say, merely collecting and presenting such information should not be taken as uncritically endorsing it. The DCLG monitors and promotes community cohesion and integration in the UK. But it does not seek to ‘measure’ it, on the grounds that the identification of explicit targets tends to encourage delivery agencies to direct their activities towards achieving them rather than to improving overall performance.65 Instead, the DCLG judges social integration qualitatively and informally according to the collection of information from local government and ‘proxies for integration’ such as views expressed in opinion polls conducted by reputable polling agencies. The DCLG also seeks to facilitate the ‘bottom-up’ implementation of broad national policy objectives set by government by responding to issues brought to its attention by local authorities, local representatives and others at the communal level, including, for example, providing funds for about thirty projects. The DCLG claims to encounter little hostility or resistance from local communities and regards itself as one of the main conduits for the flow of information from local to central levels. On the grounds that a vast range of faith positions interface with issues such as ethnicity, race, clan, and country of origin, it does not regard Muslims as a single community in Britain,66 and, therefore, accepts that authentic national representatives for British Muslims are impossible to find. The DCLG also maintains that, despite some mutual misunderstanding and friction, particularly in some localities, relations between Muslims and non-Muslims are generally good in the UK. However, relations between Muslims and the state in general, are said to be more variable and to depend upon three main factors: geography (for example, Muslims in Birmingham may be less positive about officialdom than those in other places), acclimatisation (newly-arrived immigrants tend to be more positive than the UK population in general but gradually pick up background British cynicism about public institutions as time progresses), and current affairs. While the DCLG contributes to the formation of counter-terrorist policy, is it not primarily responsible for monitoring impact upon communities (a matter for the Home Office), nor is it involved in risk assessment, implementation, or the targeting of particular localities. However, it fully accepts that many Muslims nevertheless feel under official suspicion because of the inescapable focus of de-radicalisation initiatives upon jihadi terrorism.67 This perception is said to have been compounded by the first incarnation of ‘Prevent’ from 2009 to 2011, which was

64

65 66 67

Kundnani claims that, in his conducting his study, ‘160 interviews were carried out with activists, campaigners, religious leaders, law enforcement officials, policy makers, government advisers, and young people’ (Kundnani (n 2) 25). However, it is not clear how many were in each category, nor does the information from official sources figure systematically or prominently in the book itself. Greer (n 23).The information in this paragraph and the next derives largely from this source. See also Bowen (n 10). See also House of Commons Home Affairs Committee (n 33) 3–4 and 64. 411

Steven Greer

less strategically targeted than the current focus on twenty-eight areas based on Home Office risk assessments, with significant funds directed to Birmingham, Manchester, and to East and West London. The DCLG accepts that acts of terrorism, foreign affairs, and counter-terrorism can adversely affect community relations, and that counter-terrorism can have unintended counter-productive consequences. But it also maintains that, in the post-9/11 environment, counter-terrorist strategy and perceptions of it are difficult to separate, and the sense some Muslims have of being under official suspicion is difficult to avoid. Bristol City Council’s annual Quality of Life Survey,68 unparalleled in any other local authority, offers a uniquely objective indicator of community cohesion in the city. On the basis of this and other information, the Council’s community cohesion team maintains that relations between Muslims and other communities are generally good, although there is some organised far-right resistance around such proposals as planning permission for mosques.69 The team maintains that Muslims in Bristol do not universally regard the state as hostile to Muslim interests, with opinion instead spanning a wide spectrum. There is also much greater concern about Islamophobia generated in society by the media than by, or in, officialdom. In addition to ‘Prevent’, which attracts very little interest from Muslims or others, Bristol City Council also has about a dozen of its own minority-orientated programmes, ranging from graffiti walls for young Asians to a Strategic Partnership Against Hate Crime.70 While the community cohesion team accepts that Muslims may feel under official suspicion as a result of counter-terrorist law and policy, it denies that they have, as a matter of objective fact, been securitised or turned into a community under official suspicion.71

Normative framework The UK and the US, where the securitisation thesis is most strongly articulated, each share common constitutional values embodying democracy, human/constitutional rights, the rule of law, and a formal commitment to tackling discrimination against minorities, albeit with some significant differences in national institutionalisation and implementation. According to the DCLG, the UK government also has a broad commitment to social integration in a ‘cosmopolitan’ environment, in other words, one in which social and communal diversity are celebrated, although, in the past few years, there has been an official retreat from the policy of ‘state multiculturalism’ understood as the state-sponsored promotion of difference.72 The main normative advantage which the reflexive social impact approach has over the securitisation perspective is that it emphasises that, in the West, values are not merely elements in a ruling class ideology, but are found in both shared and contested normative systems and sub-systems that interface, overlap, and sometimes collide with each other. It follows that the interpretation and application of any normative system also typically involves yet other systems and sub-systems including formal canons of reasoning and professional cultures, particularly

68 69 70 71 72

412

Available at: www.bristol.gov.uk/page/council-and-democracy/quality-life-bristol accessed 15 February 2015. Greer, Unpublished interviews (n 23). See also ‘Yusra is a star pupil, princess of the family. So why has she seemingly flown to Syria?’ The Guardian (London, 4 October 2014). Greer (n 23). See also Lewicki and others (n 63). Greer, Unpublished interviews (n 23). Ibid. See also Prime Minister David Cameron’s speech in Munich, 5 February 2011. Available at: www.newstatesman.com/blogs/the-staggers/2011/02/terrorism-islam-ideology accessed 7 February 2015.

The myth of the ‘securitised Muslim community’

those of judges, lawyers, religious leaders, and cultural and intellectual commentators, which together create further levels of fluidity and indeterminacy.

Policy implications The UK’s Terrorism Act 2000 consolidated decades of counter-terrorism legislation relating mostly to the ‘Troubles’ in Northern Ireland. Several subsequent statutes have since been passed, typically in the aftermath of an actual or averted terrorist atrocity. But not a single provision of the UK’s counter-terrorist legislation is expressly targeted upon any particular type of terrorism or social group. A criticism more credible than those stemming from the securitisation thesis, and also made in the Northern Irish context, is rather that the often indecent haste with which such legislation tends to have been passed may have precluded broader consultation and more careful reflection on specifics. According to the government, counterterrorist law and policy are implemented by reference to risk assessments carried out primarily by the Home Office, the police, and the intelligence services.73 It maintains – and there is no reliable conflicting evidence – that the state and law in the UK are not inherently, structurally or institutionally Islamophobic. Regardless of political complexion, post-9/11 UK governments have also strenuously, consistently, and repeatedly affirmed that, while they regard violent, and potentially violent, anti-Western interpretations of Islam as a security threat, they do not regard the Islamic faith itself as a problem.74 While the UK government is also concerned about other challenges from, for example, militant Sikhism and the indigenous far right, it is in no doubt that the principal threat to national security currently stems from violent Islamism, potentially boosted by the deteriorating twin civil wars in Syria and Iraq and the rise of Islamic State.75 More jihadi groups than any other kind of terrorist movement have, therefore, been proscribed and placed on relevant sanctions lists.76 There may be room for debate about whether any particular association ought to be affected in this manner. But it is difficult to see how such proscription and sanctioning securitises Muslims as a whole.77 The central policy challenges raised by the social impact of counter-terrorist strategy in the West concern the effective and ethical management of ‘double risk’: on the one hand, protecting society by dealing effectively with the terrorist threat whatever the ideology, without, on the other, exposing it to the adverse effects of counter-terrorist law and policy to a greater extent than is necessary and is capable of being justified by reference to widely shared normative standards.78 These are also matters of interpretation, reflexivity, fluidity, and negotiation involving particularly the attempt to steer a middle course between several equally untenable assumptions including the following: ‘no interpretation of Islam presents any security threat to Western democracies’ and ‘Islam itself presents an inherent threat to Western national

73 74

75 76

77 78

Greer, Unpublished interviews (n 23). See, for example, the speech by Home Secretary, Teresa May, to the 2014 Conservative Party conference: ‘the hateful ideology of the extremists has nothing to do with Islam and is a threat to all communities as its advocates seek to take Britain to separation, segregation and sectarianism’ The Guardian (London, 1 October 2014) 6. But see n 14. See: www.gov.uk/government/uploads/system/uploads/attachment_data/file/400902/Proscription20150123.pdf; www.gov.uk/government/publications/financial-sanctions-consolidated-list-oftargets accessed 10 February 2015. Greer, ‘Anti-terrorist laws and the United Kingdom’s “suspect Muslim community”’ (n 15) 1175. See, e.g., C Gearty, ‘Rethinking civil liberties in a counterterrorist world’ [2007] European Human Rights Law Review 111, 113. 413

Steven Greer

security’; ‘all Muslims are and should be under official suspicion and surveillance at all times’ and ‘no Muslim is or should ever be under official suspicion or surveillance at any time’; ‘all Muslims are actual or potential jihadi terrorists’ and ‘the Islamic faith is irrelevant to jihadi terrorism’; ‘jihadi terrorism is the only kind of ideological violence the UK needs to tackle’ and ‘jihadi terrorism does not need to be tackled by the UK at all’. Particularly high-profile public priorities should include addressing and minimising the sense of official victimisation on the part of some/many/all Muslims, even though this is not the ‘objective’ reality. Enhancing consultation, communication, cooperation, negotiation at all levels including and especially between the police and communities are also required,79 as are encouraging – including through official programmes of de-radicalisation – interpretations of all faiths and belief systems that accept core values such as democracy, human rights, the rule of law, and social diversity, whilst discouraging those which do not. Islamophobia and every other kind of social prejudice must also be effectively tackled. By contrast with the securitisation model, reflexive perspectives much more readily accept that the social effects of counter-terrorist law and policy can be effectively managed through contingent and dynamic interactions between a wide variety of systems, sub-systems, units, and sub-units of social organisation, which typically, though not invariably, produce the kinds of negotiated, and sometimes uneasy, unstable, and evolving compromises, which characterise functionally integrated and cohesive late-modern liberal democratic societies.

Conclusion In its broadest senses, the ‘securitised Muslim community’ thesis is simply an abuse of language, incoherently lumping together a range of quite different claims under a wholly inappropriate and misleadingly paradigm. In its stricter and narrower senses, it is a myth that has not become more credible merely by repetition. It dominates the current academic and wider debates about the social impact of post-9/11 counter-terrorist law and policy in the West for two apparent reasons. First, it seems to confirm that the sense some, or even many, Muslims have of being under official suspicion, corresponds with the objective, universal reality. Second,‘securitisation of the Muslim community’ is precisely what, in any case, the deeper street-wise conflict assumptions, which underpin this perspective, would have predicted. However, scratch the surface, and four particular difficulties stand out. First, instead of sharp critical engagement with core assumptions, concepts, theses, and compelling critiques,80 confusion, muddle, and unreflective, taken-for-granted ‘group-think’ are found. There is, in particular, a chronic failure to distinguish securitisation in the strict sense, as a manifestation of the state, from, on the one hand, anti-Muslim and anti-Islamic prejudice in society at large, and, on the other, from the perception of some/many Muslims that they are under suspicion from state and society merely because they are Muslim whether or not this is objectively the case. Second, even in the strict sense, the securitisation thesis presents an astonishingly crude, Manichean, one-dimensional, static, uni-directional, essentialist, reductionist, self-contradictory, and misleading thesis. There

79

80

414

See, e.g., Spalek (n 33); Klausen (n 33); Saggar (n 33); Hellyer (n 33); Spalek and Lambert (n 33); R Briggs, C Fieschi, and H Lownsbrough, Bringing it home: Community-based approaches to counterterrorism (Demos, London, 2006); House of Commons Home Affairs Committee (n 33) Summary. For example, the questions which the ‘officially suspect Muslim community’ thesis needs to answer in order to be taken seriously, have yet to be addressed, Greer, ‘Anti-terrorist laws and the United Kingdom’s “suspect Muslim community”’ (n 15) 1185–8.

The myth of the ‘securitised Muslim community’

is, third, no credible evidence to support it and a great deal against it. Even a cursory, openminded, review of relevant data, including, for example, credible insights from the DCLG and local government community cohesion teams – indicates that the reality is massively more complex, fluid, multi-faceted, and uneven. Finally, exponents of the securitisation perspective consistently fail to address the two central policy questions it raises: what kind of laws and policies are now required to ‘de-securitise the Muslim community’ in Western states and, given that any serious law enforcement initiative against jihadi terrorism must necessarily focus disproportionately upon some Muslims, since only Muslims (and very few at that) are likely to be involved in it, what kind of effective counter-terrorist measures would not turn Muslims into a securitised community? There is neither the space nor the need here to explore in great depth precisely which of the various deeper theoretical paradigms would provide the best support for the reflexive social impact perspective contemplated here. The main point is merely to show that there are other alternatives which, compared with the securitisation model, offer greater conceptual and normative clarity, apply genuine social scientific research methods, draw only those conclusions that are capable of being supported by appropriate evidence, are more committed to the formal canons of reasoned argument, and make more explicit and thorough attempts to link legal and sociological insights with credible policy implications. Further debate will be required to flesh out the details.

415

27 Countering terrorism via the internet Maura Conway and Clive Walker

Introduction Terrorist and extremist movements have long employed every available mass communications technology. Examples range from the Irish Republican press in the nineteenth century,1 Marighela’s advice to his comrades in 1969 to use photocopiers to reproduce pamphlets and manifestos,2 and Hizbollah’s establishment of its Al-Manar television station in the early 1990s,3 through to the so-called Islamic State’s ‘slickly’ produced contemporary digital content.4 For many years, scholars interested in the relationship between terrorism and media focused on the role of news media, particularly newspapers,5 with terrorism often portrayed as involving the intentional manipulation of journalists. Terrestrial and satellite television has also directly impacted on terrorism,6 with many terrorism spectaculars, including 9/11, appearing to be specifically choreographed for television. The performative and propagandistic nature of terrorist acts is central to many of the wide variety of available definitions of terrorism. According to Schmid and De Graaf: Terrorism cannot be understood only in terms of violence. It has to be understood primarily in terms of propaganda. Violence and propaganda have much in common. Violence 1

2 3 4

5 6

416

See R v John Mitchel (1848) 6 StTr (NS) 599; R v Charles Gavan Duffy (1848) 2 StTr (NS) 795; Martin v R (1848) 3 Cox CC 318; R v Grey (1865) 10 Cox CC 184; R v Sullivan and Pigott (1868) 11 Cox CC 44. C Marighella, Mini Manual of the Urban Guerrilla (Abraham Guillen, Montreal, 2002) 30. See B Saul and D Joyce, International Approaches to the Regulation of al-Manar Television and Terrorism Related Content (ACMA, Canberra, 2010). See HJ Ingram, ‘Three traits of the Islamic State’s information warfare’ 159 (6) RUSI Journal 4; J Klausen, ‘Tweeting the jihad: Social media networks of western foreign fighters in Syria and Iraq’ (2015) 38 Studies in Conflict & Terrorism 1. See M Conway, ‘Introduction: Terrorism and contemporary mediascapes – reanimating research on media and terrorism’ (2012) 5 Critical Studies on Terrorism 3. AP Schmid and J De Graaf, Violence as Communication: Insurgent Terrorism and the Western News Media (Sage, London, 1982) 16; G Chaliand, Terrorism: From Popular Struggle to Media Spectacle (Saqi Books, London, 1985) 13–4; BH Hoffman, Inside Terrorism (Columbia University Press, New York, 1998) 136–7; SL Carruthers, The Media at War (Macmillan, Basingstoke, 2000) 168.

Countering terrorism via the internet

aims at behaviour modification by coercion. Propaganda aims at the same through persuasion. Terrorism is a combination of the two.7 If the intention of terrorism is to induce terror, then it follows that the ultimate targets are the audience rather than direct victims.8 Terrorism has, therefore, often been portrayed as a strategy of ‘armed propaganda’, calculated to generate maximum response amongst target audiences with the purpose of pressurising political leaders to accede to terrorists’ demands.9 Consequently, it is relatively unsurprising that governments have responded with robust legal restraints. Amongst the most prominent restrictions were those introduced in the Republic of Ireland (1976–1994) and the UK (1988–1994) arising from the Northern Ireland conflict and banning the broadcasting of Loyalist and Republican paramilitaries.10 The advent of the internet means that terrorists are no longer wholly reliant on the mass media to act as carriers and even intermediaries, because it affords otherwise unattainable prominence and meaning to their violence.11 The internet now presents actors, whether mass movements or lone actors, with increased opportunities to globally propagate their own interpretations and messages.12 A variety of other functions can be served by terrorist use of the internet, including information-gathering, planning, and even the commission of attacks usually through hacking and denial of service rather than the more spectacular catastrophes, such as aircraft falling from the sky through sabotaged air traffic control systems, which are often elaborated upon in media but have not materialised.13 In 1998, approximately half of the (then) 30 groups designated as ‘Foreign Terrorist Organisations’ (FTOs) under the US Antiterrorism and Effective Death Penalty Act of 1996 operated websites, including the Lebanese Hizbollah, the Sri Lankan Tamil Tigers, and others.14 These early websites fulfilled largely a ‘broadcast’ function. Their content was tightly controlled by the terrorist organisations, and opportunities for interaction were negligible. By the next decade,

7 8 9 10

11

12 13

14

Schmid and De Graaf (n 6) 14. See also B de Graaf, Evaluating Counterterrorism Performance (Routledge, Abingdon, 2011). Schmid and De Graaf (n 6) 15. M Stohl, ‘Demystifying the mystery of international terrorism’ in CW Kegley (ed.), International Terrorism: Characteristics; Causes; Controls (St Martin’s, New York, 1990) 93. See C Banwell, ‘The courts’ treatment of the broadcasting bans in Britain and the Republic of Ireland’ (1995) 16 Journal of Media Law & Practice 21; S Kingston, ‘Terrorism, the media, and the Northern Ireland conflict’ (1995) 18 Studies in Conflict & Terrorism 203; J Horgan, ‘Journalists and censorship: A case history of the NUJ in Ireland and the broadcasting ban 1971-94’ (2002) 3 Journalism Studies 377. See Carruthers (n 6) 170. These media roles sometimes resulted in threats of prosecution either for withholding information or for ‘apology’ of terrorism: C Walker, Terrorism and the Law (Oxford University Press, Oxford, 2011) ch 8. See G Weimann, New Terrorism and New Media (Wilson Center,Washington DC, 2014). See S Gordon and R Ford, ‘Cyberterrorism?’ (2002) 21 Computers & Security 636; G Weimann, ‘Cyberterrorism: The sum of all fears?’ (2005) 28 Studies in Conflict & Terrorism 129; PMS Sundaram and K Jaishankar, ‘Cyberterrorism’ in F Schmalleger and M Pittaro (eds), Crimes of the Internet (Prentice Hall, Englewood Cliffs, New Jersey, 2008). For Hizbollah’s internet presence, see M Conway, ‘Cybercortical Warfare: Hizbollah’s Internet Strategy’ in S Oates, D Owen, and R Gibson (eds), The Internet and Politics: Citizens, Voters and Activists (Routledge, London, 2005); an analysis of the LTTE’s websites is contained in S Tekwani, ‘The Tamil Diaspora, Tamil Militancy, and the Internet’ in KC Ho, R Kluver, and KCCYang (eds), Asia.Com: Asia Encounters the Internet (Routledge Curzon, London, 2003). Comparative analysis is to be found in M Conway,‘Terrorist web sites’ in P Seib (ed.), Media and Conflict in the Twenty-First Century (Palgrave Macmillan, New York, 2005). 417

Maura Conway and Clive Walker

online forums had become a popular format, especially amongst violent jihadis, and allowed for much greater levels of interactivity.15 Many forums remain active today, but jihadis and their online fans — ‘jihobbyists’16 — increasingly are having greater recourse to mainstream social media platforms. Islamic State and their online supporters have proved themselves to be prolific producers and disseminators of digital content.17 Islamic State does not have a single official website; instead ‘official’ Islamic State online content emanates from several Islamic State-affiliated content production entities or so-called ‘media departments’ (such as al-Furqan Media, al-Hayat Media Center) and is distributed via jihadi forums, but increasingly also via the major social media platforms and other content-hosting sites. In July 2014, the group released the first issue of its Dabiq magazine, similar in style to Al Qa’ida in the Arabian Peninsula’s Inspire.18 The ‘slick’ and ‘glossy’ nature of Islamic State’s online content and its resultant potential attractiveness to, and resonance with, discontented ‘digital natives’ (young people who have grown up with the internet) has become a source of official apprehension.19 However, the relationship between consumption of extremist online content, such as that produced by Islamic State, and the adoption of extremist ideology or of recruitment to terrorism remains unproved.20 From the producer perspective, this impact is of increasing importance.21 A particular alleged outcome that has received utmost attention is the role of online jihadi content influencing young people to travel to Syria as ‘foreign fighters’ and ‘jihadi brides’, which gives rise to trepidation about their role in the conflict zone and even more so regarding their capacity for future terrorism upon their return home.22 The remainder of this chapter is concerned with describing and analysing the responses to the foregoing extremist uses of the internet. Much of the following is therefore concerned with what is called ‘content control’: efforts on the part of stakeholders to regulate what sort of material is available on the internet, including the removal of ‘objectionable’ materials currently accessible and the erection of barriers to the uploading of such materials in the future.

15

16

17 18 19 20

21

22 418

See K Damphouse, ‘The dark side of the web’ in F Schmalleger and M Pittaro (eds), Crimes of the Internet (Prentice Hall, Englewood Cliffs, New Jersey, 2008); AY Zelin, The State of the Global Jihad Online (New America Foundation,Washington DC, 2012). J Brachman, Global Jihadism: Theory and Practice (Routledge, London, 2009) 19. For Irish Republican sites, see R Frennett and MLR Smith, ‘IRA 2.0’ (2012) 24 Terrorism & Political Violence 375. For right-wing groups, see German Federal Office for the Protection of the Constitution, Right-wing Extremists and their Internet Presence (Cologne, 2013) See n 4. See AF Lemieux and others ‘Inspire Magazine’ (2014) 26 Terrorism & Political Violence 354. See, for example, EU Counter-Terrorism Coordinator in consultation with the Commission services and the EEAS, Foreign Fighters and returnees (16002/14, Brussels 2014) 2–3. See Home Affairs Committee, Roots of violent radicalisation (2010-12, HC 1446) para 38; I von Behr and others Radicalisation in the Digital Era (RAND, Santa Monica 2013); D Rieger, L Frischlich, and G Bente, Propaganda 2.0: Psychological Effects of Right-wing and Islamic Extremist Internet Videos (Luchterhand, Munich, 2013); DC Benson, ‘Why the internet is not increasing terrorism’ (2014) 23 Security Studies 293. See D O’Callaghan and others, ‘An analysis of interactions within and between extreme right communities in social media’ (2013) Ubiquitous Social Media Analysis 8329, 88; A Fisher and N Prucha, ‘The call-up: The roots of a resilient and persistent Jihadist presence on Twitter’ (2014) 4(3) CTX Journal (Online). See UNSCR 2178 of 24 September 2014.

Countering terrorism via the internet

The latter so-called ‘negative’ measures may be contrasted with more ‘positive’ approaches.23 ‘Negative’ measures describe all those approaches that advocate for, or result in, the deletion or restriction of violent extremist online content and/or the legal sanctioning of its online purveyors or users; ‘positive’ measures refer to those online initiatives that seek to make an impact through digital engagement and education.

Content control issues in general Both Article 19 of the UN’s Universal Declaration of Human Rights (UDHR) 1948 and Article 10 of the ECHR identify freedom of expression and the right to seek, receive, and impart information (including from foreign countries)24 as fundamental human rights. These grants of right also recognise, however, that freedom of expression is counter-balanced by stateimposed limitations for the sake of, inter alia, ‘public order’ (UDHR, article 29) or ‘national security, territorial integrity or public safety, for the prevention of disorder or crime’ (ECHR, Article 10(2)). This dichotomous international regime, in conjunction with states’ widely differing social, political, and religious contexts, added to the absence of any comprehensive international law definition of terrorism,25 opens many possibilities for variant interpretations and levels of tolerance.26 Uncertainties can also arise through differences between the ‘real’ and ‘cyber’ worlds. Existing rules about speech, promulgated for application in the real world, can be applied to the internet, as adopted in the EU for racist speech.27 However, it is arguable that the internet requires specific legislation tailored to its specific characteristics, which impart differences in terms of risk and legal attributes. The risk factors include quantity (the number, spread, and easy accessibility of messages) as well as quality (the intensity and instantaneity of messages and the facility for personal dialogue). The special legal attributes include the complexities of trans-jurisdictional impact, the potential for anonymity, and the technical expertise and specialist equipment required to gather evidence.28 These risk factors and legal attributes become especially troubling when the effects of online extremism may prove so pernicious.

23

24 25 26

27 28

For comprehensive strategic statements in regard to cybersecurity, see Cabinet Office, Cyber security strategy of the United Kingdom: safety, security and resilience in cyberspace (Cm 7642, London, 2009); Cabinet Office, The UK cyber security strategy: protecting and promoting the UK in a digital world (London, 2011); Department of Homeland Security, National Strategy to Secure Cyberspace (Washington DC, 2003); Executive Order 13636, Improving Critical Infrastructure Cybersecurity; T Legrand, ‘The citadel and its sentinels’ in T Chen, L Jarvis, and S Macdonald (eds), Cyberterrorism (Springer, Heidelberg, 2014). See Khurshid Mustafa and Tarzibachi v Sweden App No 23883/06, 16 December 2008 and more generally Társaság a Szabadságjogokért v Hungary App No 37374/05, 14 April 2009. See Chapter 2 (Saul) in this book. For guides, see U Sieber and PW Brunst, Cyberterrorism (Council of Europe, Strasbourg, 2007); MC Golumbic, Fighting Terror Online (Springer, New York, 2008); Home Office, Safeguarding Online: Explaining the Risk Posed by Violent Extremism (London, 2009); Y Akdeniz, Freedom of Expression on the Internet (Council of Europe Publishing, Strasbourg, 2010); UN Office on Drugs and Crime, The Use of the Internet for Terrorist Purposes (Vienna, 2012). See European Commission, Proposal for a Council Framework Decision on Combating Racism and Xenophobia (Brussels, 2001) 6, 8. See generally Y Akdeniz, C Walker, and D Wall, The Internet, Law and Society (Longman, London, 2000); I Spiecker genannt Döhmann, ‘The difference between online and offline communication as a factor in the balancing of interests with freedom of speech’ in CP Walker and RL Weaver (eds), Free Speech in an Internet Era (Carolina Academic Press, Durham NC, 2013). 419

Maura Conway and Clive Walker

In the light of these problems, many countries have introduced internet-content legislation, most of it hastily promulgated in the wake of specific terrorist events, such as 9/11 and 7/7. There may be some tangible benefits in terms of resolving the boundaries of forbidden conduct. However, there are also criticisms in terms of a disproportionately blanket ‘surveillance society’29 affecting the rights of all and not just suspects,30 the dubious efficacy of many provisions, and the absence of more innovative responses. Even the security authorities appear dissatisfied with the regime, and so, as revealed by Edward Snowden, they allegedly practice ‘dataveillance’ on a vast scale in ways that may transgress the boundaries of legality.31

‘Negative’ online measures Successful use of the internet for violent radicalisation and other violent extremist purposes is based on the assumption that both users and audiences have access to the messages communicated via the internet and also can interact. States therefore believe they can constrain the effectiveness of these cyber-based strategies by limiting user and audience access, either by ex ante or post hoc censorship of content (such as by criminal law or take-down measures) or by control over internet infrastructure (such as by filters and firewalls), or by combination of the two. Some of these ‘negative’ internet-based counter-terrorism measures involve laws, and some involve voluntary codes or regulatory dialogue with communication service providers (CSPs). Illustrations of negative content control measures will be derived primarily from official state action in the US, the UK, and the EU, though unofficial or unattributed cyber-attacks on jihadi and other extremist internet presences have also occurred, such as Internet Haganah.32 In the wake of the January 2015 attacks in Paris, Anonymous launched ‘Op Charlie Hebdo’ with the purpose of disabling jihadi forums and social media accounts. They claimed their first victory in this effort via a tweet on 12 January announcing the takedown of the French-language jihadi forum, Ansar al Haqq.

US negative measures Controls over internet-based speech are especially contentious in the US context, where the First Amendment to the US Constitution prioritises freedom of expression, including the right to publish extreme and offensive materials.33 Achieving a proper balance between content 29

30

31 32 33

420

See D Lyon, Surveillance After September 11 (Polity, Cambridge, 2005); Home Affairs Committee, A Surveillance Society? (2007–08 HC 58, and Government Reply, Cm 7449, London, 2008); House of Lords Select Committee on the Constitution, Surveillance: Citizens and the State (2008–09 HL 18, and Government Reply, Cm 7616, London, 2009); M Scheinin, Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism (A/HRC/13/37, 2009); C Fuchs and others (eds), Internet and Surveillance (Routledge, New York, 2011). See C Walker and Y Akdeniz, ‘Anti-terrorism laws and data retention: war is over?’ in (2003) 54 Northern Ireland Legal Quarterly 159; Joined Cases C-293/12 and C-594/12, Digital Rights Ireland Ltd v Minister for Communications, Marine and Natural Resources and others, 8 April 2014. See Chapter 10 (Macdonald) in this book. Key allegations were rejected in Liberty v GCHQ [2014] UKIPTrib 13_77-H. See G Weimann, Terror on the Internet (US Institute of Peace Press, Washington DC, 2006) 199. See Brandenburg v Ohio 395 US 444 (1969); Hess v Indiana 414 US 105 (1972); RAV v St Paul 505 US 377 (1992). The strength of the priority may have become less rigorous: T Healey, ‘Brandenburg in time of terror’ (2009) 84 Notre Dame Law Review 655. Compare for the UK, D Barnum, ‘Indirect incitement and freedom of speech in Anglo-American law’ [2006] European Human Rights Law Review 258.

Countering terrorism via the internet

control and freedom of expression has therefore proved to be a considerable challenge, though the balance is still weighted in favour of expression compared with the stance in Europe. It is for this reason that many extremist and terrorist websites have been hosted in the US. For example, in 1997, controversy erupted when it was revealed that the State University of New York (SUNY) at Binghamton was hosting the website of the Revolutionary Armed Forces of Colombia (FARC), and that a Tupac Amaru (MRTA) solidarity site was operating out of the University of California at San Diego (UCSD).34 SUNY officials promptly shut down the FARC site. In San Diego, officials decided in favour of free speech, and the Tupac Amaru site remained in operation on UCSD’s servers for some years. It was not illegal at that time to host such a site, even if a group was designated a FTO by the US Department of State, as long as a site was not seeking financial contributions nor providing financial support to the group. This toleration persists even after 9/11. For instance, though listed in 2011 by the UN 1267 Committee and by the US as a Specially Designated Global Terrorist (SDGT) under US Executive Order 13224, and proscribed in the UK in 2013,35 Imarat Kavkaz (Caucasus Emirate) remains available on the internet through the sympathetic Kavkaz Centre (www.kavkazcenter. com), which is hosted by Cloudflare in the US. The principal qualification to free speech since 9/11 has been the more aggressive usage of the anti-terrorist offences of material support.36 First, 18 USC section 2339A, enacted in 1994,37 addresses the provision directly or indirectly of financial or other material support or resources knowing or intending their use for terrorist activities as being forbidden by thirty-six listed offences. Proof of intent is required that the recipient is a terrorist group (even recklessness is not sufficient and certainly not negligence).38 By 18 USC s 2339B,39 it is an offence without any requirement of intent or belief as to the terrorist nature of the acts to be aided40 to provide material support or resources (including to oneself) to a designated FTO41 (Al Qa’ida was listed in 1999). Title III of the USA PATRIOT Act, sections 803 to 815, also known as the International Money Laundering Abatement and Anti-Terrorist Financing Act 2001,42 augmented sections 2339A and 2339B. It widened the notion of ‘material support or resources’ by including, for example, expert advice or assistance. Though just a handful of speech-related prosecutions have arisen, free speech activists fail to be convinced that there is any clear and present danger of imminent harmful action.43 In US v

34 35 36

37 38 39 40

41 42 43

See M Conway, ‘Terrorism and internet governance: core issues’ (2007) 3 Disarmament Forum 23. TA 2000 (Proscribed Organisations) (Amendment) (no 2) Order 2013 SI 2013/3172. See RM Chesney, ‘The sleeper scenario’ (2005) Harvard Journal on Legislation 1 and ‘Federal prosecution of terrorism related offences’ (2007) 11 Lewis & Clark Law Review 851; D Cole, ‘Terror financing, guilt by association and the paradigm of prevention in the “war on terror”’ in A Bianchi and A Keller, Counterterrorism (Hart, Oxford, 2008); J Ward, ‘The root of all evil’ (2008) 84 Notre Dame Law Review 471. Violent Crime Control and Law Enforcement Act 1994, PL 103-322 s 120005. But see US v Lakhani 480 F 3d 171 (2007). Antiterrorism and Effective Death Penalty Act 1996, PL 104-132, s 303. The Intelligence Reform and Terrorism Prevention Act 2004, PL 108-458, s 6603(c)(2) clarified that knowledge (but still not recklessness or negligence) is confined to the fact that the group is designated or has engaged in terrorism. 8 USC s 1189(a)(1), inserted by the Antiterrorism and Effective Death Penalty Act 1996, s 302 (see also 31 CFR s 597.101-901). PL 107-56. See Brandenburg v Ohio 395 US 444 (1969). Note also 32 County Sovereignty Committee v Department of State 292 F 3d 797 (2002). 421

Maura Conway and Clive Walker

Iqbal and Elahwal,44 Iqbal pleaded guilty to providing material support to Hizballah (also a designated FTO) by operating a satellite television service known as HDTV Limited, which carried Al-Manar and for which Iqbal was directly paid thousands of dollars by Al Manar. Next, in 2012, Tarek Mehanna, was sentenced to more than 17 years’ imprisonment for conspiracy to provide material support to Al Qa’ida, providing material support to terrorists (and conspiracy to do so), conspiracy to commit murder in a foreign country, conspiracy to make false statements to the FBI, and two counts of making false statements.45 His internet-related material support arose from, among other things, translating and posting on the internet Al Qa’ida recruitment videos and other documents, including some that encouraged violence against American military forces. The US Supreme Court upheld the constitutionality of the material support offences in 2010 against challenges based on free speech and vagueness in Holder v Humanitarian Law Project.46 Chief Justice John G. Roberts Jr declared that for speech to qualify as material support for terrorism, it had to be ‘expert advice or assistance’ delivered ‘in coordination with or under the control of ’ a designated FTO; ‘independent advocacy’ of a terror group’s ideology, aims, or methods is not a crime.47 Justice Roberts underlined that ‘under the material support statute, plaintiffs may say anything they wish on any topic’ and pointed out that ‘Congress has not sought to suppress ideas or opinions in the form of “pure political speech”’.48 Despite these statements, the Mehanna conviction suggests that individuals can be convicted of terrorism offences on the basis of online speech acts with very tenuous links to notions of financing or support by deed. A commitment to First Amendment rights is equally the reason put forward by major US social media companies, such as Facebook, Twitter, and YouTube, for their decisions to decline to censor some of the violent extremist content posted to their sites. US lawmakers have been amongst those exhorting Twitter and YouTube to cancel accounts they view as ‘terrorist’.49 In response, Twitter has adopted the mantra of being ‘the free speech wing of the free speech party’50 and has in the past refused requests from government officials, activist organisations, and

44 45

46

47 48 49

50

422

(2008) USDC, SDNY. (2012) USDC, SDNY, cert den 547 US (2014). See N Abel, ‘United States v. Mehanna, The first amendment, and material support in the war on terror’ (2013) 54 Boston College Law Review 711; GD Brown,‘Notes on a terrorism trial – preventive prosecution,“material support” and the role of the judge after United States v. Mehanna’ (2012) 4 Harvard National Security Journal 1; EG Knox, ‘Slippery slope of material support prosecutions: Social media support to terrorists’ (2014) 66 Hastings Law Journal 295. 561 US 1 (2010). See P Marguiles, ‘Advising terrorism: Material support, safe harbors, and freedom of speech’ (2011-2012) 63 Hastings Law Journal 455; A Tomkins, ‘Criminalizing Support for Terrorism: A Comparative Perspective’ (2011) 6 Duke Journal of Constitutional Law & Public Policy 81; D Cole,‘The first amendment’s borders: The place of Holder v. Humanitarian Law Project in first amendment doctrine’ (2012) 6 Harvard Law & Policy Review 148. Ibid. 18–20. Ibid. 20–1. See B Farmer, ‘Congress calls on Twitter to block Taliban’ Daily Telegraph Online (London, 25 December 2011); J Gettleman, ‘As militants use Twitter, US explores boundaries; Officials say government is examining options to close Al Shabab’s account’ International Herald Tribune (Paris, 21 December 2011) 3; Subcommittee on Counterterrorism and Intelligence of the Committee on Homeland Security House of Representatives, Jihadist Use Of Social Media – How to Prevent Terrorism and Preserve Innovation (Serial No 112-62, Washington DC, 6 December 2011). See E Barnett, ‘Twitter chief: We will protect our users from Government’ Daily Telegraph Online (London, 18 October 2011).

Countering terrorism via the internet

concerned individuals to cancel the accounts of, amongst others, Lebanese Hizballah, the Afghan Taliban, and Syria’s violent jihadi faction Jabhat al-Nusra. However, its policy began to shift in 2012 towards a more country-specific approach,51 and, in January 2013, Twitter cancelled the account of Somalia’s al-Shabab following the group tweeting photographs of the body of a French commando whom they had killed followed by explicit threats to execute Kenyan hostages they held.52 In the event, al-Shabab reestablished their Twitter account, under a slightly different name, almost immediately, and Twitter was once again embroiled in controversy when the group live Tweeted their attack on the Westgate shopping mall in Nairobi, Kenya in September 2013.53 Twitter appears to have shifted its position somewhat since, engaging in a wholesale cull of violent jihadi accounts from mid-2014 possibly, according to one analyst, at the behest of the US government and almost certainly also influenced by the use of these accounts to spread images from and links to beheading videos.54 These verdicts by CSPs of life and death over social media accounts highlight the lack of transparency surrounding how decisions are taken as to which accounts are cancelled and why. Twitter have no detailed and publicly available guidelines on the matter but merely report on requests,55 as does Google.56 The Edward Snowden revelations also alleged ongoing contacts with state agencies, which have become embarrassing for CSPs.57

UK negative measures Compared with the US, the UK counter-terrorism laws contain a more comprehensive catalogue of criminal offence and take-down measures, with less restraint in their application, though the results often remain controversial.58 Reflecting the pursuit of precursor crimes, the mainstay offences dealing with extremist materials on the internet are sections 57 and 58 of the TA 2000. Section 57(1) is contravened by possession of an article in circumstances, which give rise to a reasonable suspicion that the possession is for a purpose connected with terrorism. The articles possessed will often be lawful in themselves and even commonplace. Regarding multiple-use articles such as computer disks or cars, section 57(1) only requires ‘a’ purpose to be nefarious, not a main or sole purpose. In

51 52 53 54 55 56 57 58

See J Taylor, ‘Twitter faces user backlash over move to censor messages’ Independent (London, 28 January 2012) 10. See ‘Twitter bars Islamists’ account in English’ Daily Telegraph (London, 26 January 2013) 18. See H Alexander, ‘Tweeting terrorism’ Daily Telegraph Online (London, 22 September 2013). See D Friedman,‘Twitter kills ISIS accounts over threats, denies fiends propaganda win’ Daily News (New York, 17 August 2014) 12. All content removal requests directed at Twitter are however posted on the Chilling Effects website at www.chillingeffects.org accessed 20 January 2014. See www.google.com/transparencyreport/removals/government/ accessed 20 January 2014. They have proposed greater use of encryption in response: ‘Yahoo joins Google in effort to protect users’ emails from prying eyes’ Daily Telegraph Online (London, 8 August 2014). See C Walker, ‘Cyber-terrorism: Legal principle and the law in the United Kingdom’ (2006) 110 Penn State Law Review 625; M Conway, ‘Terrorism and the internet: new media, new threat?’ (2006) 59 Parliamentary Affairs, 283; I Cram, Terror and the War on Dissent - Freedom of Expression in the Age of Al-Qaeda, (Springer, Berlin, 2009); A Carlile and S Macdonald, ‘The criminalisation of terrorist online preparatory acts’ in T Chen, L Jarvis, and S Macdonald (eds), Cyberterrorism (Springer, Heidelberg, 2014); CP Walker, The Anti-Terrorism Legislation (3rd edn, Oxford University Press, Oxford, 2014) chs 2, 6. 423

Maura Conway and Clive Walker

R v Omar Altimini,59 computer materials held by a ‘sleeper’ contravened section 57. Recognising possible overreach, section 57(2) offers a defence by proof on an evidentiary basis according to R v Director of Public Prosecutions, ex parte Kebilene60 that possession of the article was not for a purpose connected with terrorism. The offence is highly valued by police and prosecutors. Since 2006, sentences have increased and include 12 years (‘the top of the spectrum’) for a vast collection of propaganda and instructional guides, observations of security at Manchester Airport, UK, and musings about attacks.61 Even more relevant are the offences under section 58. Section 58(1) contains two variants of actus reus: collecting or making a record of information likely to be useful to terrorism or possessing a document or record containing information of that kind. A ‘record’ includes electronic formats (section 58(2)). The defendant must be aware of the nature of the contents.62 However, the Crown is also not required to show that the defendant harboured a terrorist purpose. In R v K, the defendant, Khalid Khaliq, argued boldly that section 58 was insufficiently certain to comply with Article 7 of the ECHR. In response, the Court of Appeal sought to remedy any imprecision by reading in the requirement of a purpose useful to terrorism. Thus, the purpose of the information (rather than the possessor) is at stake – it intrinsically ‘calls for an explanation’.63 The information must be of an intrinsic kind that gives rise to a reasonable suspicion that it is likely to provide practical assistance to a person committing or preparing terrorism rather than simply encouraging the commission of terrorism. To illustrate, the A–Z of London could be useful to a terrorist in the location of a target, but that use would not fall within section 58 since that document does not intrinsically arouse suspicion.64 In R v Terence Roy Brown, an internet seller of literature, such as The Anarchist Cookbook, which he admitted was useful to terrorists, was convicted even though he viewed his activities as a non-ideological business on which he paid taxes.65 By section 58(3), it is a defence to prove a ‘reasonable excuse’. Section 58 is commonly invoked against those who download and disseminate extremist internet material. In R v Khuram Shazad Iqbal,66 the defendant (aka ‘Abu Irhaab’) had used Facebook and Twitter to post links to 848 examples of extreme content (videos and articles) on the internet and was found with nine copies of the Al Qa’ida magazine Inspire on his laptop. There have been 76 charges under section 57 and 44 under section 58 from 11 September 2001 to 31 March 2013 (out of 375 under anti-terrorism legislation).67 The main controversies surrounding these offences concern the equivocal nature of the actions involved and the switched burden of proof of reasonable excuse. Journalists and even scholars can in theory fall foul,68 as can self-proclaimed freedom fighters.69 Despite the shifts in judicial interpretation that

59 60 61 62 63 64 65 66 67 68 69 424

[2008] EWCA Crim 2829. [2000] 2 AC 326. R v Sultan Muhammed and Aabid Hassain Khan [2009] EWCA Crim 2653, [13]. R v G and J [2009] UKHL 13 [47], [48]. See further R v Samina Malik [2008] EWCA Crim 185, [14]; R v G and J [2009] UKHL 13, [43], [44]. [2008] EWCA Crim 1450. [2011] EWCA Crim 2751, [17], [34]. [2014] EWCA Crim 2650. Source: Home Office, Operation of Police Powers under theTerrorism Act 2000 and Subsequent Legislation (London, 2013) Tables A05a and b. See ‘The case of Rizwaan Sabir’ The Guardian (London, 15 September 2011) 11. See R v Gul [2013] UKSC 64, [54] (prosecution under the TA 2000, s 2).

Countering terrorism via the internet

have occurred, the ECtHR in Jobe v United Kingdom rejected a complaint that section 58(3) had resulted in the application of a retrospective criminal penalty.70 Countering the ideology of terrorism is further addressed by offences against extremist speech and publications in sections 1 and 2 of the TA 2006. These offences react not only to the July 2005 London bombings but also in some aspects to the Council of Europe Convention on the Prevention of Terrorism 2005.71 The principal offence in section 1(1) relates to the publication of statements that are ‘likely to be understood by some or all of the members of the public to whom it is published as a direct or indirect encouragement or other inducement to them to the commission, preparation or instigation of acts of terrorism’ or specified offences that are referred to as ‘convention offences’. As for the mens rea, in section 1(2)(b), the publisher must either intend members of the public to be directly or indirectly encouraged or otherwise induced by the statement to commit, prepare, or instigate acts of terrorism or specified offences, or be subjectively reckless as to whether members of the public will be so directly or indirectly encouraged by the statement. The most controversial facet of the offence is ‘indirect’ encouragement. By sub-section (3), the indirect encouragement of terrorism includes a statement that ‘glorifies’ the commission or preparation of acts of terrorism or specified offences (either in their actual commission or in principle) but only if members of the public could reasonably be expected to infer that what is being glorified in the statement is being glorified as conduct that should be ‘emulated by them in existing circumstances’. ‘Glorify’ is partly defined in section 20(2) as including ‘praise or celebration’. Having handled the originators of statements in section 1, section 2(1) deals with secondary dissemination. The offence may be committed by a ‘terrorist publication’ such as by electronic transmission. It is a defence under section 2(9) to show that the statement neither expressed the publisher’s views nor had his or her endorsement. This defence can benefit ‘all legitimate librarians, academics and booksellers’72 (and broadcasters and bloggers) who may have examined the article but do not endorse its contents. There have been only ten prosecutions up to 31 March 2013.73 As with section 58, challenges on human rights grounds have been rejected.74 A purely preventive measure is section 3, which seeks to apply these offences in the context of ‘unlawfully terrorist-related’ articles or records on the internet and to devise a short-circuit enforcement power. It was claimed that ‘extremist’ websites have proliferated,75 and that communication technologies represent both an important terrorist target and logistical aid. Section 3(1) applies where the publication under section 1 or the dissemination under section 2 was produced electronically. The impugned materials are those that are unlawfully terrorismrelated under section 3(7). The short-circuit process under section 3(3) arises where a constable forms the opinion that material held on the system of the service provider is unlawfully terrorism-related. A notice can be issued that requires the provider to arrange for the material

70 71

72 73 74 75

App No 48278/09, 14 June 2011, [31]. Compare J Hodgson andV Tadros,‘How to make a terrorist out of nothing’ (2009) 72 Modern Law Review 984. ETS 196. See E Parker ‘Implementation of the UK Terrorism Act 2006’ (2007) 21 Emory International Law Review 711; E Barendt, ‘Incitement to, and glorification of terrorism’ in I Hare and J Weinstein (eds), Extreme Speech and Democracy (Oxford University Press, Oxford, 2009); Walker Terrorism and the Law (n 11) ch 8. Hansard (HL) vol 676, col 465 (5 December 2005), Baroness Scotland. Sources: Statistical bulletins of the Home Office and Northern Ireland Office. See Iqbal v R [2014] EWCA Crim 2650. Home Office, Pursue, Prevent, Protect, Prepare: The United Kingdom’s Strategy for Countering International Terrorism (Cm 7547, London, 2009) para 5.14. 425

Maura Conway and Clive Walker

to become unavailable to the public and also warns the provider that failure to comply with the notice within two working days76 will result in the matter being regarded as being endorsed with consequent potential liability under sub-section (4). Critics argued that these restrictions on freedom of expression should engage a judicial officer at some stage so that the value of rights could be considered more explicitly than in the likely calculations of a commercial service provider. The government retort was that judicial process would cause undue delay in a ‘fast-moving world’,77 though the Home Office Guidance on Notices Issued under Section 3 of the Terrorism Act 2006 does seek to confine the initiation of notices to expert officers of the MPS Counter-Terrorist Command. By 15 January 2015, the removal of 72,000 web items (at an increasing rate per year) had been prompted, though how this figure relates to alerts is not revealed.78 The potential operation of section 3 is curtailed by the impact of the Electronic Commerce Directive.79 More importantly, section 3 is bypassed by responsive action by CSPs in response to informal police requests. Indeed, the guidance suggests dialogue and that a ‘voluntary approach’ should be taken where the provider is not viewed as encouraging publication.80 In consequence, section 3 has never been formally invoked. The public are also invited to sound an alert about extremism and terrorism via a government website, which feeds into the Counter Terrorism Internet Referral Unit (CTIRU), launched by the Association of Chief Police Officers (ACPO) in 2010,81 to encourage ‘a civic challenge against material that [the public] find offensive, even if it is not illegal.’82 The Head of Government Communications Headquarters (GCHQ) and the UK Prime Minister in November 2014 highlighted the shortcomings of these warning systems. The Head of GCHQ, Robert Hannigan, stated that social media companies are ‘the command-andcontrol networks of choice for terrorists’, with some technology companies ‘in denial’ about the internet’s misuse.83 Following criticism also by the Prime Minister,84 several UK operators (BT, Virgin, Sky, and TalkTalk) agreed to install public reporting buttons to flag terrorist material on their services whilst Facebook, Google, Yahoo, and Twitter agreed to mentor smaller internet companies on standards of content monitoring. More difficult is to contend with overseas CSPs. No international system replicates these UK take-down measures elsewhere, despite the dangers recognised by the EU Framework Directive on Combating Terrorism.85 Most extremist content is hosted by US-based CSPs.

76 77 78 79 80 81 82

83 84 85

426

S 3(2), (9). Hansard (HL) vol 676, col 677 (7 December 2005), Baroness Scotland. Home Affairs Committee, The Roots of Violent Radicalisation (2010–12, HC 1446) para 53. It called for a code of conduct for ISPs: para 59. 2000/31/EC. See Electronic Commerce (European Communities Directive) Regulations 2002, SI 2002/2013. Paras 20, 27, Annex C. www.gov.uk/report-terrorism accessed 20 January 2015. See M Blain, ‘Terrorism trawlers’ (2011) Police Review 20 May 20. Hansard (House of Commons) vol 591 col 332, 21 January 2015. For the chronology, see https://wiki.openrightsgroup.org/wiki/Counter_Terrorism_Internet_Referral_Unit? accessed 20 January 2015. R Hannigan, ‘The web is a terrorist’s command-and-control network of choice’ Financial Times (London, 3 November 2014). P Wintour, ‘UK ISPs to introduce jihadi and terror content reporting button’ The Guardian (London, 14 November). Council Framework Decision, 2008/919/JHA, para 4. Europol encourage police cooperation through the ‘Check the Web’ initiative: EU Council docs 9496/06, 16532/1/06, 8457/3/07.

Countering terrorism via the internet

Their receptivity to self-censorship is lower than for European-based companies, as highlighted by the ISC Report on the intelligence relating to the murder of Fusilier Lee Rigby.86 One of the soldier’s killers, Michael Adebowale, had several of his multiple social media internet accounts (later revealed by the media to be operated through Facebook) closed proactively without official request by the CSP using an automated process because, according to GCHQ, ‘they hit triggers… related to their criteria for closing things down on the basis of terrorist content’.87 Facebook also learned, on completion of a retrospective review of all his eleven accounts,88 that Adebowale had also discussed ‘in the most explicit and emotive manner’ over Facebook’s instant messaging service his desire to murder a soldier.89 The ISC was critical of monitoring procedures by CSPs,90 though serial investigations by the Security Service were excused as sufficiently thorough, especially because, as pointed out even by GCHQ,91 true intent can be very difficult to discern from online communications. Putting aside other relevant factors around data privacy, accountability for surveillance, the duty of care to users, and the economic efficiency, were social media companies to be obliged to proactively monitor and share all postings of a violent extremist nature with security authorities, the former would have little time or money for anything else and the latter would be deluged with information and likely rendered unable to function.

European initiatives Because of US constitutional distaste for restrictions on freedom of expression, the UN has achieved few tangible results in this field and most activity has arisen within Europe. Key international legal instruments addressing content have emanated from the Council of Europe – not only the Convention on the Prevention of Terrorism 2005 mentioned earlier but also the Convention on Cybercrime 2001 and the Additional Protocol 2002.92 The Protocol specifies various types of hate speech that should be prohibited on the internet, including racist and xenophobic materials, justification of genocide, and crimes against humanity. The Organization for Security and Co-operation in Europe (OSCE) is active in this field also. Its Sofia Ministerial Council decided in 2004 that participating States will exchange information on the use of the Internet for terrorist purposes and identify possible strategies to combat this threat, while ensuring respect for international human rights obligations and standards, including those concerning the rights to privacy and freedom of opinion and expression.93 A follow-up decision from the OSCE’s Brussels Ministerial Council in 2006 invited participating states to ‘increase their monitoring of websites of terrorist/violent extremist

86 87 88 89 90 91 92

93

(2014-15 HC 795). Ibid para 384. Ibid para 390. Ibid para 384. Ibid para 389. Ibid para 393. ETS 185, 189. As at the end of 2014, the US had ratified the former (along with five other nonmembers of the Council of Europe), but the US has not signed the latter on First Amendment grounds. Twenty-three member states have ratified the Additional Protocol (not including the UK). OSCE Ministerial Council, Sofia, 2004, Decision No. 3/04: Combating the Use of the Internet for Terrorist Purposes. 427

Maura Conway and Clive Walker

organisations and their supporters and to invigorate their exchange of information.’94 Since that time, numerous OSCE events have aired various policy views addressing internet content control, though no new rules have been instituted as a result of these discussions.95 As regards the EU, terrorist uses of the internet and the risks posed by them are alleged not to have been the subject of serious attention by its policy-makers until quite recently because the issue is viewed as relatively novel and because the gestation of EU policy occurs at a glacial pace.96 In fact, the EU has worked on formulating harmonised policy on combating terrorist use of the internet since 2006. Council Framework Decision 2008/919/JHA of 28 November 2008 amending Framework Decision 2002/475/JHA on combating terrorism required state action to criminalise incitement of terrorism via the internet, including ‘public provocation to commit a terrorist offence’, as well as the use of the internet for recruitment for terrorism and training for terrorism. Though the UK had passed such legislation in 2006, other countries were thus prompted to take action.97 Other initiatives undertaken by the EU include ‘Check the Web’, which was launched in 2007 and allows states to pool data on terrorist propaganda and internet chatter at Europol.98 The EU Commission also funded a project titled CleanIT99 to initiate ‘a structured publicprivate dialogue between government representatives, academics, Internet industry, Internet users and non-governmental organisations in the European Union’ on ‘Reducing terrorist use of the Internet’. Its final product was a report on conditions for action, plus best practices.100 It has been argued that the real value of the CleanIT project resided in the fact that ‘it has turned the spotlight on a wider problem: the [European] Commission’s reliance on industry solutions to address problems that are badly defined by policymakers from the very beginning’.101

Large-scale technologically facilitated blocking and unattributed take-downs Discussion up to now has focused largely on legislated or voluntary content removals. In addition, states are not technologically impotent when faced with terrorists seeking to use the internet, especially not powerful states with large defence budgets and advanced technological capabilities. Thus, states can seek to constrain the effectiveness of these cyber-based strategies by limiting user and audience access to online platforms through control of the internet infrastructure. The common element for governmental filtering is generally an index of websites that citizens are blocked from accessing. If a website appears on this list, access can be blocked. Filtering of content is carried out in many countries, such as China, Iran, Saudi Arabia, and Singapore, and in some cases, CSPs are pressured to apply blocks. In the final week of

94 95

96 97 98 99 100 101 428

OSCE Ministerial Council, Brussels, 2006, Decision No. 7/06: Countering the Use of the Internet for Terrorist Purposes. See OSCE, ‘Expert Workshop on Combating the Use of the Internet for Terrorist Purposes’ (Vienna, 13–14 October 2005); OSCE-Council of Europe, ‘Expert Workshop on Preventing Terrorism: Fighting Incitement and Related Terrorist Activities’ (Vienna, 19–20 October 2006). J Argomaniz, ‘European Union responses to terrorist use of the Internet’ (2014) Cooperation and Conflict (Online) 5. See F Galli and A Weyembergh, EU Counter-terrorism Offences: What Impact on National Legislation And Case-Law? (University of Brussels, Brussels, 2012). See Article 36 Committee, Council Conclusions on cooperation to combat terrorist use of the Internet (‘Check the Web’) (8457/3/07 REV 3, 2007). See http://cleanitproject.eu/, accessed 20 January 2015. Reducing Terrorist Uses of the Internet (The Hague, 2013). Argomaniz (n 109) 11.

Countering terrorism via the internet

December 2014, for example, the government of India instituted a block on thirty-two major websites including software code repository Github, video streaming sites Vimeo and Dailymotion, the Internet Archive, and many others, on the basis of their hosting what Arvind Gupta, head of Information Technology for India’s ruling Bharatiya Janata Party, called ‘Anti India content from ISIS’. Five sites (weebly.com, vimeo.com, Pastebin, dailymotion.com, and gist.github.com) were unblocked after agreeing to remove ‘Anti-India’ content.102 Finally, in terms of ‘negative’ measures, an even more drastic content control approach is to use cyber-attack methods. Today there are between two and five so-called ‘top tier’ jihadi forums.103 Forums are considered ‘top tier’ that receive new and authentic content for distribution from ‘official’ jihadi media production outlets, such as Al Qa’ida’s As-Sahab, Islamic State’s Al-Hayat, amongst others. These forums are thus the subject of fairly routine attacks that can result in their being offline for days, weeks, or even months.104 It is not known what or who is responsible for these outages, but many assume they are the work of one or more states’ intelligence agencies. Such attack strategies have been criticised by those who argue that violent extremist online forums and other violent extremist cyberspaces can serve as valuable providers of open source intelligence for states’ intelligence agencies.105

‘Positive’ online measures Generally less contentious are ‘positive’ online counter-terrorism measures that employ online engagement and outreach rather than content controls to stem the encouragement of violence. Most contemporary such campaigns focus upon social media that target youth, since they are believed to be particularly vulnerable to violent online political extremist rhetoric. This work is often undertaken by non-governmental organisations and individual activists, including young people themselves; although some such campaigns have also been undertaken by state agencies. Within the realm of state interventions, shortly after 11 September 2001, the UK domestic Security Service (MI5) took the unprecedented step of posting an appeal for information about potential terrorists on dissident Arab websites.106 The message, in Arabic, was placed on sites that the authorities knew were accessed by extremists, including Islah.org, a Saudi Arabian opposition site, and Qoqaz.com, a Chechen site that advocated jihad. MI5 were hopeful of eliciting information from persons on the margins of extremist groups or communities who were sufficiently shocked by the events of 11 September 2001 to want to contact the agency. The

102

103 104 105

106

S Panigrahi, ‘Indian Netizens Criticize Online Censorship of ‘Jihadi’ Content’ http://globalvoices online.org/2015/01/06/indian-netizens-criticize-online-censorship-of-jihadi-content/ accessed 20 January 2015. AY Zelin, The State of Global Jihad Online (New America Foundation,Washington DC, 2013) 2. Ibid 9. J Lasker, ‘Watchdogs Sniff Out Terror Sites’ Wired News 25 February 2005. Available at: www.wired.com/news/privacy/0,1848,66708,00.html accessed 20 January 2015; W McCants, Testimony, US House of Representatives, Subcommittee on Counterterrorism and Intelligence, ‘Jihadist use of social media: how to prevent terrorism and preserve innovation,’ 6 December 2011. Available at: http://homeland.house.gov/sites/homeland.house.gov/files/Testimony%20 McCants.pdf accessed 20 January 2015; Zelin (n 103); MR Torres Soriano, ‘The vulnerabilities of online terrorism’ (2012) 35 Studies in Conflict & Terrorism 263. See M Conway,‘Terrorist Use of the Internet and the Challenges of Governing Cyberspace’ in M Dunn, V Mauer, and F Krishna-Hensel (eds), Power and Security in the Information Age (Ashgate, London, 2007). 429

Maura Conway and Clive Walker

agency had intended to post the message on a further fifteen sites known to be accessed by radicals, but many of these were shut down by the FBI in the aftermath of the attacks. Later, in 2007, the UK Home Office established the Research Information and Communications Unit (RICU) as a cross-departmental strategic communications body based at its Office for Security and Counter-terrorism; RICU seeks to coordinate government communication activities to counter violent extremism while promoting inter-community relations.107 Another ‘positive’ government agency initiative is the ‘Think Again Turn Away’ social media campaign run by the US State Department’s Centre for Strategic Counterterrorism Communications (CSCC). The CSCC was established in 2010, to coordinate, orient, and inform government-wide foreign communications activities targeted against terrorism and violent extremism, particularly al-Qaeda, and its affiliates and adherents… The Digital Outreach Team actively and openly engages in Arabic, Urdu, Punjabi, and Somali to counter terrorist propaganda and misinformation about the United States across a wide variety of interactive digital environments that had previously been ceded to extremists.108 The CSCC is both praised and vilified for ‘Think Again Turn Away,’ an English-language social media campaign that commenced in December 2013, whose mission is described on its Facebook page as ‘to expose the facts about terrorists and their propaganda’. In addition to its Facebook presence, the campaign is also active on Ask.fm, Google+, Tumblr, Twitter, and YouTube where it disseminates content that addresses the same grievances as those in extremist content, including in some instances creating ‘mash-ups’ of Islamic State content and recirculating it. Many commentators view the CSCC’s online activity as a drop in the ocean compared with the likes of Islamic State, but as essentially harmless; others describe CSCC activity as ‘embarrassing’ and ‘ineffective’.109 In 2012, the EU established its Radicalisation Awareness Network (RAN) under Directorate General Home Affairs to dissuade people from participating in violent extremism and terrorism or to persuade them to separate themselves from such ideas and methods in the first place.110 The RAN is composed of eight working groups – composed of researchers, activists, and Countering Violent Extremism (CVE) practitioners (to name a few) – one of which, RAN@, is tasked with ‘develop[ing] frontline partnerships around the collation, creation, and dissemination of counter-[violent extremist] and alternative-narratives through the Internet and social media’. Other RAN working groups have also discussed using the internet to reach out to publics: RAN Voices of Victims of Terrorism has, for example, expressed a desire to have the voices of terrorism victims amplified via the internet and social media. Finally, private actors have challenged violent jihadism online. Government heavily backs some,111 but individuals and non-governmental organisations have initiated others. Their

107 108 109

110 111

430

See www.counterextremism.org/download_file/106/134/413/ accessed 20 January 2015. Available at: www.state.gov/r/cscc/ accessed 20 January 2014. R Katz,‘The State Department’s Twitter War with ISIS Is Embarrassing’ Time Magazine (NewYork, 16 September 2014). Available at: http://time.com/3387065/isis-twitter-war-state-department/ accessed 15 February 2015. See http://ec.europa.eu/dgs/home-affairs/what-we-do/networks/radicalisation_awareness_net work/index_en.htm accessed 20 January 2014. Probably best known (and highly controversial) is the Quilliam Foundation www.quilliam foundation.org/ accessed 20 January 2015.

Countering terrorism via the internet

denunciations or alternative interpretations have taken many different forms, ranging from online video and other online responses denouncing violent extremism by scholars112 and imams to wide-ranging multimedia campaigns such as ‘My Jihad’,113 from ordinary individuals uploading videos to YouTube to more general macro-level positive messaging about Islam targeted at children and youth such as Naif al-Mutawa’s comic and animated series,‘The 99’.114 A particularly interesting example is Abdullah-X, a series of online animated shorts developed by a former extremist, which received support from RAN@ and Google.115 The developer’s status as a former extremist probably lends the project greater credibility than some of those described earlier, and the site may be more accessible and appealing to youth than most statesponsored campaigns.

Conclusion Given that the internet is part of the infrastructure of contemporary everyday life in the same way as supermarkets and motorways, it is misguided to bestow responsiblity on the internet for the aberrant terrorist usage of a small minority or to require that they should treat everyone as an equal risk and potential suspect. Nevertheless, even with the price being paid by extensive criminal offences, intrusion into free speech activities, and the running of new bureaucracies and programmes of funding, one can feel assured that not all terrorism will be averted. The acculturalisation of immigrant communities in Western values and lifestyles will prove very difficult owing to the perceived shallowness of those lifestyles and the hypocrisy in the official adherence to proclaimed values. It is also difficult to compete in the market place of ideas against the narratives of jihadism, which speak in simplistic, hedonistic, and graphic language not available to official spokespersons. As a result, the dismal prospect is that, no matter how much the state strives to counter international terrorism, current emanations of violent extremism will take generations to assuage.

112

113 114 115

In March 2010, for example, Sufi Shakyh Dr Muhammad Tahir-ul-Qadri issued a 600-page ‘fatwa’ (i.e. a religious ruling) in English and Urdu condemning terrorism, which has an accompanying website www.fatwaonterrorism.com accessed 20 January 2015. See ‘My Jihad’ website: http://myjihad.org/ accessed 20 January 2015. The 99’s accompanying Website is www.the99.org/ accessed 20 January 2015. The Abdullah-XYouTube channel is www.youtube.com/user/abdullahx accessed 20 January 2015. 431

28 Manifestations of extremism Fergal Davis and Clive Walker

Outline The term, ‘preachers of hate’, has become associated with the extremist views of a number of high-profile individuals in Western Europe who have delivered messages to their followers which are said to have inspired violence in a minority of their followers. One prominent exponent is Abu Hamza, whose curriculum vitae includes a conviction for incitement to murder in the UK,1 protracted extradition proceedings,2 and latterly his conviction in a US Federal court for involvement in terrorism.3 On a global perspective, these preachers of hate are not confined to those with long beards who seek to peddle a particular brand of jihadi rhetoric. In March 2014, Fred Phelps, of the Westboro Baptist Church, died after a long career of infusing his family and followers with rabid and hateful views about a variety of social and political issues.4 But Western states have mainly concentrated on the expression of jihadi extremism as being the most threatening, hoping that the likes of Phelps and other fascists will turn out to be less inclined or competent at violence, even though there are instances such as the killing in 2011 of 77 Norwegians by Anders Breivik that prove otherwise.5 What should states do about these manifestations of extremism? On the one hand, they believe in values such as collective democracy and individual expressive rights to speech and association. On the other hand, the direct incitement of violence is not tolerable in liberal theory while the more indirect processes of ‘radicalisation’ or ‘glorification’ or ‘poisoning of

1

2 3 4

5 432

R v Abu Hamza [2006] EWCA Crim 2918. See S O’Neill, S and D McGrory, The Suicide Factory: Abu Hamza and the Finsbury Park Mosque (HarperCollins, London 2006). For a flavour of other accounts, see M Phillips, Londonistan: How Britain is Creating a Terror State from Within (Gibson Square, London, 2006); YY Haddada and MJ Balzb, ‘Taming the Imams’ (2008) 19 Islam and Christian–Muslim Relations 215; AZ Huq, ‘The signaling function of religious speech in domestic counterterrorism’ (2011) 89 Texas Law Review 833. Abu Hamza v Secretary of State for the Home Department [2012] EWHC 2736 (Admin). US v Mostafa, USDC SDNY, 19 May 2014. See:www.justice.gov/usao/nys/pressreleases/May14/ AbuHamzaVerdictPR.php accessed 31 October 2014. See Snyder v Phelps 562 US (2011). Phelps was placed on a Home Office list in 2009, which barred entry to the UK, along with several Muslim preachers: www.theguardian.com/uk/2009/may/ 05/list-of-people-banned-from-uk accessed 31 October 2014. See Rapport fra 22.juli-kommisjonen (Oslo 2012).

Manifestations of extremism

minds’ causes disquiet and set tough questions about line-drawing.6 We shall attempt to lay out some reflections on this quandary according to the following plan. First, we shall consider how manifestations of extremism might fit within terrorism strategy. It is equally important to consider how responses fit within counter-terrorism strategy. Second, consideration of counter-terrorism strategy leads into actual tactics, which we shall outline along with their purposes and mechanical implementation. Our exposition is also critical – based on what is effective and what is constitutional.

Strategic considerations Terrorism is ‘violence for political ends’.7 Much of the law concentrates on the violence. That aspect of political extremism commands most attention and is most unacceptable to society. The political aspect of terrorism is more insidious, but is an integral part of both terrorist strategy (in terms of which constituency is being addressed and with what political message) and in terms of counter strategy. A look at both strategy and counter-strategy will follow.

Strategy The duality of terrorism was well encapsulated by the leading Republican, alleged member of the IRA, and one-time publicity director for Sinn Féin, Danny Morrison. Speaking at the Sinn Féin Ard Fheis in 1981, Morrison advocated a growing emphasis upon political tactics, sometimes called the ‘Armalite and ballot box strategy’: ‘Who here really believes we can win the war through the ballot box? But will anyone here object if, with a ballot paper in this hand and an Armalite in the other, we take power in Ireland?’8 This strategy was formulated after the prison Hunger Strikes as a response to the electoral success of Bobby Sands, who was elected as Member of Parliament in a by-election in April 1981 shortly before his death. Sinn Féin had hitherto refused to take part in electoral contests and had been banned as a political party in Northern Ireland up to 1974. After this time, it began to contest and win elections in Northern Ireland, the Republic of Ireland, and the UK. The strategy is also replicated by the likes of ETA and Hamas. In the case of the latter, an express distinction between politics and militancy is expressly recognised by some states, with Hamas being tolerated (barely) as a political and social organisation but the Al-Qassam Brigades becoming proscribed in the UK and Australia. Australia’s Independent National Security Legislation Monitor,9 whose logic is no doubt overridden by the realpolitik necessity to have an interlocutor for Gaza, has condemned the distinction. But are these nationalist-driven groups fundamentally different from so-called ‘New Terrorism’?10 There are frequent statements from contemporary states that post-modern

6

7 8 9 10

See R Coolsaet (ed.), Jihadi terrorism and the Radicalisation Challenge in Europe (Ashgate, Aldershot 2008); A Dalgaard-Nielsen, ‘Violent radicalization in Europe’ (2010) 33 Studies in Conflict & Terrorism 797; J Bartlett and others, The Edge of Violence (Demos, London, 2010). Consider also ‘precursor crimes’ in Chapter 3 (Llobet and Masferrer) and ‘Prevent’ policies in Chapter 26 (Razak, Rehman, and Skolczylis) in this book. I McAllister,‘“The Armalite and the ballot box”: Sinn Fein’s electoral strategy in Northern Ireland’ (2004) 23 Electoral Studies 123, 124. B Walker, Annual Report 7th November 2013 (Canberra, 2013) 68. See P Neumann, Old and New Terrorism (Polity, Cambridge, 2009). 433

Fergal Davis and Clive Walker

formations, such as Al Qa’ida, are nihilistic (or at least utopian) and reflect no practical policies.11 It is true that Al Qa’ida and those inspired by it often do not seek to form a corresponding political entity but are content to offer the inspiration for the adoption of political initiatives by others. Though arguably weaker as a result, it gains strength from adaptability and breadth. But to deny there are political policies is to ignore the Fatwas of 1996 and 1998, which amounted to an actionable programme of revolution.12 Furthermore, the declaration on 29 June 2014 of the Caliphate of the Islamic State as subsisting in parts of Iraq and Syria again indicates that some acolytes are not purely nihilistic but entertain aspirations to govern. This link to politics even remains true of ‘disorganisations’ and ‘lone wolf ’ exponents. Thus, Anders Brevik’s manifesto, 2083 – A European Declaration of Independence,13 is poorly designed to win hearts and minds. But the grounding of his actions in political aims should not be doubted.

Counter-strategy The determination on the part of states to respond to manifestations of terrorism has long been evident. Thus, offences of solicitation to murder were invoked in Britain against foreign émigrés and anarchists in the late-nineteenth century,14 while countries such as France and Spain then passed ‘apology’ offences.15 Organised political violence, especially by fascist groups in the 1930s, spawned consideration of the concept of ‘militant democracy’ by which it became almost a duty (and certainly a worthwhile enterprise) to become ‘militant’ and to avoid ‘legalistic self-complacency and suicidal lethargy’16 in response to the activities of the enemies of democracy. This discourse was reinforced in the immediate post-war era by the likes of Clinton Rossiter, who was prepared to countenance ‘constitutional dictatorship’, with extensive emergency powers in the hands of the executive in order to defend against the post-war forms of totalitarianism, which then assailed free societies.17 The growth of the mass media created other avenues for repression, with the UK’s broadcasting ban, imposed from 1988 to 1994 and mainly directed against Sinn Féin, being one prominent legal response in the time of the ‘Troubles’.18

11 12 13 14

15

16 17

18 434

M Ignatieff, The Lesser Evil: Political Ethics in an Age of Terror (Princeton University Press, Princeton, 2004) 99. See www.heritage.org/research/projects/enemy-detention/al-qaeda-declarations accessed 31 October 2014. See www.fas.org/programs/tap/_docs/2083_-_A_European_Declaration_of_Independence.pdf accessed 31 October 2014. See R v Most (1881) 7 QBD 244; R v Antonelli and Barberi (1905) 70 JP 4. For more recent cases, see R v El-Faisal [2004] EWCA Crim 343, [2004] EWCA Crim 456; R v Abu Hamza [2006] EWCA Crim 2918; R v Saleem, Muhid, and Javed [2007] EWCA Crim 2692; R v Rahman [2008] EWCA Crim 2290. French Law of 29 July 1881 on Freedom of the Press, art 24(4); Spanish Penal Code, art 578. See O Ribbelink, ‘Apologie du Terrorisme’ and ‘Incitement to Terrorism’ (Council of Europe, Strasbourg, 2004). K Lowenstein, ‘Militant Democracy and Fundamental Rights’ (1937) 31 American Political Science Review 417 and 638, 431–2. CL Rossiter, Constitutional Dictatorship (Princeton University Press, Princeton, 1948) 38–9, 53, 60–62. See also J Eaves Jr, Emergency Powers and the Parliamentary Watchdog: Parliament and the Executive in Great Britain 1939-51 (Hansard Society, London, 1957). See C Walker, Terrorism and the Law (Oxford University Press, Oxford, 2011) ch 8.

Manifestations of extremism

The attention to counter-measures to calls to violent extremism became more determined after the attacks at Atocha, Madrid in 2004 and the London 7/7 transport bombings in 2005, when the realisation finally dawned that Western states must contend with internal militant citizens as well as the external terrorists who perpetrated the 9/11 attacks.19 As far as the UK government was concerned, this development is reflected in the most innovative element of its Countering International Terrorism strategy – CONTEST.20 As part of the ‘Prevent’ element of the CONTEST strategy, there is recognition of the need for engagement with the political elements of terrorism by: Tackling disadvantage and supporting reform – addressing structural problems in the UK and overseas that may contribute to radicalisation, such as inequalities and discrimination; deterring those who facilitate terrorism and those who encourage others to become terrorists – changing the environment in which the extremists and those radicalising others can operate; and engaging in the battle of ideas – challenging the ideologies that extremists believe can justify the use of violence, primarily by helping Muslims who wish to dispute these ideas to do so.21 The ambit, implementation, and audit of this strategic element have all proved to be difficult and controversial, as reflected in a retrenchment following the Prevent Review in 2011.22 However, the core idea remains strong that manifestations of extremism, often labelled loosely as ‘radicalisation’, are to be countered by measures ranging from hard criminalisation and proscription through to softer tactics such as counter-narratives and counselling.23 Corresponding notions are also embodied in the counter-terrorism strategies of the EU,24 the US,25 and even the UN.26 By contrast, the Australian policy in this area is less developed. In 2010, the Government’s Counter-Terrorism White Paper incorporated a ‘Resilience’ stream.27 Since then, there has been a Commonwealth Attorney General countering violent extremism program,28 which has been expanded somewhat by the ‘Living Safe Together’29 website.

19 20

21 22

23 24 25 26 27 28 29

See C Walker, ‘“Know thine enemy as thyself ”: Discerning friend from foe under anti-terrorism laws’ (2008) 32 Melbourne University Law Review 275. See Home Office, Countering International Terrorism (Cm 6888, London, 2006), as revised by Pursue, Prevent, Protect, Prepare: The United Kingdom’s Strategy for Countering International Terrorism (Cm 7547, London, 2009), The United Kingdom’s Strategy for Countering International Terrorism (Cm 7833, London, 2010), (Cm 8123, London, 2011), (Cm 8583, London, 2013), (Cm 8848, London, 2014). Ibid para.6. Home Office, Prevent Strategy (Cm 8092, London, 2011); Lord Carlile, Report to the Home Secretary of Independent Oversight of Prevent Review and Strategy (Home Office, London, 2011). For more on Prevent, see Chapter 26 (Razak, Rehman, and Skolczylis) in this book. See C Walker and J Rehman, ‘“Prevent” responses to jihadi terrorism’ in V Ramraj and others, Global Anti-Terrorism Law and Policy (2nd edn, Cambridge University Press, Cambridge, 2012). The European Union Counter-Terrorism Strategy (14469/4/05, 2005) also uses the term, ‘Prevent’. The National Strategy for Counterterrorism (Washington DC, 2006, 2011) includes countering Al Qa’ida ideology and its attempts to justify violence (2011, pp.9, 10). United Nations Global Counter Terrorism Strategy (UNGA Res 60/288, 2006). Department of Prime Minister and Cabinet Counter-terrorism White Paper – Securing Australia, Protecting Our Community (Commonwealth of Australia, Canberra, 2010) 65–8. www.ag.gov.au/NationalSecurity/Counteringviolentextremism/Pages/default.aspx accessed 31 October 2014. www.livingsafetogether.gov.au/pages/home.aspx accessed 31 October 2014. 435

Fergal Davis and Clive Walker

Tactics of response A spectrum of conceivable responses to manifestations of support for political violence may be considered. Choices between them will be affected by estimations of their impacts on the scales of effectiveness and constitutionalism (the latter including values such as the rule of law and human rights).

Engagement with proponents – interactive persuasion The most liberal tactic, which might enhance the values of constitutionalism, would be engagement with the narratives of extremism. There is, of course, a long-founded Millian belief in the notion that more good speech (about truths) will drive out (false) bad speech.30 That contention is disputed by the proponents of militant democracy, who argue that the persuasiveness of good speech in the 1930s could be diluted when confronted with either better production or marketing or with tactics of intimidation and the closure of communications channels.31 A more dubious argument is that the authority of the speaker is sufficient reason to jettison concern for liberty, which raises futile arguments about the source and strength of authority rather than concentrating on the power and legitimacy of the message.32 Of course, militant democracy is a political construct rather than a legal term of art. As such, it can easily be manipulated for good or bad in its meanings and purposes. It is not claimed here that it bears an essential meaning, but the meaning adopted in this chapter involves the endorsement that the state has a right and a duty to take action against significant forms of extremism, including terrorism. A militant democracy’s purposes include the maintenance and triumph of its own values, such as democracy, individual rights, and the rule of law. The ‘smart militant state’ must therefore work out its own forms of militant reaction, which become more or less permanent and that must incorporate only those policies that can be accommodated within fundamental values rather than displacing them even during temporary periods of ‘emergency’. The tactics of engagement may be delivered in various ways. There may be focus on the speech or on the speaker. With regard to the focus on speech, British policy makers have long recognised that counter-terrorism involves the need to ‘win the battle of hearts and minds’. In 1897, the Chief Secretary for Ireland, Gerald Balfour, articulated the Conservative Party position on Ireland as ‘killing home rule with kindness’ – a policy of combining political concessions with repressive legislation to defeat political extremism.33 In its modern form, the concept of the ‘battle for hearts and minds’ can be traced to theatres of conflict such as the

30

31

32 33

436

JS Mill: ‘the peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error’ (On Liberty (1860, version at www.gutenberg.org/files/34901/34901-h/34901-h.htm) 31). See K Lowenstein (n 16); A Sajo (ed.), Militant Democracy (Eleven International Publishing, Utrecht, 2004); J Ferejohn and P Pasquino, ‘The law of exception’ (2004) 2 International Journal of Constitutional Law 210; M Thiel (ed.), The ‘Militant Democracy’ Principle in Modern Democracies (Ashgate, Aldershot, 2009); C Walker, ‘Militant speech about terrorism in a smart militant democracy’ (2011) 80 Mississippi Law Journal 1395. S Sorial, Sedition and the Advocacy of Violence (Routledge, Abingdon, 2011). See: L Perry Curtis, Coercion and Concliliation in Ireland, 1880-1892 (Princeton University Press, Princeton, 1963) 178-79.

Manifestations of extremism

Malayan emergency from 1948 to 1960.34 This policy went further than just formulating counter-narratives on social and economic policies, though it has been argued that the policy was more rhetorical than real, with military repression being more redolent of British colonial campaigns than progressive social engineering. In contemporary times, there have been attempts within the UK to engage with localities where Muslim heritage is prevalent, as well as a focus on educational establishments and prisons as sites that might be vulnerable to manifestations of extremism.35 Beyond the UK, the Foreign and Commonwealth Office has sponsored various media teams to explain and discuss British government policies to the Islamic world, to stage seminars and colloquia abroad, and to arrange domestic tours by ‘suitable’ scholars.36 A more speaker-centric approach is based on the idea that vulnerable young people are being ‘brain-washed’ by extremists and therefore need help. A prime response is ‘Project Channel’ whereby, in twelve police force areas, responsible citizens and officials (such as in schools) provide an early warning system for the identification of extremists.37 Social intervention in the forms of counselling and engagement in approved activities are then applied. Though a non-security label is affixed to the project, attendant dangers arise of loose labelling and net-widening: ‘Which self-appointed busybodies will use what yardstick to define a “radical”, an “extremist” or “a Wahhabi”?’38 There are also limited studies of the efficacy of these types of interventions,39 with no clear counterpart in Australia.

Direct criminal offences – ex post facto gags Even in the promised land of the US Constitutional First Amendment, speech is not always free. One cannot incite or conspire to commit violence, injunctions now applied to Abu Hamza,40 and offences against the state are not entirely forgotten in this context. Treason has even been threatened.41 In 2006, a Federal grand jury issued an indictment for treason, charging AdamYahiye Gadahn with involvement in Al Qa’ida videos.42 Seditious conspiracy was charged

34

35 36 37 38 39

40 41

42

General Templer stated in 1952: ‘The answer lies not in pouring more troops into the jungle, but in the hearts and minds of the Malayan People’. See R Sunderland, Winning the Hearts and Minds of the People: Malaya 1948-1960 (RAND, Santa Monica, 1964); F Kitson, Low-Intensity Operations (Faber and Faber, London, 1971); R Stubbs, Hearts and Minds In Guerrilla Warfare (Oxford University Press, Singapore, 1989); P Dixon, ‘“Hearts and minds”? British counter-insurgency from Malaya to Iraq’ (2009) 32 Journal of Strategic Studies 353. The multitude of policies are described in Home Office, Prevent Strategy (Cm 8092, London, 2011). Home Office, The United Kingdom’s Strategy for Countering International Terrorism Annual Report 2010 (Cm 7833, London, 2010) 3.14. See Home Office, Channel: Supporting individuals vulnerable to recruitment by violent extremists (London, 2010). H Siddiqui,‘Muslim-bashing dilutes our democratic values’ Toronto Star (Toronto, 11 June 2006) A17. But see T Bjorgo and J Horgan, Leaving Terrorism Behind (Routledge, Abingdon, 2008); J Horgan, Walking Away from Terrorism (Routledge, Abingdon, 2009); H El-Said and J Harrigan, Deradicalising Violent Extremists (Routledge, Abingdon, 2012). See also US v Eric McDavid 396 Fed Appx 365 (USCA, 9th Cir, 2010), cert den 131 S Ct 2469 (2011). See SK Babb, ‘Fear and loathing in America’ (2003) 54 Hastings Law Journal 1721; TW Bell, ‘Treason, technology and freedom of expression’ (2005) 37 Arizona State Law Journal 999; CFW Larson,‘The forgotten constitutional law of treason and the enemy combatant problem’ (2006) 154 University of Pennsylvania Law Review 863. See DA Kash, ‘The United States v Adam Gadahn: A case for treason’ (2008) 37 Capital University Law Review 1. 437

Fergal Davis and Clive Walker

against Sheikh Omar Abdel Rahman arising from the 1993 World Trade Center attack and other plans.43 For countries like Australia and the UK, the response has been the almost endless invention of more targeted offences. In the UK, the principal offences are: the possession of materials or information useful to terrorism (under the Terrorism Act (TA) 2000, sections 57 and 58) and the offence of preparation of terrorism (under the TA 2006, section 5). An example is R v Muhammed, where the defendant downloaded a vast amount of information from the internet and was involved in the running of the At-Tibyaan website.44 There is also an offence of incitement of terrorism abroad under section 59 where the activity would, if committed within jurisdiction, constitute any offence listed in sub-section (2).45 The listed offences are meant to equate roughly to the definition of ‘terrorism’ in section 1 of the TA 2000. An illustration is R v Younis Tsouli who, under the tag of ‘Irhabi007’, was convicted of inciting terrorism abroad (as well as fraud) arising from his websites, which carried praise for beheadings and other terrorist violence.46 In R v Saleem,47 the defendants, including Abu Izzadeen (Trevor Brooks), were charged with inciting terrorism overseas under section 59 (and also offences under section 15) arising from DVDs of speeches in 2004, which encouraged support for the mujahideen in Fallujah and elsewhere in Iraq. Since there was no evidence that funds had been collected or terrorism committed, the sentence of four and a half years was reduced by one year. This form of direct criminalisation seems attractive as it scores respectably on the scales both of constitutionalism and effectiveness. As for constitutionalism,48 criminal prosecution might be viewed as preferable to executive-imposed measures of restraint or supervision (such as the device of ‘control orders’ in Australia and the UK)49 because it affirms individual autonomy through the requirement of mens rea, whereas collective risk to public or state security predominates in executive measures. The individuation of crime might thus be esteemed as an affirmation of the values of human autonomy and equality.50 There is also affirmation of system legality, accountability, and due process by way of open court process than is associated with executive measures. As for effectiveness, criminalisation has become the primary mode of state intervention, and it is associated with a high conviction rate and savage penalties.51

43 44 45 46 47 48

49 50

51

438

United States v Rahman 189 F3d 88 (1999) 94. [2010] EWCA Crim 227. Home Office and Northern Ireland Office, Legislation against Terrorism (Cm 4178, London, 1998), paras 4.18, 4.19. Attorney General's References (Nos 85, 86, and 87 of 2007), R v Tsouli [2007] EWCA Crim 3300. [2009] EWCA Crim 920. See C Walker, ‘The Impact of Contemporary Security Agendas against Terrorism on the Substantive Criminal Law’ in A Masferrer, (ed.), Post 9/11 and the State of Permanent Legal Emergency (Springer, Dordrecht, 2012). See C Walker, ‘The reshaping of control orders in the United Kingdom: Time for a fairer go, Australia!’ (2013) 37 Melbourne University Law Review 143. See MA Drumbi, ‘The expressive value of prosecuting and punishing terrorists’ (2007) 75 George Washington Law Review 1165 at 1170; K Roach,‘The criminal law and terrorism’ in V Ramraj and others Global Anti-terrorism Law and Policy (Cambridge University Press, Cambridge, 2005) 137. See C Walker, ‘Terrorism prosecution in the United Kingdom: Lessons in the manipulation of criminalisation and due process’ in F ni Aoláin and O Gross, Guantanamo and Beyond: Exceptional Courts and Military Commissions in Comparative and Policy Perspective (Cambridge University Press, Cambridge, 2013).

Manifestations of extremism

Indirect criminal offences – chilling effects More troubling is the next category of criminal responses to manifestations of extremism, which we shall label as ‘indirect criminal offences’. For the UK, the principal and highly controversial examples are found in the TA 2006, section 1. The core offence in section 1(1) relates to the publication of statements that are ‘likely to be understood by some or all of the members of the public to whom it is published as a direct or indirect encouragement or other inducement to the commission, preparation or instigation of acts of terrorism’. Secondary dissemination of terrorist publications with intent or recklessness as to direct or indirect encouragement to acts of terrorism is dealt with in sections 2 and 3. The most controversial aspect of the offence is indirect encouragement, and so Parliament sought to apply further clarifications and limits.52 By sub-section (3), the indirect encouragement of terrorism includes a statement that ‘glorifies’ the commission or preparation of acts of terrorism or specified offences (either in their actual commission or in principle) but only if members of the public could reasonably be expected to infer that the glorified conduct that should be ‘emulated by them in existing circumstances’. It follows that it is no defence to show that an actual audience did not believe there was glorification, though this circumstance can be pleaded to direct incitement or other indirect incitements. ‘Glorify’ is partly defined in section 20(2) as including ‘praise or celebration’. An all-embracing working (non-legal) definition was proffered by a Home Office Minister as follows: ‘To glorify is to describe or represent as admirable, especially unjustifiably or undeservedly’.53 Section 20(7) clarifies that references to conduct to be ‘emulated in existing circumstances’ include references to conduct that is illustrative of a type of conduct that should be so emulated. For example, a statement glorifying the bombing of a bus at Tavistock Square on 7 July 2005 and encouraging repeat performances may be interpreted as an encouragement to emulate by attacks on the transport network in general. The government’s advice for speakers wishing to avoid glorification is that they should ‘preface their remarks with the statement that they do not condone or endorse acts of terrorism or encouraging people to kill others. They could express sympathy and even support for the activity, but not in a way that encourages people to commit acts of terrorism’.54 This ‘love–hate’ formula – love the cause but hate violent means – is not, however, a magic incantation that wards off all iniquity. There is no illumination of the meaning of ‘indirect incitement’ beyond the concept of glorification.55 Presumably, an incitement is not direct when less than an explicit stimulus but still predictably steering towards an outcome. Within this residue of indirect incitement, any requirement of emulation is absent. The overall impact is to criminalise generalised and public encouragements – that terrorism would be a good thing, without stating where or when or against whom. How this differs from ‘normal’ incitement, which in the UK is set out in the Serious Crime Act 2007, Part II, remains uncertain. The ‘normal’ law does not use the terms ‘direct’ and ‘indirect’ but does occasionally 52 53 54 55

See HL 28 February 2006, vol 679, col 136; HL 22 March 2006, vol 680, col 241. HL 17 January 2006, vol 677, col 583, Baroness Scotland. HL 9 November 2005, vol 439, col 429, Hazel Blears. See also HL, 5 December 2005, vol 676, col 458, Baroness Scotland. See A Hunt, ‘Criminal prohibitions on direct and indirect encouragement of terrorism’ [2007] Criminal Law Review 441, 452; T Choudhury,‘The Terrorism Act 2006: Discouraging terrorism’ in I Hare and J Weinstein (eds), Extreme Speech and Democracy (Oxford University Press, Oxford, 2009) 468. 439

Fergal Davis and Clive Walker

accord a wide meaning to ‘encourage’, such as in cases of speed trap detection machines or books giving advice on the production of cannabis.56 Perhaps the absence of any requirement of intended emulation outside of the realm of glorification could be one key difference, though the absence of actual audience reaction is less of a distinction under the 2007 Act.57 In R v Rahman, R v Mohammed,58 the conviction of Rahman under TA 2006, section 2(2)(f), arose from an instruction to disseminate to six named persons a letter containing instructions for the distribution of Al Qa’ida propaganda and a description of fighting. Mohammed sold Islamist materials at stalls in the North of England, some which breached section 2. The Court of Appeal gave guidance that: any reduction in sentence for recklessness rather than intention would be small; the volume and content of the material disseminated would be relevant; section 2 offences are likely to be less serious than breaches of sections 57 and 58 of TA 2000.59 The conviction under section 2 of Shella Roma underlines the sentencing point. A three-year community order sufficed for seeking to print and distribute an extremist pamphlet.60 Likewise, the ‘Blackburn Resistance’ consisting of Ishaq Kanmi, Abbas Iqbal, and Ilyas Iqbal, were accused of promoting through internet forums martyrdom operations against Prime Ministers Blair and Brown, as well as filming for propaganda purposes ‘military’ exercises in a Blackburn Park.61 Rather than action under sections 1 to 3 (which has been rare), a more practical enforcement measure is the establishment in 2010 by Home Office of a website that invites members of the public to report internet pages that carry messages of hate, extremism, and terrorism.62 The reports are channelled to the police, though whether the sites are closed under section 3 may depend on intelligence-gathering considerations as well as whether site owners (often US based) will cooperate.63 By comparison, the notion of apologie du terrorisme appeared in some European jurisdictions well before 2001.64 Thus, the French Law of 29 July 1881 on Freedom of the Press, article 24(4), makes it an offence to utter an apologie for attacks on human life or criminal damage that endangers life. The Spanish Penal Code, article 578, defines apology as praise of specified (terrorist) offences or bringing about the discredit, contempt, or humiliation of victims or their families. The offence itself, in article 18(2) requires the presentation of ideas or doctrines that praise or justify a crime or its perpetrator, but in a way that, by its nature and circumstances, amounts to a direct incitement to commit an offence. Neither jurisdiction uses the offence frequently,65 but its deployment in Spain has resulted in the closure of Basque newspapers.66

56 57 58 59 60 61 62 63 64 65 66 440

Invicta Plastics Ltd v Clare [1976] RTR 251; R v Marlow [1998] 1 Cr App Rep (S) 273; Hunt (n 55) 453-5. See Law Commission, Inchoate Liability for Assisting and Encouraging Crime (Report no 300, Cm 6878, London, 2006) para 1.3. [2008] EWCA Crim 1465. Ibid at [5], [7], [41]. The sentences were five and a half years (Rahman) and two years (Mohammed). The Times (London, 31 March, 2009) 17 (Manchester Crown Court). Kanmi was sentenced to three years, Abbas Iqbal to two years, and Ilyas Iqbal to 15 months under s 58: The Times (London, 20 March 2010) 40, (London, 11 May 2010) 23. https://reporting.direct.gov.uk/, accessed 31 October 2014. Twenty-one thousand pieces of ‘illegal’ online terrorist content were removed from 2010 to 2014: Home Office, CONTEST (Cm 8848, London, 2014) para 2.19. See O Ribbelink, ‘Apologie du Terrorisme’ and ‘Incitement to Terrorism’ (Council of Europe, Strasbourg, 2004) 7. Ibid 35, 39. See I Cram, ‘Regulating the media’ (2006) 18 Terrorism & Political Violence 335.

Manifestations of extremism

The Canadian House of Commons Standing Committee on Public Safety and National Security called for an offence of glorification in 2007, but none has been enacted.67 For its part, the Australian Law Reform Commission firmly rejected an offence of ‘encouragement’ or ‘glorification’ of terrorism; such an offence would be too vague and would amount to ‘an unwarranted incursion into freedom of expression and the constitutionally protected freedom of political discourse’.68 The Law Reform Commission’s reluctance may, in part, be explained by the fact that the Australian Criminal Code already contains significant sedition laws.69 In addition, publications, films, and computer games can be refused classification under the Classification (Publications, Films and Computer Games) Amendment (Terrorist Material) Act 2007 if deemed to advocate the doing of a terrorist act. This system, operated through the Office of Film and Literature Classification, appears unduly cumbersome and blunt since it fails to take account of the circumstances of publication and consumption.70 There may be two aspects to a critique of the banning of militant speech about terrorism in the ways pursued by the UK’s TA 2006. The first is to assess whether these are constitutionally legitimate tactics for a smart militant democracy. A ban should be ruled out if it infringes basic values and thereby delegitimizes the state response. The second approach might inquire as to whether it is an effective method and whether it achieves its objectives in a proportionate way. The first point was intensively debated at the time of enactment, with substantial regard to the values of the rule of law and expressive rights. However, evidence on the second point points towards ineffectiveness: there have been just eight convictions up to 31 March 2013, and the rate of web interventions has had to increase.71

Proscription – ex ante closure Proscribing an organisation constitutes a pre-emptive attempt at disrupting the activities of a named group. The UK has again been a prime exponent, represented by Part II of the TA 2000. It permits the proscription of selected organisations and then, on the back of that device, criminalises membership and specified activities. These are time-honoured devices – the IRA has been proscribed since 1918 and Al Qa’ida since February 2001.72 The long-established format of proscription required a group connection to what one might call ‘live’ terrorism. Thus, by section 3(4), orders can be made against a group if the Minister ‘believes that it is concerned in terrorism’, a belief that may be derived under section 3(5) if an organisation (a) commits or participates in acts of terrorism; (b) prepares for terrorism; (c) promotes or encourages terrorism; or (d) is otherwise concerned in terrorism. However, the TA 2006 granted a second tranche of proscription powers. That Act essentially extends the basis for militant responses from deeds to words. It represents one of a number of policies73 that reflect

67 68 69 70

71 72

73

Rights, Limits, Security (Ottawa, 2007) 12. Fighting Words (Report 104, Canberra 2006) para 6.24. Criminal Code, s 80.2. See further B Saul, ‘Speaking of Terror: Criminalising Incitement to Violence’ (2008) 28(3) UNSW Law Journal 868, 872–5. See www.classification.gov.au accessed 31 October 2014, for its decisions in 2006 on The Absent Obligation (allowed) and Join the Caravan (refused). Repeal is recommended by the Law Council of Australia, Anti-Terrorism Reform Project (Canberra, 2009) para 6.3.3. See C Walker, The Anti-Terrorism Legislation (3rd edn, Oxford University Press, Oxford 2014) ch 2. For pre-2000 history, see C Walker, The Prevention of Terrorism in British Law (2nd edn, Manchester University Press, Manchester, 1992) ch 5. Post-2000, see Walker The Prevention of Terrorism in British Law (n 71). See C Walker, 'The treatment of foreign terror suspects' (2007) 70 Modern Law Review 427. 441

Fergal Davis and Clive Walker

the response to fears about the manifestations of extremism in the aftermath of the 7/7 bombings in London. As a result, the Terrorism Act 2006 extends proscription to groups engaging in glorification. Inflation in the usage of these proscription powers has been evident in recent years. In February 2001, when the TA 2000 commenced, fourteen Irish groups and twenty-one non-Irish groups were proscribed; by June 2014, there were still fourteen Irish groups, but by then sixty non-Irish groups plus two glorification groups (and several offshoots).74 The militant nature of Australia’s democracy is equally apparent from its historical reliance on banning organisations perceived to pose a threat to the state. The use of proscription as a method of defending Australian democracy can be traced back to the early years of the federation.75 The Communist Party Dissolution Act 1950 (Cth) – which was ultimately declared to be unconstitutional by the High Court of Australia76 – is the most notable example of the historic practice.77 Division 102 and the UN Charter Act are the current iterations of that approach, and Australia’s ongoing relationship with militant democracy is evident from the wider operation of Australian counter-terrorism laws.78 As first enacted, under Division 102, the Attorney-General could only proscribe organisations identified as terrorist organisations by the United Nations Security Council79 though that restriction was later removed.80 Under Division 102 as it currently exists, an organisation may be proscribed by regulation made by the Governor-General. Such a regulation is conclusive proof in court proceedings that the organisation is in fact a terrorist organisation. The Attorney-General may advise the Governor-General to make a regulation if satisfied on reasonable grounds that the organisation either (a) ‘is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act’ or (b) ‘advocates the doing of a terrorist act (whether or not the terrorist act has occurred or will occur)’.81 Australia’s Independent National Security Legislation Monitor has noted that there is no ‘policy reason’ for the difference in definitions of a ‘terrorist act’ operating under the UN Charter and Criminal Code proscription regimes.82 If anything, such differences serve only to confuse matters. A particular concern arises from the term ‘advocates’ in Division 102. The definition of advocates includes directly or indirectly urging, counselling, or providing instruction on the doing of a terrorist act or even if the organisation ‘directly praises the doing of a terrorist act in circumstances where there is a risk that such praise might have the effect of leading a person (regardless of his or her age or any mental impairment that the person might suffer) to engage in a terrorist

74 75 76 77 78

79 80 81 82

442

See www.gov.uk/government/uploads/system/uploads/attachment_data/file/324603/20140627List_of_Proscribed_organisations_WEBSITE_final.pdf accessed 31 October 2014. See A Lynch, N McGarrity, and G Williams, ‘Lessons from the history of the proscription of terrorist and other organisations by the Australian Parliament’ (2009) 13 Legal History 25. Australian Communist Party v Commonwealth (Communist Party Case) (1951) 83 CLR 1. See A Lynch, N McGarrity, and G Williams, ‘The proscription of terrorist organisations in Australia’ (2009) 37 Federal Law Review 1. See A Lynch, E McDonald, and G Williams (eds), Law and Liberty in the War on Terror (Federation Press, Annandale 2007); A Conte, Human Rights in the Prevention and Punishment of Terrorism (Springer, Heidelberg, 2010); A Lynch, N McGarrity, and G Williams, Counter-Terrorism and Beyond (Routledge, Abingdon, 2010). G Williams, ‘Anti-Terror Legislation in Australia and New Zealand’ in V Ramraj and others (n 23) 541, 550. Criminal Code Amendment (Terrorist Organisations) Act 2004 (Cth). Criminal Code s 102.1(2). B Walker, Declassified Annual Report Independent National Security Legislation Monitor (Commonwealth of Australia, Canberra 2013) 20.

Manifestations of extremism

act’.83 The scope of this definition is extremely wide. The problematic nature of such a wide definition becomes apparent when we consider that the executive branch of government dominates both Division 102 and the UN Charter Act, and both regimes suffer from an absence of procedural fairness and limited avenues for independent review.84 It is apparent from the review above that proscription – as operating in Australia – places a powerful tool in the hands of the executive; utilises an overly broad definition of what constitutes a terrorist organisation; and suffers from inadequate procedures for review of that executive power. Despite such inadequacies it forms the cornerstone of the criminal justice response to terrorism in Australia. In October 2007 a senior counter-terrorism officer of the Australian Federal Police, Kemuel Lam Paktsun, told a New South Wales Court that it had been directed to ‘lay as many charges under the new terrorist legislation against as many suspects as possible because we wanted to use the new legislation’.85 As of February 2014, thirty-eight people have been charged with terrorism offences. None has faced charges of engaging in a terrorist act – all have been charged with inchoate offences under either Division 101 or Division 102 of the Criminal Code.86 Thus the criminal justice response to terrorism in Australia is inextricably bound up with the proscription of extremist organisations. The Northern Irish experience highlights two further difficulties associated with models of proscription. In the Irish context, terrorist groups have generally sought legitimacy for their armed struggle through associating their current campaign with historical events. Thus, in July 2012 the Real IRA (RIRA) merged with Republican Action Against Drugs and claimed to have formed a ‘unified structure, under a single leadership’. The new organization also appropriated the title Óglaigh na hÉireann, the IRA.87 The title ‘Óglaigh na hÉireann, the IRA’ was previously used by the Provisional IRA, which declared a permanent ceasefire in 1996 in the build up to the Belfast Agreement.88 De-proscribing the title, ‘Óglaigh na hÉireann, the IRA’, seems unlikely in that context – which makes it impossible for the PIRA to transform itself into a non-criminal organisation. Similarly the organisation Saor Éire effectively disbanded in 1973. Even prior to its collapse Saor Éire lacked a coherent organisational structure: Saor Éire was not a homogenous organization. It had no centralized military command, let alone a common political leadership. It was a loose alliance of diverse groups which on

83

84

85 86 87 88

Criminal Code, s 102.1(1A). The Classification (Publications, Films and Computer Games) Amendment (Terrorist Material) Act 2007 (Cth) also introduced a new section 9A into the Classification (Publications, Films and Computer Games) Act 1995 (Cth). This provides that a publication, film or computer game that advocates the doing of a terrorist act must be refused classification (that is, banned). The definition of ‘advocates’ is in the same terms as s 102.1(1A). See JC Tham, ‘Possible constitutional objections to the powers to ban “terrorist” organisations’ (2004) 27 University of New South Wales Law Journal 482; R Douglas, ‘Proscribing terrorist organisations: legislation and practice in five English-speaking democracies’ (2008) 32 Criminal Law Journal 90; A Lynch, N McGarrity, and G Williams,‘The Proscription of Terrorist Organisations in Australia’ (2009) 37 Federal Law Review 1. S Neighbour, ‘Charge suspects to test terror laws’, The Australian (Sydney, 13 November 2007). F Davis, N McGarritty, and G Williams, ‘Counter-Terrorism Law: Australia’ in K Roach (ed.) Comparative Counter-Terrorism Law (Cambridge University Press, Cambridge 2014). H McDonald, ‘Republican dissidents join forces to form a new IRA’ The Guardian (London, 27 July 2012). (Cm 3883, London 1998). 443

Fergal Davis and Clive Walker

occasion co-operated together in joint actions and used the umbrella name Saor Éire. Needless to say, the criminal element used the name as a cover for their own exploits.89 However, it remains proscribed under UK law and, given its history as a Trotskyite Irish Republican terrorist organisation of substantial lineage, it is likely that its title would be attractive to contemporary republican terrorist groups. A related weakness of the proscription model derives from its inability to cope with the emergence of alias organisations. The plethora of organisation styling themselves the ‘IRA’ was noted above, and this phenomenon presents a challenge for an approach to counter-terrorism, which is built upon the precise listing of illegal groups. In R v Z,90 for example, the accused were charged with membership of a proscribed organisation, namely, the Real IRA. They countered that the Real IRA was not, in fact, proscribed. However, the court read the listing of the IRA as including any offshoots. Lord Bingham noted that the ‘fissiparous nature of republican paramilitarism was already evident’ by 1973 when the IRA was proscribed by the UK Parliament91 and concluded that as a result it was safe to assume that legislators had intended the label, IRA, to cover that organisation and any associated splinter groups.92 In practical terms, such an approach seems logical (and convenient). To adopt any other approach would undermine the legislation by allowing groups to avoid legal consequences through the adoption of a prefix (Real, Continuity, and so on). However, the approach is not without its problems, including that this ‘reading-in’ approach might be said to lack transparency. Australia’s Independent National Security Legislation Monitor has approached the issue of aliases in a different way. He has advocated an expedited executive procedure for adding aliases to the list of proscribed organisation. This approach has also been adopted in the UK,93 but it undermines proscription by allowing reading into the list in a post hoc fashion and without democratic accountability in that the statutory instrument does not require affirmative approval, unlike a normal proscription order. The attraction of proscription to the executive is undeniable. Proscription is a useful means through which governments can short circuit the criminal process by establishing matters of fact through executive order – proscribing an organisation makes that organisation unlawful. But much of the purpose of proscription is symbolic94 — to express society’s collective revulsion at violence as a political strategy as well as its determination to stop to it. It is also important to realise that proscription serves symbolic foreign policy purposes – to express solidarity with other governments, even where the group in question has little or no discernible impact in the domestic jurisdiction. As a result, many of the UK listed groups are banned in part or even primarily because other countries have proscribed them.

89

90

91 92 93 94

444

‘Militants Leave Saor Eire’ (June, 1973) 2(2) The Plough. See: L O’Ruaric, ‘A Little Known Republican Group: Saor Eire’, the Blanket (13 January 2005) http://indiamond6.ulib.iupui.edu:81/ lor1401051g.html accessed 31 October 2014; F Davis, The History and Development of the Special Criminal Court 1922-2014 (2nd edn, Bloomsbury Professional, Dublin 2014) [9.07]. [2005] UKHL 35. See C Walker,‘Commentary’ [2005] Criminal Law Review 985; F Bennion, ‘Is the Real IRA a proscribed organization?’ (2004) 168 Justice of the Peace 472, ‘The Real IRA is proscribed after all’ (2004) 168 Justice of the Peace 694. Compare DPP v Campbell [2005] IECCA 27. Northern Ireland (Emergency Provisions) Act 1973, s 19 and Sch 2. Ibid [20] (Lord Bingham). TA 2006, s 22. See the view of Home Secretary, Roy Jenkins, IRA Terrorism in Great Britain (C(74)139, National Archives, London 1974) para 3.

Manifestations of extremism

There are several key problems with proscription. First, proscription places a powerful tool in the hands of the executive, but scrutinising the operation of that system is difficult. The Australian model highlights the potential for inadequate review of such executive power, notwithstanding the Communist Party case. In the UK, no formal review or sunset clause applies.95 The second problem is that, once proscribed, it can be difficult for the executive to deescalate. Removing an organisation from the banned list can be problematic – particularly in the context of conflicts with an extended historical perspective. Only one successful application for deproscription has been made in the UK,96 though the prospect of the costs and notoriety involved in the process of review for any champion of a proscribed group is probably a bigger deterrent. A third problem is that the post-modern emanation of ‘new’ terrorism encourages fluidity, which makes the ascription of responsibility to a defined organisation a more contestable exercise. Must every remark by every member be taken as ‘official’ policy, or must impugned statements emanate from prominent or multiple members?97 A related difficulty arises from the ability of terrorist organisation to adopt aliases. Particularly within the context of ‘new’ terrorism, there are few barriers preventing a proscribed organisation from simply closing down one operation and starting another. Little is invested in the impugned label, and if the generic message can be disseminated under a novel, less-toxic label, then it is easier for the extremists to go ahead on that basis than for the authorities to undertake formal legal reactions. Fourth, it is difficult to know where to draw the line between tolerance and militancy, especially in the case of groups condemned on grounds of glorification. Examples which have been much debated in the UK are Hizb ut-Tahrir,98 which ‘remains an organization of concern and is kept under close review’,99 and the Muslim Brotherhood.100

Conclusion The official assessment is that ‘the UK faces a serious and sustained threat from terrorism’.101 The Joint Terrorism Analysis Centre in the UK102 views the current threat level from international terrorism as ‘SUBSTANTIAL’ while for Northern Ireland-related terrorism the level in Northern Ireland is ‘SEVERE’ and for Great Britain is ‘MODERATE’. ‘SEVERE’ means

95

96 97 98

99 100

101 102

D Anderson, Report on the Operation in 2011 of the Terrorism Act 2000 and Part I of the Terrorism Act 2006 (Home Office, London 2012) paras 4.52, 4.66; Home Affairs Committee, The Roots of Violent Radicalisation (HC 2010-12, 1446) para 87 (for the non-committal response see (Cm 8368, London, 2012) para 75. Compare in Australia, A Lynch, N McGarrity, and G Williams, ‘The proscription of terrorist organisations in Australia’ (2009) 37 Federal Law Review 1, 126. See Secretary of State for the Home Department v Lord Alton of Liverpool [2008] EWCA Civ 443. B Saul (n 69) 880. See E Karajiannis and C McCauley, ‘Hizb ut Tahir’ (2006) 18 Terrorism & Political Violence 315; H Ahmed, and H Stuart, Hizb ut-Tahrir: Ideology and Strategy (Centre for Social Cohesion, London, 2009). HL 19 February 2008, vol 472, col 588W, Tony McNulty. The position was confirmed at HL 5 January 2010, vol 716, col 86wa. N Watt, ‘David Cameron orders inquiry into activities of Muslim Brotherhood’ The Guardian (London, 1 April 2014). See further L Vidino, The Muslim Brotherhood in the West (Columbia UP, New York, 2010). Cabinet Office, National Risk Register of Civil Emergencies 2010 edition (London, 2010) para.2.77. www.mi5.gov.uk/home/about-us/who-we-are/organisation/joint-terrorism-analysis-centre.html accessed 31 October 2014. 445

Fergal Davis and Clive Walker

that a terrorist attack is highly likely; ‘SUBSTANTIAL’ that it is a strong possibility; ‘MODERATE’ that an attack is possible, but unlikely. Since September 2014, the Australian National Threat Assessment Centre considers that Australia is at HIGH level of alert under which ‘terrorist attack is likely’.103 Within this heightened sense of public vulnerability, an emphasis on community safety will have mounting cogency to police and politicians, and so further pre-emptive measures can be anticipated. Their attractiveness is driven especially by the emergence of ‘neighbour’ terrorism and by the impetus towards responses to the anticipatory risk of attack rather than perpetrated crime. But with risk-based responses comes uncertainty, giving rise to the inevitability that innocent persons and communities will be unfairly affected and that the discomfort of state intervention will not easily be confined to exceptional situations bounded by temporal, spatial, or communal divisions.104 Even with that price being paid, and even with communities onside, one can be certain that not every catastrophe will be averted in the foreseeable future.105

103 104 105

446

www.nationalsecurity.gov.au/Securityandyourcommunity/Pages/NationalTerrorismPublicAlert System.aspx accessed 6 April 2015. O Gross, ‘Chaos and rules’ (2003) 112 Yale Law Journal 1011, 1073–89. House of Commons Defence Select Committee, UK national security and resilience (HC 2007-08, 718) 21 October 2008 q.63, Lord West.

29 The penology of terrorism Catherine Appleton and Clive Walker

Introduction As a consequence of the emphasis in many states upon the criminalisation of terrorism (as explored in Chapters 13 and 14), and given relatively high conviction rates for those cases that do reach the criminal courts, growing attention is turning to the penology of terrorism. Three responses have been triggered in relation to terrorism prisoners in the UK, which will be the main focus of this chapter. The first aspect concerns the categorisation of terrorist prisoners as especially dangerous and their consequent assignment to forms of deterrent or indeterminate sentences. One other disturbing aspect of this trend is that not all terrorists are treated equally. Terrorist activity in Northern Ireland receives much more lenient treatment than equivalent activity in Britain. The second aspect concerns the development of prison regimes that address convicted terrorists’ dangerousness within that setting. Here, the authorities will certainly want to annul or at least confine the influence of ‘celebrity’ prisoners within institutions that are receiving increasing numbers of young Muslim males. They will also wish to consider the application of ‘de-radicalisation’ therapies in the UK, learning from experiences in other jurisdictions as diverse as Northern Ireland, Saudi Arabia, and Indonesia. The third aspect concerns post-release treatment. Because there is diminished faith in the impact of prison on ideologically driven prisoners, special restrictions are applied on release, such as notification and restrictions on foreign travel. The overall aim of this chapter is to discuss the emergence of a distinctive penology of terrorism in recent years, comprising adjustments to punishment and penal regimes. It will consider the development of sentencing and criminal justice policy towards individuals convicted of offences linked to political violence in recent decades, and the challenges posed to authorities in dealing with extremist and radicalised individuals, both behind prison walls and following release. It will argue that the penology of terrorism in the UK reflects above all retribution and public protection, with the latter growing in importance.

The sentencing of terrorist convicts In R v Martin, Patrick Hugh Sean Martin and others were members of a Provisional IRA unit who had plotted in 1996 to cause explosions at six main sub-stations in London and South East 447

Catherine Appleton and Clive Walker

England.1 Early arrests prevented the execution of their plans. The Court of Appeal viewed the bracket of 20 to 35 years as embracing most cases, depending upon whether the primary purpose was endangering life or to cause serious injury to property. In the present case, death and injury were not the primary objects of the plan, though were a likely by-product. Accordingly some reduction should be made in the sentence of 35 years imposed by the trial judge, and a sentence of 28 years’ imprisonment was substituted. However, that reduction should not be confused with leniency, as Lord Chief Justice Bingham (as he then was), stated,‘[i]n passing sentence for the most serious terrorist offences, the object of the Court will be to punish, deter and incapacitate: rehabilitation is likely to play a minor (if any) part’.2 Since Al Qa’ida’s attacks of 11 September 2001, Lord Bingham’s conception of the penal system’s role in terrorism cases has attracted considerable impetus in the UK and elsewhere.3 The result is that terrorist prisoners can expect to serve terms that are both longer and more discretionary than for most other forms of offending. There are obvious implications for the prisoners, their families, and their communities, but whether the trend is positive in the amelioration of terrorism is less clear. A potential limitation of the penal aims of Lord Bingham is that the expected deterrent impacts of criminal justice sanctions may not be secured in the face of perpetrators intent on killing themselves in the act of terrorism4 or at least accepting a high risk of death through handling explosives or being shot by the security forces.5 In addition, a failure to deter might suggest not a departure from criminal justice but its reformulation towards incapacitation. In fact, both deterrence and incapacitation for the sake of public security are manifest in the penology of terrorism.6 The denunciatory function of criminal justice is also to the fore.

General sentencing laws applied to terrorism Most laws affecting the sentencing of terrorist prisoners are found beyond the counterterrorism legislation in either policy statements about minimum terms in life sentences7 or in court sentencing decisions such as R v Martin. The analysis to follow will adopt a categorisation by offence group and also over time. To avoid further complications, only adult offenders will be considered, and repeat offending and extended sentences will also be ignored.8 Four types of sentence of imprisonment commonly affect terrorist cases.9

1 2 3 4 5

6 7 8 9

448

(1999) 1 Cr App 477. Ibid 489. For example, see Lodhi v R [2007] NSWCCA 360 [92]-[93]; R v Elomar and others [2010] NSWSC 10, [78]-[79] (both Australian cases). Report of the Official Account of the Bombings in London on 7 July 2005 (HC 2005–06, 1087) para 7. D McKittrick, Lost Lives (Mainstream, Edinburgh, 1999) computes that the security forces were responsible for 367 deaths out of 3,636 security related deaths in Northern Ireland between 1969 and 1999. See M S-A Wattad,‘Is terrorism a crime or an aggravating factor in sentencing?’ (2006) 4 Journal of International Criminal Justice 1017. See Criminal Justice Act 2003 (CJA 2003), sch 21; Amendment No 6 to the Consolidated Criminal Practice Direction [2004] 2 Cr App R 24 IV.49.33. CJA 2003 ss 225, 227, sch 15A. See Murder (Abolition of the Death Penalty) Act 1965; CJA 2003, Pt XII; Parole Board Rules 2004; Directions to the Parole Board issued by the Secretary of State under the CJA 1991, s 32(6) or s 239(6); Ministry of Justice, Prison Service Order 4700, Indeterminate Sentence Manual (London, 2009).

The penology of terrorism

First are mandatory life sentences for murder, as well as discretionary life sentences that apply, for example, to explosives offences. In that category are two commonly used offences under the Explosive Substances Act 1883, section 2 (the causing of an explosion of a nature likely to endanger life or to cause serious injury to property)10 and section 3(1) (actions with intent to cause, or conspiring to cause, an explosion of a nature likely to endanger life or to cause serious injury to property or making or possessing an explosive substance with intent by means thereof to endanger life or cause serious injury to property).11 Next, there are determinate (fixed-term) sentences that are subject to release on parole before the end of the term. Under the CJA 2003, section 225, if the person is convicted of an offence for which the maximum penalty is life, then a life sentence must be imposed; if the offence does not carry life imprisonment, then it may be imposed where the culpability of the offender is particularly high or the offence itself is particularly serious.12 Next, there are determinate sentences for offences committed on or after 4 April 2005, which were subject to the CJA 2003, section 224. These fixed-term sentences became subject to ‘Imprisonment for Public Protection’ (IPP) for ‘dangerous offenders’ convicted of a ‘serious offence’ and who pose a significant risk of serious harm.13 A specified offence (which must be punishable with a maximum of life imprisonment or imprisonment for ten years or more) under schedule 15 became a ‘serious offence’ because it is a ‘specified violent offence’ within section 227.14 The Coroners and Justice Act 2009, sections 138 and 139 (not in Scotland), amended the specified ‘violent offences’ to expressly encompass a wide range of terrorism legislation offences. The Legal Aid, Sentencing and Punishment of Offenders Act 2012, section 123(c)15 repealed this IPP system, meaning that judges and probation now have restored discretion. But the change is not retrospective. The 2012 Act contains instead in section 122 a scheme for life sentences for second serious offences listed in Schedule 15B of the 2003 Act, unless the court is of the opinion that it would be unjust in all circumstances. Next, sections 124 and 125 deal with extended sentences for specified violent or sexual offences. Some terrorism offences were dropped from Schedule 15B. Life sentence prisoners will be subjected to a ‘minimum term’ (formerly a ‘tariff ’), which must now be set by the court,16 as an estimate of when the punitive elements (retribution and deterrence) of the sentence will have been satisfied. When setting a minimum term, the court should normally set one half of the notional determinate sentence. For IPP sentences, the notional determinate sentence should not be greater than the maximum penalty for the offence. When that time has passed, the case can be referred to the Parole Board, which presumes that release will not be directed unless the level of risk is acceptable.17 From time to time, guidelines have been issued and have always treated terrorism as an especially serious factor. The 1983 version adopted a twenty-year period for mandatory life prisoners in terrorist

10 11 12 13

14 15 16 17

See R v McDonald (William) [2001] EWCA Crim 2842. See R v Khyam [2008] EWCA Crim 1612. See Criminal Justice and Immigration Act 2008, s 13. Sentencing Guidelines Council, Dangerous Offenders (SGC, London, 2008) para 6.1.2. For Scotland, see Criminal Justice (Scotland) Act 2003, s 1(1); Risk Management Authority, Risk Management of Offenders Subject to an Order for Lifelong Restriction (Paisley, 2007). See also Criminal Justice (Northern Ireland) Order 2008, SI 2008/1216. For the reasons, see Hansard (House of Commons) vol 534 col 787 1 November 2011. See CJA 2003, s 269, for mandatory life sentences. See Crime Sentences Act 1997, s 28 (as amended). 449

Catherine Appleton and Clive Walker

cases.18 The Practice Statement (Crime: Life Sentences) 200219 still depicts some offences, including terrorism, as so grave that a ‘minimum term’ of twenty years and upwards could be appropriate. Various sentencing practices as applied to terrorism reached a degree of maturity around the late 1980s. Conspiracy to murder and attempted murder commonly merited determinate sentences of between twenty and twenty-five years.20 Cases of international terrorism have often attracted even heavier determinate sentences.21 Forty-five years was imposed in R v Hindawi,22 where the appellant had attempted to blow up a plane by hiding a bomb in the suitcase of his unwitting girlfriend. In R v Al-Banna,23 sentences of up to thirty-five years were imposed for a Palestine National Liberation Movement attempt to assassinate the Israeli ambassador. In R v Basra, the court imposed thirty-five years for arranging the murders of two political opponents within Sikh political factions.24 However, in contrast to contemporary practices, the court overturned a life sentence since the risk was not viewed as indeterminate. The minimum sentence for Abdelbaset Al-Megrahi’s involvement in the Lockerbie bombing was twenty-seven years (under appeal when he was released).25 Explosives and firearms offences eventually attracted equally severe determinate sentences. Early sentences, such as in R v Al-Mograbi and Cull26 (twelve years for an attack outside the Iraqi embassy), and R v Assali27 (nine years) were soon surpassed. In R v Anderson,28 Patrick Joseph Magee, the leader of the IRA group responsible for the bombing of the Grand Hotel, Brighton, in 1984, was sentenced to eight concurrent life terms with a recommendation that he serve a minimum of thirty-five years. More common sentences were in the environs of twenty years, with sentences in Northern Ireland (such as R v O’Reilly and R v Payne)29 being slightly lighter than those in Britain (such as R v Mullen).30 Towards the end of the Irish Republican campaign in Britain, as already noted, the Court of Appeal stated in R v Martin that a twenty to thirty year minimum term was normal for murder in aggravated form but a conspiracy not designed to take life should be distinguished.

18 19 20

21 22 23 24 25

26 27 28 29 30

450

Hansard (House of Commons) vol 49, cols 505–7, 30 November 1983, Leon Brittan; In re Findlay [1985] AC 318; Pierson v Secretary of State for the Home Department [1998] AC 539. [2002] 1 WLR 1789 (see now Amendment No 6 to the Consolidated Criminal Practice Direction [2004] 2 Cr App R 24 IV.49.33). For Northern Ireland, see R v McCandless [2004] NICA 1. See R v Murphy and McKinley [1993] 4 NIJB 42; R v Secretary of State for the Home Department, ex parte McCartney (1994) The Times 25 May 1994; R v Murray [1995] 6 BNIL n 88; R v Magee and O’Hagan [1996] 5 BNIL n 94. But see R (Nejad) v Secretary of State for the Home Department [2004] EWCA Civ 33 (22 years). (1988) 10 Cr App R (S) 104. (1984) 6 Cr App R (S) 426. (1989) 11 Cr App R (S) 527. The Times 25 November 2003, 8; Scottish Criminal Cases Review Commission, ‘New Release’ (SCCRC 28 June 2007). Available at: www.sccrc.org.uk/ViewFile.aspx?id=293 accessed 10 October 2014. (1980) 70 Cr App R 24. (1986) 8 Cr App R (S) 364. See further [2005] EWCA Crim 2031. [1988] QB 678. Compare R v Gallagher The Times 25 February 1998, 2 (20 years for helping the IRA to bomb Downing Street in 1991). R v O’Reilly [1989] NI 120 (17 years); R v Payne (1989) 9 NIJB 28 (19 years). More recently, see R v McCaugherty and Gregory [2010] NICC 35 (20 years). (1991) 12 Cr App R (S.) 754 (30 years—conviction overturned on appeal: [2000] QB 520). More recently, see R v McDonald [2005] EWCA Crim 1945 (28 years).

The penology of terrorism

Sentences for criminal damage by animal welfare extremists are more attenuated. Keith Mann31 was sentenced to fourteen years’ imprisonment for activities which ‘often bore the hallmark of terrorism’ and were committed by ‘a determined and dangerous fanatic’. However, the ‘lone wolf ’ racist and homophobe, David Copeland, who planted bombs in public spaces in 1999, killing three and injuring 129, received six concurrent life sentences.32 Mr Justice Burton described the bombings as a ‘really exceptional case of deliberate, multiple murder’ and doubted that it would ever be safe to release Copeland. The recommendation was a minimum of thirty years. After reconsideration under the CJA 2003, the judge set a minimum term of fifty years because of ‘exceptional gravity’.33 Moving to the post-9/11 era, sentences have been severely ratcheted up in two directions: lengthier determinate sentences plus more indeterminate life sentences. In R v Bourgass,34 the offender was convicted of the murder of a police officer and was sentenced to life imprisonment for murder, with a minimum term fixed at twenty years and six months. He was also convicted of conspiracy to commit a public nuisance from the production of ricin (seventeen years). In R v Barot,35 the Court of Appeal held that discretionary life sentences will often be justified in terrorism cases since they involve ‘[a] terrorist who is in the grip of idealistic extremism to the extent that, over a prolonged period, he has been plotting to commit murder of innocent citizens [and] is likely to pose a serious risk for an indefinite period if he is not confined’. As for the appropriate length of the minimum term, the R v Martin guidance was considered inadequate for terrorist conspiracies incurring the potential for mass casualties.36 The life sentence was upheld, with a minimum reduced from forty to thirty years because of a guilty plea and doubts about the certainty and viability of the plot. A minimum term of forty years should be reserved for a serious attempt to commit mass murder by a viable method. Thus, a minimum of forty years should represent the maximum for a terrorist who seeks mass murder but is unsuccessful.37 Where the offence is conspiracy falling short of imminent attempt, the sentence should be lower.38 Where the seriousness of the offence is ‘particularly high’ but not exceptionally high, the starting point is a minimum term of thirty years.39 In a case of ‘merciless and extreme crimes’, as with the 21 July bombers, life with a minimum of forty years can be merited.40 Where mass murder flows from the actions of the offenders, whole life terms will be imposed, as will also be the case of an individual murder of a public officer after significant premediation and with shocking treatment of the body, such as the killing of Lee Rigby in Woolwich by Michael Adebolajo (whole life order) and Michael Adebowale (forty-five year

31 32 33 34 35 36 37 38

39 40

[1996] 2 Cr App R (S) 28, 30. See M Wolkind and N Sweeney, ‘R v David Copeland’ (2001) 41 Medicine Science & Law 185. Re Copeland [2007] EWHC 368 (QB) [10]. See [2005] EWCA Crim 1943, [2006] EWCA Crim 3397. [2007] EWCA Crim 1119 [37]. But Martin may still be relevant for more directed terrorism in Ireland: R v McKenna [2009] NICC 55. [2007] EWCA Crim 1119 [60]. See CJA 2003, Sch 21; Attorney General’s References (Nos 85, 86 and 87 of 2007), R v Tsouli [2007] EWCA Crim 3300 [41]; R v Timlin [2007] EWHC 1225 (QB) (25 years); R v Khyam [2008] EWCA Crim 1612 (20 years). [2007] EWCA Crim 1119 [56]. See R v Ibrahim [2008] EWCA Crim 880 [166]. 451

Catherine Appleton and Clive Walker

minimum term).41 These guidelines were applied to three accomplices of Barot in R v Abdul Aziz Jalil42 and to a 21/7 bomber in R v Asiedu.43 There is occasional leniency, if a person has turned away from terrorism. A rare example is Saajid Badat,44 a colleague of Richard Reid. Unlike Reid, he cut his ties with the jihadis and left his bomb components hidden in his parents’ house in Gloucester. After a guilty plea, the sentence was thirteen years.45 These policies of extraordinarily severe sentences for terrorists raise questions about differential treatment under the ECHR, Articles 5 and 14. In R (Hindawi) v Secretary of State for the Home Department,46 it was stated that a long-term determinate prisoner should be released when it was judged safe to release him. Neither the public interest nor the interest of the offender was well served by continuing to detain a prisoner until the end of his publicly pronounced sentence on the basis of general deterrent policy rather than individual circumstances. The exclusion of Hindawi’s case from consideration by the Parole Board because he was liable to deportation was also not justifiable. Aside from the most serious terrorism cases, a range of other offences have been examined in sentencing terms. For example, the rate for solicitation of murder by jihadis was at first around seven years.47 However, a step change occurred in R v Tsouli.48 Sentences imposed for conspiring to incite murder under the Terrorism Act (TA) 2000, section 59, through the creation of jihadi websites and internet forums, even following guilty pleas, were considered unduly lenient. The leading sentence was increased to sixteen years from ten years. Next, in R v Da Costa,49 two appellants were convicted of, or pleaded guilty to, solicitation of murder through meetings and trips for the purpose of training. The appellants unsuccessfully appealed against their sentences of IPP with a minimum term of seven-and-a-half years, derived from a notional determinate sentence of fifteen years, and a determinate sentence of seven-and-a-half years, based on an appropriate determinate sentence after trial of ten years’ imprisonment.

Enhanced sentences Despite any scintilla of leniency revealed by the foregoing narrative, several reviewers have sought to impart stronger statements of deterrence in terrorist sentences.50 The CounterTerrorism Act 2008 eventually translated the idea into action.51 Sections 30 to 32 allow enhanced sentencing in relation to specified offences that have, or may have, a ‘terrorist

41 42 43 44 45 46 47 48 49 50 51 452

Available at: www.judiciary.gov.uk/judgments/r-v-adebolajo-and-adebowale/ accessed 10 October 2014. [2008] EWCA Crim 2910. [2008] EWCA Crim 1725 [33]. Other minimum terms were up to forty years (Abdulla Ahmed Ali): The Times (London, 10 September 2009) 8, (13 July 2010) 4. The Times (London, 1 March 2005), 1, 6. Available at: http://news.bbc.co.uk/1/hi/uk/4474307.stm accessed 10 October 2014. [2006] UKHL 54. R v El-Faisal [2004] EWCA Crim 343 and [2004] EWCA Crim 456; R v Abu Hamza [2006] EWCA Crim 2918 (seven years); R v Saleem, Muhid, and Javed [2007] EWCA Crim 2692 (six years). [2007] EWCA Crim 3300. [2009] EWCA Crim 482. See Inquiry into Legislation against Terrorism (Cm 3420, London, 1996) ch 15; Privy Counsellor Review Committee, Anti-Terrorism, Crime and Security Act 2001 Review Report (HC 2003-04, 100) para 44. See C Walker, Terrorism and the Law (Oxford University Press, Oxford, 2011) para 6.130.

The penology of terrorism

connection’. However, the measures do not affect Northern Ireland, presumably because of political sensitivity about terrorism sentencing. Given the sentencing history adduced earlier, this provision is of marginal impact. The Home Office somehow believed that the fact that many terrorists are charged with offences other than those under the counter-terrorism legislation prevented enhanced sentences. Perhaps the objective was also to forestall any judicial reversal of the policy of draconian sentences, the sole sign of which emerged in R v Rahman, R v Mohammed,52 where it was feared that excessive sentences would ‘inflame rather than deter extremism’.

Incentives Sentencing law and policy next arises in the guise of an incentive to end terrorism. It has been so used in two contexts within the UK and elsewhere. One is to grant incentives for cooperation as prosecution witnesses, which have now been translated (except in Scotland) into the Serious Organised Crime and Police Act 2005, sections 71 to 75.53 The second aspect of incentives is the grant of an amnesty or concessions on sentences to convicted terrorist prisoners. Given that in a mature and organised campaign of terrorism, much of the leadership will in time reside in prison, this tactic is of crucial impact. Certainly, early release was critical to the Northern Ireland ‘Peace Process’, whereby the concessions under the Northern Ireland (Remission of Sentences) Act 1995 and the Northern Ireland (Sentences) Act 1998 aided the success of the enterprise, allied to immunity from prosecution under the Northern Ireland Arms Decommissioning Act 1997.

Sentencing comparison with Northern Ireland As noted above, there is a standing offer of leniency in the Northern Ireland Sentences Act 1998. Those paramilitary groups that call a ceasefire can obtain a much-reduced sentence for their members. Effectively, they serve two years’ imprisonment for offences committed before April 1998, provided they have now renounced violence. It follows that there were many releases of long-term prisoners in 1998 and 1999, including notorious murderers. There has even been interest in going further for persons not yet put on trial – so-called ‘On the Runs’, such as John Downey, who was able to claim that he had been led to believe that a guarantee of non-prosecution had been issued.54 There seems little interest in granting any form of leniency to Islamists, and certainly not in these official terms. An element of sentencing leniency seems to apply outside of the foregoing schemes. One might illustrate the point by the recent case of Ryan McDowell, aged 18. In Re Attorney General’s Reference (no 17 of 2013): A sentence of two years’ probation and 100 hours community service under the Explosive Substances Act 1883, section 4, was not unduly lenient for helping to make an non-viable pipe-bomb for the Loyalist Action Force.55 The non-viability

52 53 54

55

[2008] EWCA Crim 1465 [8]. See Joint Committee on Human Rights, Counter-Terrorism Policy and Human Rights: Prosecution and Pre-Charge Detention (2005–06 HL 240/HC 1576) para 110. See R v Downey, available at: www.judiciary.gov.uk/judgments/r-v-downey/ accessed 10 March 2014; The Report of the Hallett Review,An independent review into the On the Runs administrative scheme (HC 2014-15, 380). [2014] NICA 6. 453

Catherine Appleton and Clive Walker

of the device, the age of the offender, and the target – a building rather than a person – were all important factors. The Northern Ireland Court of Appeal conceded it was a ‘very lenient’ sentence.56 But the sentence was unchanged. One might compare the sentencing of persons in England for merely possessing information about pipe bombs and the like contrary to TA 2000, section 58. According to R v Mansha,57 ‘a person convicted of a terrorist offence must expect a substantial sentence… to serve as a deterrent to others and to mark the extreme seriousness of the criminality’. A six-year sentence was upheld. In the case of Sultan Muhammed, possession of bomb-making draft ideas not revealed to others and based on easily accessed information merited two years.58

Imprisonment of terrorists As well as the design of sentences, the conditions of imprisonment also impact on deterrence, incapacitation, and the possibility of rehabilitation. Terrorists are potentially dangerous prisoners. They may subvert other prisoners or the prison regime. Escape is also a threat.59 Here, we consider the conditions of detention for convicted terrorists, the challenges posed by extremist individuals, as well as some of the ‘de-radicalisation’ techniques that have been developed elsewhere.

Convicted terrorists in England and Wales England and Wales has an adult inmate population of approximately 85,000.60 As of 30 September 2013, 120 persons were in prison custody for terrorism-related offences, 79 per cent of whom were UK nationals.61 The majority (approximately two-thirds) are linked to, or inspired by,Al Qa’ida. Other terrorists detained in custody in England and Wales include: Irish extremists who reject the 1989 Belfast Agreement; animal rights extremists who use violence in pursuit of animal liberation; and a growing number of neo-Nazis.62 Most convicted terrorists in England and Wales are located in a small number of Category ‘A’ maximum security prisons, which hold inmates who, if they were to escape, ‘would be highly dangerous to the public, police or the security of the state and whose escape must be

56 57 58

59

60 61 62

454

Ibid, [14]. [2006] EWCA Crim 2051 [11] (Forbes J). R v Sultan Muhammed [2010] EWCA 227 [50]. Another defendant, Hammaad Munshi, aged 16 on arrest, was sentenced to two years’ youth detention (see R v Sultan Muhammed and Aabid Hassain Khan [2009] EWCA Crim 2653). See Report of an Inquiry by HM Chief Inspector of Prisons into the security arrangements at HM Prison, Maze relative to the escape on Sunday 25th September 1983, including relevant recommendations for the improvement of security at HM Prison, Maze (HC 1983-84, 203); Home Office, Report of the enquiry into the escape of six prisoners from the Special Security Unit at Whitemoor Prison, Cambridgeshire, on Friday 9th September 1994 (Cm 2741, London, 1994). See Ministry of Justice, Offender Management Statistics Bulletin, England and Wales (London, 2014). Home Office, Operation of police powers under the Terrorism Act 2000 and subsequent legislation: Arrests, outcomes and stops and searches, quarterly update to 30 September 2013, Great Britain (London, 2014) 2. See M Hamm, ‘Locking Up Terrorists: Three Models for Controlling Prisoner Radicalization’ (2011). Available at: www.indstate.edu/ccj/crinst/Locking%20Up%20Terrorists.docx accessed 3 May 2014.

The penology of terrorism

made impossible’.63 In contrast to the US or Australian prison systems, which segregate terrorist offenders from the general prison population of maximum security facilities,64 British terrorists are generally ‘dispersed’ within the population of the high-security prison estate. However, they are subject to strict security precautions and close supervision, including daily strip searches, restricted movement, constant surveillance, and regular cell changes, often within specialist units.65 Furthermore, inmates held on remand for terrorism offences, or those appealing against deportation or extradition to face trial abroad, are generally detained in a specialist unit in HMP Long Lartin high-security prison.66 Over recent years, prisons housing terrorist prisoners have been frequently portrayed as ‘incubators for terrorism’,67 and there are growing concerns that the presence of radical extremists in prison will affect ‘vulnerable’ prisoners.68 An example is Whitemoor Prison, where HM Chief Inspector of Prisons has reported ‘a rising problem of prison radicalization and an increase in Muslim conversions’, noting that some Muslim prisoners ‘operated as a gang and put pressure on non-Muslims to convert, and on other Muslim prisoners to conform to a strict and extreme interpretation of Islamic practice’.69 The findings of a recent study exploring staff–prisoner relationships at HMP Whitemoor echoed these concerns, and highlighted the problems not only of extremism but also the difficulties of staff from different cultures who then apply indiscriminate treatment to all Muslim prisoners and fail to differentiate threats to security from legitimate demands for religious autonomy:70 Staff (and prisoners) expressed a fear that ‘prison is where the extremism of the future might originate’… The prison was described by some prisoners as ‘a recruiting drive for the Taliban’, with extremists trying to convert and radicalise the vulnerable. It was difficult to disentangle fact from fear. Conversion to Islam was often seen (and therefore treated as) ‘the first sign of risk’. This was frustrating for Imams, and for devout Muslims. Conversion to Christianity (or Buddhism) did not ‘set off alarm bells’… Often the opposite.71 The Prison Service in England and Wales has recognised the problem of violent extremism and the dangers presented by extremist Islamist groups in prisons. Responses have included the recruitment and training of Prison Service Imams, as well as the integration of Muslim

63 64 65 66 67

68 69 70 71

G Hannah, L Clutterbuck, and J Rubin, Radicalization or Rehabilitation: Understanding the Challenge of Extremist and Radicalised Prisoners (RAND, Santa Monica, 2008) 32. See CR Jones, ‘Are prisons really schools of terrorism? Changing the rhetoric on prison radicalization’ (2014) 16 Punishment and Society 74. Ibid. HM Chief Inspector of Prisons, An Inspection of the Category A Detainee Unit at HMP Long Lartin July 2007 (London, HMIP 2008) 5. See, for example, D Lappard, ‘Terrorists smuggle fatwas out of secure prisons’ The Sunday Times (London, 15 November 2009) 4; R Pantucci, ‘UK prisons: Incubators for Terrorism?’ The Guardian (London, 4 February 2009). Available at: www.theguardian.com/commentisfree/2009/feb/03/ islam-prisonsandprobation accessed 1 December 2014. See Hannah (n 63) 34. HM Chief Inspector of Prisons, Report on an unannounced full follow-up inspection of HMP Whitemoor, 7-11 April 2008 (London, 2008) 43. See A Liebling, H Arnold, and C Straub, An exploration of staff-prisoner relationships at HMP Whitemoor: 12 years on (Ministry of Justice, London, 2011). A Liebling and C Straub, ‘Identity Challenges and the Risks of Radicalisation in High Security Custody’ (2012) 203 Prison Service Journal 20. 455

Catherine Appleton and Clive Walker

Chaplains into prison management.72 The most dominant response to the detention of Islamist extremists, however, has focused on intelligence-gathering, risk assessment, and risk management of prison radicals. A Prison Service Extremism Unit, now part of National Offender Management Service (NOMS) Security Group, was established in 2007 with responsibility for ‘developing the strategic, policy and procedural responses appropriate to the risks presented by terrorists, extremists and radicalisers’.73 The Extremism Unit works with Regional Counter Terrorism Coordinators based across the secure estate to ‘develop intelligence and to monitor and manage terrorist or extremist prisoners in custody’.74 Muslim chaplains, and other prison staff, are expected to complete ‘Security Intelligence Reports’ should any issue arise that could affect ‘the security of the establishment or public protection’, and are therefore required to be on ‘red alert’ for signs of Islamic radicalisation.75 Furthermore, prison governors retain the ability to segregate an inmate from other prisoners where they perceive there to be a risk of radicalisation.76 As with many aspects of contemporary penal policy, maintaining security and considerations of risk appear to be the primary influence upon the detention of convicted terrorists, with little attention to the role of rehabilitation or ‘de-radicalisation’ programmes for extremist offenders.77 Tough prison regimes, however, run the risk of creating an ‘alarmist stance’78 and of alienating the non-terrorist Muslim prisoner population. Indeed, problems have been reported at HMP Whitemoor79 and HMP Belmarsh.80 The HM Chief Inspector of Prisons’ thematic review, Muslim Prisoners’ Experiences, found in 2010 that Muslim terrorist prisoners formed less than one per cent of the 10,300 Muslim prisoners in England and Wales but had a disproportionate impact on shaping the perceptions of prison staff toward the non-terrorist Muslim prison population, leading to undue feelings of distrust and lack of safety, and a risk of releasing prisoners more likely to reoffend or even embrace extremism. Recent empirical research carried out in the US suggests that conditions for radicalisation are more likely to be heightened in prisons where there are few rehabilitation programmes, a shortage of chaplains, serious gang problems, and more politically charged communal areas; conversely, inclusive prison environments with viable rehabilitative activities can act as a ‘countervailing weight’ against Islamic extremism.81

72 73 74 75 76 77

78 79 80 81

456

R Pickering, ‘Terrorism, extremism, radicalisation and the offender management system in England and Wales’, in A Silke (ed.), Prisons,Terrorism and Extremism (Routledge, London, 2014). NOMS, Managing Terrorist and Extremist Offenders in the Community, PI 10/2014 (NOMS, London, 2014). Ibid 10. Home Affairs Committee, Roots of Violent Radicalisation (HC 2010-12, 1446) 39. R (Bary) v Secretary of State for Justice [2010] EWHC 587 (Admin). Exceptions to this include a mentoring programme for Muslim prisoners ‘potentially susceptible to radicalisation or extremist views’, which supports their reintegration on release from prison back into their local community (see Home Office, Countering International Terrorism (Cm 6888, London, 2006) para 51), and the very recent development of the ‘Healthy Identity Intervention’, a psychologically informed intervention to address extremist offending (see C Dean, ‘The Healthy Identity Intervention’, in Silke (n 72)). M Hamm, ‘Prison Islam in the age of sacred terror’ (2009) 49 British Journal of Criminology 667. HM Chief Inspector of Prisons, Report on an unannounced full follow-up inspection of HMP Whitemoor, 7-11 April 2008 (London, 2008). HM Chief Inspector of Prisons, Report on a full announced inspection of HMP Belmarsh, 8-12 October 2007 (London, 2008). Hamm, ‘Prison Islam in the age of sacred terror’ (n 78) 678. See also R Gunaratna, ‘Terrorist rehabilitation: A global imperative’ (2011) 6 Journal of Policing, Intelligence and Counter Terrorism 65.

The penology of terrorism

Northern Irelands’s early release scheme It has been estimated that around 30,000 people in Northern Ireland were convicted of terrorism-related offences from 1969 to 1996.82 During the same period, 29 prison officers were killed, with one further murder (of David Black) in 2012.83 At the height of the conflict in Northern Ireland, terrorists formed the majority of high-risk prisoners.84 Their reactions to imprisonment included escapes, protests,85 and litigation.86 However, after the Good Friday Agreement of 1998 a total of 452 prisoners (197 were Loyalist, 242 Republican, and 13 nonaffiliated) became eligible for release under the ‘early release scheme’ under the Northern Ireland Sentences Act 1998.87 The Agreement stated that support would be provided for convicted terrorists, ‘including assistance directed towards availing of employment opportunities, re-training and/or re-skilling, and further education’.88 The 1998 settlement, however, did not equal outright amnesty: prisoners were released under licence and subject to recall to prison if they violated the conditions of their release or became involved in the preparation or instigation of acts of terrorism.89 Moreover, several parties expressed concern about the extent to which those released were assisted by the British and Irish governments in re-establishing themselves in communities.90 Other entities, such as the European Union and the Northern Ireland Voluntary Trust (now the Community Foundation for Northern Ireland), attempted to facilitate the reintegration process of released prisoners, with the funding of a diverse group of community-based projects.91 The Northern Ireland Association for the Care and Resettlement of Offenders also offered education and vocational training to ex-prisoners,92 and former combatants have played key roles in community-based initiatives to help ex-prisoners.93

82 83 84 85 86 87

88 89 90

91 92 93

See N Ferguson, ‘Northern Ireland ex-prisoners’ in Silke (n 72) 271. See further K McEvoy, Paramilitary Imprisonment in Northern Ireland (Oxford University Press, Oxford, 2001). See www.dojni.gov.uk/index/ni-prison-service/history.htm accessed 5 March 2015. See McEvoy (n 82). See ibid. See S Livingstone and others, Prison Law (4th edn, Oxford University Press, Oxford 2008). Ferguson (n 82) 272. See further P Shirlow and K McEvoy, Beyond the Wire (Pluto, London, 2008); JW McAuley and others, ‘Conflict, transformation and former Loyalist paramilitary prisoners in Northern Ireland’ (2009) 22 Terrorism & Political Violence 22; J Morrison,‘A time to think, a time to talk: Irish Republican prisoners in the Northern Irish peace process’, in Silke (n 72). Belfast Agreement, The Agreement reached in multiparty negotiations (Cm 3883, London, 1998),Annex B. See Re Adair [2003] NIQB 16; Re McClean [2004] NICA 13; R v McCallan [2006] NICC 31; Re McCafferty [2009] NIQB 59; Re Knight [2010] NIQB 30. See Re McComb [2003] NIQB 47; Security Industry Authority, Northern Ireland Research (London, 2009); J Horgan and K Braddock, ‘Rehabilitating the terrorists?: Challenges in assessing the effectiveness of de-radicalization programs’ (2010) 22 Terrorism and Political Violence 269. See www.communityfoundationni.org/Programmes/From-Prison-to-Peace-Partnership accessed 5 March 2015. See www.niacro.co.uk/our-services/working-with-offenders-and-ex-prisoners/ accessed 5 March 2015. See especially C Dwyer, ‘Expanding DDR: The transformative role of former prisoners in community-based reintegration in Northern Ireland’ (2012) 6 International Journal of Transitional Justice 274. 457

Catherine Appleton and Clive Walker

Since the early release of prisoners from 1998 onwards, only twenty-three have had their release licences revoked, and only ten have been returned to prison for involvement in terrorist offences.94 Given the continued perception of risk,95 this recidivism rate of five per cent is surprisingly low,96 and it has been claimed that the early release scheme has played a ‘pivotal and successful role’ in the Northern Ireland ‘Peace Process’.97

Rehabilitation schemes outside the UK The limited attempts at de-radicalisation or rehabilitation schemes in the UK contrast with efforts elsewhere. One such example is Saudi Arabia’s counselling programme such as at the Mohammed bin Nayef Center for Counseling and Care.98 Its rehabilitative programme is intended to change extremist behaviour and to de-legitimise what the authorities deem to be incorrect or violent interpretations of the Qu’ran.99 Thus, imprisoned terrorists are invited to participate in open-dialogue, structured learning, and socio-psychological intervention. Religious scholars, psychologists, and social scientists perform the majority of counselling. In addition to the psychological support on offer, significant efforts are made to address the financial and social needs of the prisoners and their families during the programme’s ‘aftercare’ phase. The focus of the programme is therefore not just to change beliefs and attitudes of former terrorists, but also to equip the former terrorist with the psychological and social tools deemed necessary to resettle in society. In December 2011, it was reported that 5,000 terrorist prisoners had participated in the programme and, after release, had returned an 80–98 per cent non-recidivism rate.100 Independent scholars, however, have questioned the accuracy of the Saudi claims.101 At the other end of the scale to this centralised and lavishly funded scheme, Indonesia’s special counter-terrorism police unit has pioneered localised ‘de-radicalisation’ and rehabilitation efforts. In contrast to Saudi Arabia’s programme, where religious scholars play a significant role, Indonesia’s police interrogators and former ‘credible’ terrorists play the leading role in disengagement efforts, and the central premise has revolved around the renunciation of the use of violence, rather than debates about religious legitimacy.102 This approach requires the

94 95 96 97 98 99

100 101 102

458

See Northern Ireland Prison Service, Early Releases: Accelerated Release Scheme (Belfast, 2010). See C Dwyer, ‘Risk, politics and the “scientification” of political judgement’ (2007) 47 British Journal of Criminology 779. See N Ferguson, ‘Northern Ireland ex-prisoners’ in A Silke (ed.), Prisons, Terrorism and Extremism (Routledge, London, 2014) 273. Horgan and Braddock (n 90). Centres were opened in Riyadh (2007) and Jeddah (2013). Available at: www.nafethah.gov.sa/ detail?articleId=82584 accessed 10 March 2015. C Boucek, ‘Extremist re-education and rehabilitation in Saudi Arabia’ (2007) Terrorism Monitor 5, no.16. Available at: www.jamestown.org/terrorism/news/article.php?issue_id=4213 accessed 9 March 2015. See also C Boucek,‘Saudi Arabia’s “soft” counterterrorism strategy: Prevention, rehabilitation and aftercare’ (2008) 97 Carnegie Papers. M Porges, ‘Saudi Arabia’s “soft” approach to terrorist prisoners: A model for others?’ in Silke (n 72) 178. Ibid. See International Centre for the Study of Radicalisation and PoliticalViolence, Prisons andTerrorism: Radicalisation and De-radicalisation in 15 countries (ICSRPV, London, 2010) 51.

The penology of terrorism

police to treat prisoners ‘in a humane way and to develop bonds of trust’.103 A key part of the programme is reuniting prisoners with their families. In exchange for information, the police authorities have also provided special facilities to some convicted terrorists, separating them from the rest of the prison population and rewarding them with incentives such as better detention conditions, reduced sentences, and financial assistance or employment opportunities.104 Other rehabilitation initiatives in Indonesia have been implemented by civil society or nongovernmental organisations. For example, the Yayasan Prasasti Perdamaian (Institute for International Peace Building) conducts workshops in prisons on anger management for highrisk individuals, including terrorist prisoners. The programme entails engaging and supporting convicted terrorists’ families, providing new social relationships, and employment opportunities.105 Given the ad hoc nature of the Indonesian approach to rehabilitation, it is difficult to assess its effectiveness, or even its strengths and weaknesses, though some reports have been favourable.106 These experiences of other jurisdictions cannot exactly be replicated in the UK but may help to provide some valuable points of reference for policy makers and practitioners. A common theme is a strong emphasis on the reintegration or the ‘aftercare’ of former prisoners in the community. In the final section, we briefly explore some of the ‘release conditions’ for convicted terrorists in England and Wales.

Release conditions Because there remains limited confidence in the impact of prison to rehabilitate or de-radicalise convicted terrorists, a number of special restrictions are applied on release, including Multi-Agency Public Protection Arrangements (MAPPA) licence conditions and notification duties.

MAPPA and licence conditions In England and Wales, the primary channel through which terrorist offenders are managed in the community is the MAPPA. Originally established to manage released sex and violent offenders who pose a risk to public safety, MAPPA have been extended since 9/11 to deal with released terrorist offenders. MAPPA are set out under the CJA 2003, sections 325–327, which requires the ‘Responsible Authority’, consisting of the police, the probation service, and prison service to work together to make arrangements for assessing and managing risks posed by: registered sex offenders (Category 1), violent and/or sex offenders (Category 2) who have received a custodial sentence of 12 months or more, and ‘other dangerous offenders’ (Category 3) who pose a risk of serious harm to the public. Terrorist offenders may become eligible for MAPPA in various ways. For example, released terrorists convicted of a specified ‘violent offence’ under section 224 of the CJA 2003 will be automatically subject to the MAPPA as a Category 2 offender, with active multi-agency

103 104 105 106

A Rabasa and others, Deradicalising Islamist extremists (RAND, Santa Monica, 2010) 108. See S Osman, ‘Radicalisation, recidivism and rehabilitation: Convicted terrorists in Indonesian prisons’ in Silke (n 72) 223. See www.facebook.com/yayasan.prasastiperdamaian accessed 15 March 2015. See Rabasa and others (n 103) 115. 459

Catherine Appleton and Clive Walker

involvement.107 For other terrorist offenders, the nature of their offence and the risk they pose to the public must be considered in order to assess whether they exceptionally qualify as a Category 3 offender, requiring active conferencing and senior representation from the lead agency and partners. Finally, consideration must be given to the impact on the victim and the motivation for the crime, which may result in involvement in MAPPA as a Category 3 offender.108 Multi-agency meetings are first held six months prior to the expected release of a terrorist convict, and a ‘Risk Management Plan’ is devised, taking into account a number of actuarial risk assessment tools, such as the Offender Assessment System, the Offender Group Reconviction Scale, and intelligence gathered from the Violent and Sexual Offenders Register.109 Once terrorist offenders are released by the Parole Board, they are subject to licence conditions and to possible recall to prison. The decision to apply particular licence conditions is negotiated at the initial MAPPA meeting as part of the risk management plan, but enforced by the Probation Service. Standard conditions relate to supervision attendance, approved residence, home visits by the supervising officer, approved employment, and travel and behaviour restrictions. However, the risk posed by terrorist prisoners can require additional licence conditions, including restrictions on computers and mobile phones, movements, materials, associations, meetings, and expression.110 Although the number of terrorism offenders released on licence in England and Wales is relatively small,111 MAPPA have been said to be ‘largely successful’ in preventing serious reoffending amongst released terrorist offenders.112 Furthermore, recent research supports the view that multi-agency approaches are appropriate for managing terrorist offenders.113 However, very few rehabilitative or reintegrative options have been made available for released terrorist offenders as an integral part of the MAPPA process.114 Reflecting an overriding concern with issues of public protection, control, restriction, and exclusion, the licence conditions for terrorist offenders can remain in force following the termination of MAPPA, and an individual can be recalled to prison if they violate the conditions of their release or if they create a perceived risk of further offending.

107 108 109 110 111

112 113 114

460

See NOMS, MAPPA Guidance 2012 (Version 4, 2012) para 24.7 and ManagingTerrorist and Extremist Offenders in the Community (London, 2014). Ibid para 24,10. Ibid paras 24.18-24.25. See R (Gul) v Secretary of State for Justice [2014] EWHC 373 (Admin). In February 2011 there were thirty-six former terrorist prisoners on licence in the community, with a further thirty-four due to be released over the next four years (B Wilkinson, ‘Do Leopards change their spots?: Probation, risk assessment and management of terrorism related offenders on licence in the UK’ in Silke (n 72) 260. Ibid 264. See E Disley and others, Using Multi Agency Public Protection Arrangements to Manage and Supervise Terrorist Offenders (RAND, Cambridge, 2013). As mentioned earlier, one significant development includes the ‘Healthy Identity Intervention’, although early indications suggest the scheme will be used narrowly with individuals who have shown ‘some inclination to relinquish their views’ (Wilkinson (n 111) 268).

The penology of terrorism

Notification scheme Notification for convicted terrorists under the Counter Terrorism Act 2008 is modelled on sex offenders registration under the Sexual Offences Act 2003, Pt II.115 Notification applies to a person aged over 16 and sentenced to imprisonment for one year or more (sections 44, 45, and 46) for a terrorism legislation offence (as listed in section 41) or for an offence with a terrorism connection (as described in section 42).116 In Northern Ireland, only offences under section 41 are relevant. Initial notification under section 47 demands the transmission of details about identity, residence, and travel to the police, to be delivered in person within three days of release from detention (section 50). Two subsequent duties ensue: notification of changes of residence for seven days or more (section 48) and periodic annual re-notification (section 49). In relation to foreign travel, compulsory notification arises under section 52 and foreign travel restriction orders may be imposed by section 58 and schedule 5. The duration of notification is regulated by section 53. For persons over 18 at the time of conviction and sentenced to life imprisonment or imprisonment for ten years or more, the period is thirty years. A period of fifteen years applies to those sentenced to five to ten years. Otherwise, the period is ten years (including for offenders aged 16 and 17). These lengthy periods arise because the government doubted the viability of renewals of orders: ‘The fact that a person has not reoffended is not sufficient to establish the absence of such a risk.’117 A Kafkaesque world thus arises without opportunity to prove contrition or rehabilitation. The automatic imposition of notification and its length were challenged in R (Irfan) v Secretary of State for the Home Department.118 The application was refused because the scheme was deemed to be proportionate for the protection of the national security and public safety.119 Notification can also be applied under section 57 and Schedule 4 to persons convicted of terrorism offences abroad. The police may make applications, and if the conditions are met, then the High Court must make an order. No appeal is offered, but paragraph 3(3) bars notification where a foreign conviction involved a flagrant denial of a fair trial.120 Notification seeks to aid the detection of crime and to deter.121 But its automatic application signals doubts about the risk management impact of penal processes. As for accountability and constitutional governance, no formal review mechanisms are specified.122 Statistics have only

115 116 117 118 119 120 121 122

For full details, see C Walker, Terrorism and the Law (Oxford University Press, Oxford, 2011) para 6.157. For implementation, see PSNI, Notification Requirements Under Part 4 Counter-Terrorism Act 2008 (SP 35/2009); Prison Service, Terrorist Notification Requirements (PSI38/2011, 2011). House of Lords Debates 13 October 2008, vol 704, col 795, Lord West. [2012] EWHC 840 (Admin); [2012] EWCA Civ 1471. Compare R (F) v Secretary of State for the Home Department [2010] UKSC 17; Bouchacourt v France App No 5335/06, 17 December 2009. See EM (Lebanon) v Secretary of State for the Home Department [2008] UKHL 64. Home Office, Possible Measures for Inclusion into a Future Counter-Terrorism Bill (London, 2007) paras 47, 48. But see Lord Carlile, Report on the Operation in 2001-2008 of the Terrorism Act 2000 (Home Office, London) para 264. 461

Catherine Appleton and Clive Walker

recently been released. They reveal no orders in Northern Ireland123 but 58 cases up to 30 September 2013 in Britain.124

Passport controls As well as statutory restrictions, the Home Office announced in 2013 a scheme to refuse or withdraw passports under the royal prerogative, which can apply to ‘terrorism-related activity’.125 Powers to search for invalid or withdrawn travel documents were granted by the Anti Social Behaviour, Crime and Policing Act 2014, section 147. But the power itself remains part of the prerogative. This power has not been used against ex-offenders so much as those suspected of travelling to join conflicts in Libya, Somalia, or Syria. The power was used only sixteeen times between 1947 and 1976, but fourteen invocations have occurred since April 2013. The House of Commons Home Affairs Committee has recommended that ‘the power is utilised as an exceptional preventative and temporary measure.’126

Conclusion The penology of terrorism in the UK reflects above all retribution and public protection, with the latter growing in importance. Thus, ‘Pursue’ is dominant with minimal ‘Prevent’ work by way of de-radicalisation programmes. There is clearly a need for an increased investment in rehabilitative and reintegrative opportunities for terrorist offenders, both behind prison walls and following release, especially in the light of the severe ratcheting up of punishments since 2001. Accountability and constitutional governance have been less well delivered. The policies are piecemeal and not scrutinised by any independent reviewer. A comprehensive study of the punishment of terrorism is overdue.

123

124 125 126 462

Northern Ireland Office, Northern Ireland Terrorism Legislation: Annual Statistics 2012/13 (Belfast, 2013) Tables 17–19: from 2009/10 to 2012/13, there were two notification subjects and no foreign travel orders. Memorandum to the Home Affairs Committee, Post-legislative Scrutiny of the Counter-Terrorism Act 2008 (Cm 8834, London, 2014) para 8.10.4. Hansard (House of Commons) vol 561, col 68ws, 25 April 2013. Home Affairs Committee, Counter-terrorism (HC 2013-14, 231) para 96.

30 Conclusion Genevieve Lennon and Clive Walker

The thesis adopted in our introductory chapter was that terrorism laws have proliferated in domestic laws since the events of 9/11 and that this spread has reflected a general (but by no means complete) drift from the ‘Total War on Terror’ to ‘Total Counter-terrorism’. The trend of proliferation has surely been demonstrated by the weight of materials contained within the nearly thirty substantive chapters now set out in this Handbook. The authors have described and analysed laws that have overwhelmingly been devised since 9/11, with only a few jurisdictions (one notable and much copied example being the UK’s TA 2000, with others, inter alia, in France, Israel, and Malaysia) maintaining extensive codes in place before that date. In addition, though our contributors’ extensive surveys give a full flavour of the ‘Total Counter-terrorism’ framework, they by no means exhaust the totality of that catalogue. The nearest to an exhaustive survey has been undertaken by the UN Counter-Terrorism Committee (CTC).1 But even that august body has found it challenging to obtain comprehensive and accurate details from all 192 UN member states, and it has largely abandoned after 2006 the effort to present either the raw country reports or its critique thereupon. In order to impose a clear and coherent analysis of the delivery of ‘total counter-terrorism’ in substance, this Handbook adopted a policy-driven strategic approach. Our categorisation of domestic laws sought to make sense of the breadth and diversity of the myriad counterterrorism laws based on the UK’s ‘CONTEST’ (Countering International Terrorism) documentation (‘CONTEST’).2 Thus, preceded by the scene-setting chapters concerning ‘The boundaries and strategies of national counter-terrorism laws’, we explored our chosen agenda according to the headings of: ‘The Pursuit of terrorists by criminal process and executive measures’; ‘Protective Security’; and ‘Preventive measures’. Five reflections upon this chosen categorisation will now be offered.

1 2

Available at: www.un.org/en/sc/ctc/resources/countryreports.html accessed 10 March 2015. See Home Office, Countering International Terrorism (Cm 6888, London, 2006), Pursue, Prevent, Protect, Prepare:The United Kingdom’s Strategy for Countering International Terrorism (Cm 7547, London, 2009), The United Kingdom’s Strategy for Countering International Terrorism (Cm 7833, London, 2010), (Cm 8123, London, 2011), (Cm 8583, London, 2013), (Cm 8848, London, 2014). 463

Genevieve Lennon and Clive Walker

The first is that the systemisation broadly worked well, in that most of the materials could easily be slotted into one or another heading. Indeed, the agenda was not only of use to academic authors but also was being explicitly adopted by domestic legislators even as the Handbook was being written. An example is Vietnam’s Counter-Terrorism Law 2013,3 which sets out in Article 5 the following ‘Counter-terrorism policies’: 1.

2. 3.

4.

5. 6.

The State condemns and severely punishes all acts of terrorism and terrorist financing; resorts to synchronous measures to organise terrorism prevention and combat; propagates and mobilises organisations and individuals to participate in terrorism prevention and combat. The State adopts policies to mobilise scientific and technological achievements to serve terrorism prevention and combat. The State prioritises investment of technical and professional equipment and means for and assures the regimes and policies toward forces fighting terrorism and terrorist financing. The State applies policies and measures to protect organisations and individuals participating in terrorism prevention and combat. For individuals who are wounded, suffer health damage or die when participating in terrorism prevention and combat, they themselves or their relatives are entitled to the regimes and policies as prescribed by law. Organisations and individuals whose assets are damaged when being mobilised to serve terrorism prevention and combat are entitled to compensation. Organisations and individuals that record achievements in terrorism prevention and combat are commended according to the law on emulation and commendation. The State applies leniency policy toward organisations and individuals that take the initiative in abandoning their intentions to commit terrorism or finance terrorists; that terminate midway at their own will their acts of terrorism or terrorist financing or attempt, or before their acts of terrorism or terrorism financing are detected, stop, reduce the damage or redress the consequences and surrender themselves and sincerely report on their acts, actively assisting responsible agencies in detecting, stopping, investigating, prosecuting and adjudicating terrorists and terrorist financers.

The second reflection on our chosen categorisation is that while each jurisdiction chooses its own path in counter-terrorism, the structure adopted in this Handbook illuminates substantial areas of cohesion. This cohesion is not entirely surprising since there is a tendency towards policy ‘laundering’, whereby practices and laws are churned and adapted from jurisdiction to jurisdiction, despite the lack of robust evaluations of the effectiveness of many counter-terrorist policies. As a result, best practice may not be identified, while poor practices still migrate between jurisdictions and may also ‘bleed’ from counter-terrorism codes to different areas of law. It should also be emphasised that the process has been one of proliferation rather than the invention of new ‘law forms’;4 as mentioned, some jurisdictions did have pre-9/11 counterterrorism laws, and these proved highly influential in shaping post 9/11 codes in many jurisdictions. Within Part 1, ‘Across the Boundaries and Strategies of National CounterTerrorism Laws’, it was found that countries are increasingly struggling with the appropriate

3 4 464

No 28/2013/QH13. Compare C Boukalas, Homeland Security, its Laws and its State (Routledge, Abingdon, 2014) 90, 99.

Conclusion

roles of, and limits upon, preventive measures, as evidenced by the rise in pre-cursor crimes in various jurisdictions. In the context of Part 2, ‘The Pursuit of Terrorists by Criminal Process and Executive Measures’, executive measures such as detention and the treatment of detainees continue to be prime concerns. Another cross-cutting issue is how to incorporate intelligence within legal processes, with the blurring of the line between evidence and intelligence engendering complex and potentially dangerous deviations from normal court procedures and laws of evidence affecting both criminal processes and civil ones. Turning to ‘Protective Security’, cross-sectoral accountability and interaction are discovered to be key challenges, including the basic difficulties of uncovering the parts played by private corporate sectors. Finally, in terms of ‘Preventive Measures’, counter-radicalisation is of increasing importance as a counter-terrorist policy. Much faith is being invested in the notions that the ‘symptoms’ of terrorism (often presented in terms ‘radicalisation’) can be identified in the first place and that effective aversion responses can be applied to those afflicted in the second place. In reality, there exist multiple causes and potential cures that state solutions tend to grossly simplify, so that the impacts of ‘Preventive Measures’ require much deeper elaboration. Focusing especially on ‘Pursuit’, a third key thread that runs through most of the collection is the precautionary approach to terrorism risk. While always evident in counter-terrorist strategy, there has been a significant expansion of the use of precautionary measures since 9/11. Predicated on the belief that there is no longer an ‘acceptable’ level of such violence, these types of measure reflect the reasoning that the consequences of a successful terrorist attack could be so catastrophic as to justify early intervention even in the absence of proof that a terrorist attack will occur or who will be the perpetrators. Preventive detention has long been part of the counter-terrorist arsenal, but precursor offences are a relatively new departure. Precautionary logic runs counter to the criminal norm that proof of individualised misdeeds (and not just suspicions) must be ascribed before coercive powers may be deployed against a person. This development has had five major consequences. First, there is increased recourse to ‘all-risks’ policing powers. Second, as lower levels of suspicion or proof are deemed to suffice for executive action or even court conviction, the counter-terrorism net is being cast increasingly widely, covering the ‘friends of my enemy’ and, through mass surveillance, everyone, and thereby undermining the values of privacy and free expression and association. Third, this development goes hand in glove with the increasing deviation from ‘ordinary’ criminal law norms and even the embracing of ‘the law of the enemy’, drawing closer to models that would normally apply in wartime.5 Fourth, while significantly boosted by the UN Security Council’s prescription to criminalise incitement to terrorism,6 the spread of precursor offences also flows from the increasing resort to precautionary logic within counter-terrorism. Finally, these riskadverse practices have aggravated pre-existing tensions between counter-terrorism laws and the standards of the rule of law in particular through the vagueness of the offences and broad discretion granted to the executive and/or security officials. Our fourth reflection is that while the framework adopted here holds good, there is no end of variation and elaboration. Notwithstanding a stream of key resolutions issued by the United Nations Security Council in the aftermath of 9/11, and from that period through to the contemporary edicts about ‘foreign terrorism fighters’,7 international consensus and

5 6 7

See R Chesney and J Goldsmith, ‘Terrorism and the Convergence of Criminal and Military Detention Models’ (2008) 60 Stanford Law Review 1079. See especially UNSCR 1624 of 14 September 2005. See UNSCR 2178 of 24 September 2014; UNSCR 2195 of 19 December 2014. 465

Genevieve Lennon and Clive Walker

cooperation is far from universal. An international law definition of ‘terrorism’ remains elusive. Wide national variations are also evident in the use of police powers, administrative detention, deviations from ordinary criminal law, processes, and penology, approaches to ‘Prevent’, and systems of oversight. Even the current focus on foreign terrorist fighters is producing variation in the quality of state response or even the readiness to respond at all (with the CTC again facing a battle to assess whether the states’ responses are adequate).8 The fifth reflection on our chosen categorisation is that research and evaluation were not evenly distributed across our three chosen headings. Counter-terrorism laws and policies most closely allied to traditional criminal justice concerns – CONTEST’s ‘Pursue’ – are most extensively elaborated, especially by legal academics, both as policies and in terms of literature written about them. Thus the ‘traditional’ focus on arresting and charging suspected terrorists, at the heart of ‘Pursue’, has existed in many jurisdictions for many decades, if not longer, and has been subjected to assessment by academics, parliamentary committees, independent reviewers, and international bodies, among others. As for ‘Prevent’, there is a rapidly expanding collection of publications, often authored by political or social scientists rather than lawyers. By contrast, surprisingly few commentaries have been published on the subject of the far more wide-ranging area of ‘Protective Security’, straddling ‘Prepare’ and ‘Protect’, despite its more pervasive impact and despite its much greater financial costs. Future research in that direction would be very worthwhile. Moving beyond matters of categorisation of counter-terrorism measures, this extensive collection reveals a number of key trends and discontinuities in counter-terrorism domestic law and policy across the globe. One preliminary observation is that, contrary to the occasional claims that there is inadequate research and evaluation of counter-terrorism law, there is a broad and deep well of top-quality research that has, and is being, conducted on the various facets of counter-terrorism. That conclusion is not meant to gainsay the points, first and as just stated, that more information is needed on protective security or, second and as carefully argued in Chapter 20, that more work needs to be undertaken to subject the impact of counter-terrorist law and policies to more rigorous evaluation. Subject to those qualifications, the interdisciplinary nature of this Handbook has facilitated academics from different disciplines and practitioners working together, promoting cross-fertilisation of ideas and enabling patterns to be tracked. The cross-jurisdictional focus of this collection represents another strength. By examining core issues across jurisdictions, not only can migrations be tracked through time and place, but the sometimes subtle derivations that occur when they are planted in foreign soils can be identified, allowing one to postulate on the consequences that may arise. Our overall approach therefore emphasises the necessity of viewing counter-terrorist laws and practices in the round – considering the various facets of ‘Pursue’, ‘Prepare’, ‘Prevent’, and ‘Protect’ enables policy relevant conclusions that can determine existing and emerging trends across sectors and jurisdictions. A final observation is the constancy and endurance of headings of critique that are in turn grounded in the core values of accountability, human rights, and constitutionalism more broadly. However, over the decade since the attacks of 9/11, counter-terrorism policies and laws continue to take the lead, with these core values often placed in the rearguard and with a more delayed and gradual impact. In terms of outcomes, the accommodations and tensions

8

466

See UNSCR 2178 of 24 September 2014, art 26. See also UNSCR 2195 of 19 December 2014, arts 20–22.

Conclusion

between security and personal liberties continue to vacillate. On some fronts, the courts have stood relatively firm – for example, in relation to rendition, some forms of administrative detention and aspects of court process. But in other areas, including lower-level policing powers, such as stop and search, as well as mass surveillance, lacuna have remained or been revealed. As for accountability, the chapters reveal long-standing problems to ensure sufficient oversight over the exercise of intelligence-gathering and certain executive powers, while the burgeoning field of homeland security is showing stout resistance to effective oversight, particularly where, as is so often the case, key assets reside in the hands of the private sector where a corporatist approach to accountability tends to dominate. Oversight also remains a significant problem in relation to ‘Prevent’ initiatives. For example, only in late 2014 has any legislation been tabled in the UK to set any parameters to its nature or implementation.9 The lack of accountability and the frequent absence of an evidence base for critical counter-terrorism strategies may detrimentally impact on their perceived legitimacy. This tendency is aggravated by policies that impact or are perceived to impact disproportionately upon particular groups. It is inevitable that, as well as maturing, counter-terrorism laws must develop in every state to deal with evolving threats. It may have become a fashionable exaggeration to argue that states should become ‘militant democracies’ in order to combat terrorism,10 but it is certainly true that each state has a fundamental duty to safeguard the right to life of its citizens.11 Therefore, it remains a considerable challenge for governments, legislators, judges, parliamentary committees, and specialist reviewers and rapporteurs to ensure that the inevitable and continuing legal developments still adhere to the core values of society and international law and to ensure that past failures are avoided rather than repeated. Provided the special codes against terrorism avoid the excesses of ‘total war’, it is legitimate to have domestic laws against terrorism, just as almost all states have specialised laws against other forms of persistent specialist criminality, such as organised crime, drug trafficking, or child pornography. In this way, counter-terrorism laws have become no more transitory than other ‘specialist’ laws dealing with other forms of serious criminality.12 If no effective response can be made to terrorism within the bounds of legitimacy, then the application of extra-legal force will surely follow but will signal a defeat for constitutional democracy. The bounds of legitimacy in ‘total counterterrorism’, at least as specified in CONTEST, is not a war-style total victory but ‘to reduce the risk from international terrorism, so that people can go about their daily lives freely and with confidence’.13 This form of total counter-terrorism will not be achieved by the application of torture or other unlawful processes, such as secret renditions or unfair trials, but by implementation of fully tested and monitored measures at the same time as the attainment and protection of transcendental universal values. In this way, and as stated in our introduction, the aim is to deliver as much human security as national security.14

9 See Counter Terrorism and Security Act 2015 Pt V. 10 K Lowenstein, ‘Militant democracy and human rights’ (1937) 31 Am Pol Sci Rev 417, 432. See also A Sajó (ed.), Militant Democracy (Eleven International Publishing, Utrecht, 2004); M Thiel (ed.), The ‘Militant Democracy’ Principle in Modern Democracies (Ashgate, Aldershot, 2009); C Walker, ‘Militant speech about terrorism in a smart militant democracy' (2011) 80 Mississippi Law Journal 1395. 11 See McCann, Farrell and Savage v UK, App No 18984/91, Ser A 324 (1995), (1996) 21 EHRR 97; Cabinet Office, A Strong Britain in an Age of Uncertainty (Cm 7953, London, 2010) 3. Counter terrorism has top priority: para 0.7. 12 O Gross and F Ní Aoláin, Law in Times of Crisis (Cambridge University Press, Cambridge, 2006) ch 1. 13 Home Office, Pursue, Prevent, Protect, Prepare: The United Kingdom’s Strategy for Countering International Terrorism (Cm 7547, London, 2009) para 0.17. 14 See further C Gearty, Liberty and Security (Polity, Cambridge, 2013) 111. 467

Bibliography

Note: This bibliography reflects the most influential sources in the estimation of the contributors. It is therefore a selective guide rather than exhaustive.

Primary Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction 1993 (UNTS 317) Geneva Convention Relative to the Treatment of Prisoners of War, Aug 12, 1949, 75 UNTS 135 Geneva Convention Relative to the Protection of Civilian Persons in Time of War, arts 42, 78, Aug 12, 1949, 75 UNTS 287 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), June 8, 1977, 1125 UNTS 3 UN Action to Counter Terrorism: International Legal Instruments. Available at: www.un.org/en/ terrorism/instruments.shtml (accessed 10 March 2015). A v United Kingdom, App No 3455/05, 19 February 2009, (2009) 49 EHRR 29 American-Arab Anti-Discrimination Committee v Massachusetts Bay Transportation Authority, No 04-11652GAO, 2004 WL 1682859 (D Mass July 28, 2004) Big Brother Watch and others v United Kingdom, App No 58170/13, 4 September 2013 Cassidy v Chertoff, 471 F 3d 67, 70 (2d Cir 2006) El-Masri v FYR Macedonia, App No 39630/09, 13 December 2012 Hamdi v Rumsfeld, 542 US 507 (2004) Hamdan v Rumsfeld, 548 US 557 (2006) Gillan v United Kingdom App No 4158/05, 12 January 2010, (2010) 50 EHRR 45 McCann v United Kingdom, App No 18984/91, Ser A324 (1996) MacWade v Kelly, 460 F 3d 260, 271 (2d Cir 2006) Ex p Quirin, 317 US 1 (1942) Secretary of State for the Home Department v AF (no 3) [2009] UKHL 28 US v Ghailani, 733 F 3d 29 (2d Cir 2013), cert. denied, 134 S Ct 1523 (2014)

Secondary Ackerman, B, Before the Next Attack: Preserving Civil Liberties in an Age of Terrorism (Harvard University Press, Cambridge, 2006) Ackerman, B, ‘The Emergency Constitution’ (2004) 113 Yale Law Journal 1029 Ahmad, A,‘The ASEAN Convention on Counter Terrorism 2007’ (2013) 14(1–2) Asian-Pacific Journal on Human Rights and the Law 93 Albrecht, HL and Kilching, M, ‘Victims of terrorism protection’ in Wade, M and Maljevic, A, (eds) A War on Terror? (Springer, New York, 2010) Amoore, L, and de Goede, M, ‘Governance, Risk and Dataveillance in the War on Terror’ (2005) 43 Crime, Law & Social Change 149 Analytical Support and Sanctions Implementation Monitoring Team, Eleventh Report of the Analytical Support and Sanctions Implementation MonitoringTeam established pursuant to Security Council resolution 1526 468

Bibliography

(2004) and extended by resolution 1904 (2009) concerning Al-Qaida and the Taliban (New York, 2011) S/2011/245 Analytical Support and Sanctions Implementation Monitoring Team, Fourteenth Report of the Analytical Support and Sanctions Monitoring Team submitted pursuant to resolution 2083 (2012) concerning Al-Qaida and associated individuals and entities (New York, 2013) S/2013/467 Anderson, D, ‘Independent Review of Terrorism Laws: searchlight or veil?’ [2014] Public Law 403 Anderson, D, The Terrorism Acts in 2012 (Home Office, London, 2013) Anderson, D, ‘The Independent Review of Terrorism Legislation’ [2011] 5 European Human Rights Law Review 544 Argomaniz, J and Lynch, O, (eds), Internationl Perspectives on Terrorist Victimisation (Palgrave Macmillan, Basingstoke, 2015) Arquilla, J and Ronfeldt, D, (eds), Networks and Netwars: The Future of Terror, Crime, and Militancy (RAND, Santa Monica, 2001) Bellany, I, (ed.), Terrorism and Weapons of Mass Destruction (Routledge, Abingdon, 2007) Bigo, D, ‘Liaison Officers in Europe: New Officers in the European Security Field’ in Sheptycki, J (ed.), Issues in Transnational Policing (Routledge, London, 2000) Blackbourn, J ‘Evaluating the Independent Reviewer of Terrorism Legislation’ (2012) 65 Parliamentary Affairs 1 Blank, LR, ‘Targeted Strikes: The consequences of blurring the armed conflict and self-defense justifications’ (2012) 38 William Mitchell Law Review 1655 Blank, L, ‘A square peg in a round hole: stretching law of war detention too far’ [2011] 63 Rutgers Law Review 1169 Block, L, From Politics to Policing. The Rationality Gap in EU Policy-Making (Eleven International Publishers, The Hague, 2011) Boeving, JN, ‘The right to be present before Military Commissions and Federal Courts: Protecting national security in an age of classified information’ (2007) Harvard Journal of Law and Policy 463 Bottigliero, I, ‘Realizing the right to redress for victims of terrorist attacks’ in Salinas de Frias, AM, Samuel, KLH and White, ND (eds), Counter-Terrorism: International Law and Practice (Oxford University Press, Oxford, 2012) Bottigliero, I, and Sunga, LS, ‘Victims’ redress amidst terrorism’s changing tactics and strategies’ in B Saul (ed.), Research Handbook On International Law And Terrorism (Edward Elgar, Cheltenham, 2014) Bowling, B,‘Transnational policing: the globalization thesis, a typology and a research agenda’ (2009) 3(2) Policing 149 Breen-Smyth, M, ‘Theorising the “Suspect Community”: counterterrorism, security practices and the public imagination’ (2014) 7 Critical Studies on Terrorism 223 Bronitt, S, ‘Balancing liberty and security: critical perspectives on terrorism law reform’ in Gani, M and Mathew, P (eds), Fresh Perspectives on the ‘War on Terror’ (ANU E Press, Canberra, 2008) Brzoska, M, ‘Consequences of assessments of effectiveness for counterterrorist financing policy’ (2014) Administration & Society (early online access: doi: 10.1177/0095399714532272) Bures, O, ‘Private actors in the fight against terrorist financing: efficiency versus effectiveness’ (2012) 35 Studies in Conflict & Terrorism 712 Cancio Meliá, M, ‘The reform of Spain’s Antiterrorist Criminal Law and the 2008 Framework Decision’ in Galli, F and Weyenbergh A (eds), EU Counter-Terrorism Offences: What Impact on National Legislation and Case-Law? (l’Université Libre de Bruxelles, Brussels, 2012) Cancio Meliá, M,‘Terrorism and criminal law: the dream of prevention, the nightmare of the rule of law’ (2011) 14 New Criminal Law Review 108 Cancio Meliá, M, Los delitos de terrorismo: estructura típica e injusto (Reus, Madrid, 2010) Cancio Meliá, M, and Gómez-Jara Díez, C, (eds), Derecho Penal del enemigo. El discurso penal de la exclusión (Edisofer, Madrid, 2006) Carlile, Lord Alex, The Definition of Terrorism: A Report by the Independent Reviewer of Terrorism Legislation (Cm 7052, London, 2007) Chakravarthi, R, Mumbai Train Attacks: Why do Terrorists Target Public Transport Systems? (Institute for Peace and Conflict Studies, New Delhi, 2006) Chen, T, Jarvis, L, and Macdonald, S, (ed.), Cyberterrorism: Understanding, Assessment & Response (Springer, New York, 2014) Choudhury, T, and Fenwick, H, The Impact of Counter-Terrorism Measures on Muslim Communities (Equality 469

Bibliography

and Human Rights Commission, London, 2011) Coafee, J, Terrorism, Risk and the Global City:Towards Urban Resilience (Ashgate, Aldershot, 2009) Cohen, S, Folk Devils and Moral Panics: The Creation of the Mods and Rockers (MacGibbon and Kee, London, 1972) Cole, D, ‘Preserving privacy in a digital age: lessons of comparative constitutionalism’ in Davis, F, McGarrity, N, and Williams, G, (eds), Surveillance, Counter-Terrorism and Comparative Constitutionalism (Routledge, London, 2014) Cole, D, The Torture Memos: Rationalizing the Unthinkable (The New Press, New York, 2009) Cole, D, ‘English Lessons’ (2009) 62 Current Legal Problems 136 Cole, D, Fabbrini, F, and Vedaschi, A, (eds), Secrecy, National Security and the Vindication of Constitutional Law (Edward Elgar, Cheltenham, 2013) Communities and Local Government Select Committee, Preventing Violent Extremism: Sixth Report of Session 2009-10 (HC 2009-10, 65) Conway, M, ‘Cybercortical Warfare: Hizbollah’s Internet Strategy’ in Oates, S, Owen, D and Gibson, R, (eds), The Internet and Politics: Citizens,Voters and Activists (Sage, London, 2005) Conway, M, ‘Terrorist web sites: their contents, functioning, and effectiveness’, in Seib, P, (ed.), Media and Conflict in the Twenty-First Century (Palgrave Macmillan, New York, 2005) Conway, M, ‘Terrorism and the internet: new media, new threat?’ (2006) 59 Parliamentary Affairs 283 Corn, G, ‘Mixing apples and hand grenades: the logical limit of applying human rights norms to armed conflict’ (2010) 1 Journal of International Humanitarian Legal Studies 52 Cram, I, Terror and the War on Dissent – Freedom of Expression in the Age of Al-Qaeda (Springer, Berlin, 2009) Croft, S, Securitizing Islam (Cambridge University Press, Cambridge, 2012) Cronin, AK, How Terrorism Ends: Understanding the Decline and Demise of Terrorist Campaigns (Princeton University Press, New Jersey, 2009) Crowley, M, Dangerous Ambiguities: Regulation of Riot Control Agents and Incapacitants Under the Chemical Weapons Convention (Bradford University, Bradford, 2009) Crowley, MJA and Dando, MR, Down the Slippery Slope: A Study of Contemporary Dual-Use Research Potentially Applicable to Incapacitating Chemical Agent Development (Biochemical Security Project, University of Bath, 2014) Cuerda Riezu, A, and Jiménez García, F, (eds), Nuevos desafíos del Derecho Penal Internacional. Terrorismo, crímenes internacionales y derechos fundamentales (Tecnos, Madrid, 2009) Dando, MR, A New Form of Warfare: The Rise of Non-Lethal Weapons (Brassey’s, London, 1996) Daniels, RJ, Macklem, P, and Roach, K, (eds), The Security of Freedom: Essays on Canada’s Antiterrorism Bill (University of Toronto Press,Toronto, 2001) Daskal, J and Vladeck, SI ‘After the AUMF’ (2014) 5 Harvard National Security Journal 115 Davis, F, McGarrity, N, and Williams, G, (eds), Surveillance, Counter-Terrorism and Comparative Constitutionalism (Routledge, Abingdon, 2013) de Londras, F, Detention in the ‘War on Terror’: Can Human Rights Fight Back? (Cambridge University Press, Cambridge, 2011) de Londras, F, and Davis, FF, ‘Controlling the executive in times of terrorism: competing perspectives on effective oversight mechanisms’ (2010) 30 Oxford Journal of Legal Studies 19 Deflem, M, Policing World Society (Oxford University Press, Oxford, 2002) de Wet, E,‘From Kadi to Nada:Techniques favouring human rights over United Nations Security Council Sanctions’ (2013) 12 Chinese Journal of International Law 1 den Boer, M, Hillebrand, C and Nölke, A, ‘Legitimacy under Pressure: The European Web of CounterTerrorism Networks’ (2008) 46 Journal of Common Market Studies 101 Donohue, L, ‘Transplantation’ in Ramraj, V and others Global Anti-Terrorism Law and Policy (2nd edn, Cambridge University Press, Cambridge, 2012) Drake, CJM, Terrorist Target Selection (St Martins Press, New York, 1998) Eckes, C, EU Counter-Terrorist Policies and Fundamental Rights: The Case of Individual Sanctions (Oxford University Press, Oxford, 2009) Emsley, C, The English and Violence since 1750 (Hambledon Continuum, London, 2005) Fabbrini, F (ed.), Special Issue:‘Privacy & national security in the digital era’ (2015) 20 Tilburg Law Review 5 Faraldo Cabana, P, Puente Aba, LM and Souto García, EM (eds), Derecho Penal de excepción. Terrorismo e inmigración (Tirant lo Blanch,Valencia, 2007) Faure, M, and Hartlief,T, (eds), Financial Compensation for Victims of Catastrophes (Springer, Vienna, 2006) 470

Bibliography

Fijnaut, C, ‘International Policing in Europe: its present situation and future’ in Brodeur, JP (ed.), Comparisons in Policing: An International Perspective (Avebury, Aldershot, 1995) Financial Action Task Force Report, Risk of Terrorist Abuse in Non-Profit Organisations (FATF, Paris, 2014) Financial Action Task Force, Terrorist Financing (FATF, Paris, 2008) Forest, JJF (ed.), Homeland Security: Protecting America’s Targets Vols 1–3 (Praeger,Westport 2006) Forest, JJF, Howard, RD and Moore, JC, Homeland Security and Terrorism (2nd edn, McGraw Hill, New York, 2014) Fredman, S, ‘Justiciability and the role of courts’ in Fredman, S (ed.), Human Rights Transformed: Positive Rights and Positive Duties (Oxford University Press, Oxford, 2008) Gerspacher, N, ‘The history of international police cooperation: a 150-year evolution in trends and approaches’ (2009) 9 Global Crime 169 Gómez Colomer, JL and González Cussac, JL (eds), Terrorismo y proceso penal acusatorio (Tirant lo Blanch, Valencia, 2006) Graham, S (ed.), Cities,War and Terrorism (Blackwell, Oxford, 2004) Gray, D, and Citron, D, ‘The right to quantitative privacy’ (2013) 98 Minnesota Law Review 62. Greer, SC and White, A, Abolishing the Diplock Courts (Cobden Trust, London, 1986) Greer, S, ‘Comment and Debate – Reply to Marie Breen-Smyth, “Theorising the ‘Suspect Community’: Counterterrorism, Security Practices and the Public Imagination”’ (2014) 7 Critical Studies on Terrorism 1 Greer, S, ‘Anti-Terrorist Laws and the United Kingdom’s “Suspect Muslim Community”: A Reply to Pantazis and Pemberton’ (2010) 50 British Journal of Criminology 1171 Guild, E, ‘Examining the European Geography of Refugee Protection Exclusions, Limitations and Exceptions from the 1967 Protocol to the Present’ (Nijmegen Migration Law Working Papers Series, 2012) Guild, E, Security and Migration in the 21st Century (Polity, Cambridge, 2009) Guild, E (ed.), War or Crime? National Legal Challenges in Europe to the War in Iraq (Wolf, Nijmegen, 2009) Guiora, A, Homeland Security: what is it and where are we going? (CRC Press, Baton Rouge, 2012) Guiora, A, Global Perspectives on Counterterrorism (New York, Aspen Publishers, 2007) Gurulé, J and Corn, G, Principles of Counter-Terrorism Law (West Academic Publishing, St Paul, 2011) Hamm, M, ‘Prison Islam in the Age of Sacred Terror’ (2009) 49 British Journal of Criminology 667 Hannah, G, Clutterbuck, L and Rubin, J, Radicalization or Rehabilitation: Understanding the Challenge of Extremist and Radicalised Prisoners (RAND, Santa Monica, 2008) Henckaerts, J and Doswald-Beck, L, Customary International Humanitarian Law (ICRC, Geneva, 2005) Hocking, J, ‘Counter-terrorism and the criminalisation of politics: Australia’s new security powers of detention, proscription and control’ (2003) 49 Australian Journal of Politics & History Home Office, CONTEST: Annual Report (Cm 8583, London, 2013; Cm 8848, London, 2014) House of Commons Home Affairs Committee, Terrorism and Community Relations (HC 2004-05, 165) House of Commons Home Affairs Committee, Undercover Policing: Interim Report (HC 2012-13, 837) House of Commons Transport Committee, Transport Security (HC 2007-08, 191) House of Lords Select Committee on the Constitution, Surveillance: Citizens and the State (HL 2008-09, 18-I) Hufnagel, S, Policing Cooperation Across Borders: Comparative Perspectives on Law Enforcement within the EU and Australia (Ashgate, Farnham, 2013) Husband, C and Alam,Y, Social Cohesion and Counterterrorism: A Policy Contradiction? (Policy Press, Bristol, 2011) International Committee of the Red Cross Report, Terrorism and International Law: Challenges and Responses:The Complementary Nature of Human Rights Law, International Humanitarian Law and Refugee Law (ICRC, Geneva, 2002) Ip, J, ‘The reform of counterterrorism stop and search after Gillan v United Kingdom’ (2013) 13 Human Rights Law Review 729 Ip, J, ‘Sunset clauses and counterterrorism legislation’ [2013] Public Law 74 Jackson, J,‘The effect of human rights on criminal evidentiary processes: towards convergence, divergence or realignment?’ (2005) 68 Modern Law Review 737 Jackson, J and Doran, S, Judge Without Jury: Diplock Trials in the Adversarial System (Clarendon Press, Oxford 1995) Jakobs, G and Cancio Meliá, M, Derecho penal del enemigo (2nd edn, Civitas, Navarra, 2006) James, T and Jeffery, B, ‘Preventive Detention in Malaysia: constitutional and judicial obstacles to reform 471

Bibliography

and suggestions for the future’ (2013) 41 Georgia Journal of International and Comparative Law 535 Jenkins, B, Aviation Security: After Four Decades, It’s Time for a Fundamental Review (RAND, Santa Monica, 2012) Jenkins, D, Jacobssen, A and Heriksen, A (eds), The Long Decade: How 9/11 Changed the Law (Oxford University Press, Oxford, 2014) Jaggers, B, Anti-Terrorism Control Orders in Australia and the United Kingdom: A Comparison (Research Paper no. 28 2007-2008, Parliament of Australia, 2008) Jenkins, D, ‘In Support of Canada’s Anti-Terrorism Act: A Comparison of Canadian, British, and American Anti-Terrorism Law’ (2003) 66 Saskatchewan Law Review 419 Jenkins, D, ‘There and Back Again: the strange journey of special advocates and comparative law methodology’ (2011) 42 Columbia Human Rights Law Review 279 Jenkins, D, ‘Learning from Britain’s mistakes: best practices and legislative revision in Canadian Immigration Law’ (2011) 62 University of New Brunswick Law Journal 47 Jonsson, M, ‘Countering terrorist financing: successes and setbacks in the years since 9/11’ (2010) 3(7) Sentinel 18 Jones, CR, ‘Are prisons really schools of terrorism? changing the rhetoric on prison radicalization’ (2014) 16 Punishment and Society 74 Juss, SS, ‘Terrorism and the exclusion of refugee status in the UK’ (2012) 17 Journal of Conflict and Security Law 465 Kavanagh, A, ‘Constitutionalism, counterterrorism and the courts’ (2011) 9 International Journal of Constitutional Law 17 Kavanagh, A, ‘Special advocates, control orders and the right to a fair trial’ (2010) 73 Modern Law Review 836 Kerr, OS, ‘The mosaic theory of the Fourth Amendment’ (2012) 111 Michigan Law Review 311 Kretzmer, D, ‘Targeted killing of suspected terrorists: extra-judicial executions or legitimate means of defence?’, (2005) 16 European Journal of International Law 171 Kundnani, A, The Muslims Are Coming! Islamophobia, Extremism and the Domestic War on Terror (Verso, London, 2014) Leigh, I, ‘Accountability of security and intelligence in the United Kingdom’ in Born, H, Johnson, L and Leigh, I (eds), Who’s Watching the Spies. Establishing Intelligence Service Accountability (Potomac, Dulles, 2005) Letschert, R, Staiger, I and Pemberton, A, (eds), Assisting Victims of Terrorism: Towards a European Standard of Justice (Springer, Heidelberg, 2010) Levi, M,‘Combating the financing of terrorism a history and assessment of the control of “threat finance”’ (2010) 50 British Journal of Criminology 650 Levi, M, and Wall, DS,‘Technologies, security, and privacy in the post-9/11 European Information Society’ (2004) 31 Journal of Law and Society 194 Lennon, G,‘Precautionary tales: suspicionless counter-terrorism stop and search’ (2015) 15(1) Criminology & Criminal Justice 44 Lennon, G ‘Suspicionless stop and search – lessons from the Netherlands’ [2013] Criminal Law Review 978 Liebling, A and Straub, C, ‘Identity challenges and the risks of radicalisation in high security custody’ (2012) 203 Prison Service Journal 20 Llobet Anglí, M, Derecho Penal del terrorismo (La Ley, Madrid, 2010) Lupu,Y, ‘International judicial legitimacy: lessons from national courts’ (2013) 14 Theoretical Inquiries in Law 437 Lum, C, Kennedy, LW and Sherley, A, ‘Is counter-terrorism policy evidence-based? What works, what harms, and what is unknown’ (2008) 20(1) Psicothema 35 Lynch, A,‘The Impact of Post-Enactment Review on Anti-Terrorism Laws: Four Jurisdictions Compared’ (2012) 18 Journal of Legislative Studies 63 Lynch, A, ‘Legislating anti-terrorism: observations on form and process’ in Ramraj, V, and others (eds), Global Anti-Terrorism Law and Policy (2nd edn, Cambridge University Press, Cambridge, 2012) McEvoy, K, Paramilitary Imprisonment in Northern Ireland (Oxford University Press, Oxford, 2001) McKay, S, Covert Policing: Law and Practice (Oxford University Press, Oxford, 2011) Mackintosh, K, and Duplat, P, Study of the Impact of Donor Counter-Terrorism Measures on Principled Humanitarian Action (United Nations Office for the Coordination of Humanitarian Affairs/Norwegian Refugee Council, New York, 2013) 472

Bibliography

Masferrer, A and Walker, C (eds), Counter-Terrorism, Human Rights And The Rule Of Law: Crossing Legal Boundaries in Defence of the State (Edward Elgar, Cheltenham, 2013) Masferrer, A (ed.), Post 9/11 and the State of Permanent Legal Emergency (Springer, New York, 2012) Masferrer, A (ed.), Estado de Derecho y derechos fundamentales en la lucha contra el terrorismo. Una aproximación multidisciplinar (histórica, jurídico-comparada, filosófica y económica) (Thomson Aranzadi, Cizur Menor, 2011) Ministry of Defence, The Joint Service Manual of the Law of Armed Conflict ( JSP 383, London, 2004) Mitsilegas, V, EU Criminal Law (Hart, Oxford, 2009) Molas-Gallart, J and Perry Robinson, J, Assessment of Dual-use Technologies in the Context of European Security and Defence: Report for the Scientific and Technological Options Assessment, European Parliament (SPRU, Brighton, 1997) Moran, J, ‘Evaluating Special Branch and the use of informant intelligence’ (2010) 25 Intelligence and National Security 1 Morris, N and Hawkins, G, The Honest Politician's Guide to Crime Control (University of Chicago Press, Chicago, 1972) Mueller, JE and Stewart, MG, Terror, Security, and Money: Balancing the Risks, Benefits, and Costs of Homeland Security (Oxford University Press, Oxford, 2011) Murphy, C, EU Counter-Terrorism Law: Pre-emption and the Rule of Law (Hart Publishing, Oxford, 2012) Neuman, GL, ‘Anomalous Zones’ (1996) 48 Stanford Law Review 1197 Ní Aoláin, F and Gross, O (eds), Guantanamo and Beyond: Exceptional Courts and Military Commissions in Comparative Perspective (Cambridge University Press, Cambridge, 2013) Niles, JD, ‘Assessing the Constitutionality of the Alien Terrorist Removal Court’ (2008) 57 Duke Law Journal 1833 Norton Moore, J, (ed.), Civil Litigation Against Terrorism (Carolina Academic Press, Durham, 2004) Occhipinti, J, The Politics of EU Police Cooperation: Towards an European FBI? (Lynne Rieners Publishers, Boulder, 2003) Pantazis, C and Pemberton, S, ‘From the ‘Old’ to the ‘New’ Suspect Community: examining the impacts of recent UK Counter-Terrorist Legislation’ (2009) 49 British Journal of Criminology 646 Pape, R, Dying to Win:The Strategic Logic of Suicide Terrorism (Random House, New York, 2005) Perry Robinson, J, ‘Incapacitating Chemical Agents in Context: An Historical Overview of States’ policy’ in ICRC, ‘Expert meeting, “Incapacitating chemical agents”: Law enforcement, human rights law and policy perspectives, Montreux, Switzerland, 24th to 26th April 2012: Report’ (ICRC, Geneva, 2013) Petzsche, A, ‘Punishability of Preparatory Acts in German Criminal Law’ in Sinn, A (ed.), Menschenrechte und Strafrecht – Beiträge zur 4. Sitzung des International Forum on Crime and Criminal Law in the Global Era (V&R Unipress, Göttingen, 2013) Petzsche, A, Strafrecht und Terrorismusbekämpfung – Eine vergleichende Untersuchung der Bekämpfung terroristischer Vorbereitungshandlungen in Deutschland, Großbritannien und Spanien (Nomos Verlagsgesellschaft, Baden-Baden, 2013) Petzsche, A, ‘The European Influence on German Anti-Terrorism Law’ (2012) 13 German Law Journal 1056 Pickering, S, McCulloch, J and Wright-Neville, D, Counter-Terrorism Policing: Community, Cohesion and Security (Springer, New York, 2008) Rabasa, A, Pettyjohn, SL, Ghez, JJ and Boucek, C, ‘Deradicalising Islamist extremists’ (RAND, Santa Monica, 2010) Ramraj, V, Hor, M and Roach, K (eds), Global Counter-Terrorism Law and Policy (2nd edn, Cambridge University Press, Cambridge, 2012) Rehman, J, ‘Islam, “War on Terror” and the Future of Muslim Minorities in the United Kingdom: Dilemmas of Multi-Culturalism in the Aftermath of the London Bombings’ (2007) 29 Human Rights Quarterly 831 Renke,WN,‘Who controls the past now controls the future: counter-terrorism, data mining and privacy’ (2006) 43 Alberta Law Review 779 Research Society of International Law, Pakistan, The Case for Change: A Review of Pakistan's Anti-Terrorism Act of 1997 (RSIL, Lahore, 2013) Richards, NM, ‘The dangers of surveillance’ (2013) 126 Harvard Law Review 1934 Roach, K, The 9/11 Effect: Comparative Counter-Terrorism (Cambridge University Press, Cambridge, 2011) Roach, K, ‘The Post 9/11 Migration of Britain’s Terrorism Act, 2000’ in Choudhry, C, The Migration of Constitutional Ideas (Cambridge University Press, Cambridge, 2006) 473

Bibliography

Roach, K,‘Sources and Trends in Post 9/11 Anti-Terrorism Law’ in Goold, B and Lazurus, L, (eds) Human Rights and Security (Hart Publishing, Oxford, 2007) Rolington, A, Strategic Intelligence for the 21st Century (Oxford University Press, Oxford, 2013) Rosas, A,‘Counter-Terrorism and the rule of law: issues of judicial control’ in Salinas de Frías, A, Samuel, K and White, N (eds), Counter-Terrorism: International Law and Practice (Oxford University Press, Oxford, 2012) Rosenzweig, P, ‘Privacy and counter-terrorism: the pervasiveness of data’ (2010) 42 Case Western Journal of International Law 625 Rossiter, CL, Constitutional Dictatorship: Crisis Government in the Modern Democracies (Princeton University Press, New Jersey, 1948) Royal Society, Brain Waves Module 3: Neuroscience, conflict and security (Policy document 06/11, London, 2012) Salinas de Frías, A, Counter-Terrorism and Human Rights in the Case Law of the European Court of Human Rights (Council of Europe, Strasbourg, 2012) Sands, P, Lawless World (Allen Lane, London, 2005) Saul, B (ed.), Research Handbook on International Law and Terrorism (Edward Elgar, Cheltenham, 2014) Saul, B,‘Legislating from a radical Hague: The UN Special Tribunal for Lebanon invents an international crime of transnational terrorism’ (2011) 24 Leiden Journal of International Law 677 Saul, B, Defining Terrorism in International Law (Oxford University Press, Oxford, 2006) Schmid, AP and De Graaf, J, Violence as Communication: Insurgent Terrorism and the Western News Media (Sage, London, 1982) Silke, A (ed.), Prisons,Terrorism and Extremism (Routledge, London, 2014) Silke, A, ‘The Psychology of Suicidal Terrorism: terrorists, victims and society’ in Silke, A (ed.) Terrorists, Victims and Society: Psychological Perspectives on Terrorism and its Consequences’ ( John Wiley & Sons, Chichester, 2003) Shapo, MS, Compensation for Victims of Terror (Oceana, New York, 2005) Skoczylis, J, The Local Prevention of Terrorism in Strategy and Practice: “Contest” a New Era in the Fight against Terrorism (PhD thesis, University of Leeds, 2013) Solove, DJ, ‘“I’ve Got Nothing to Hide” and other misunderstandings of privacy’ (2007) 44 San Diego Law Review 745 Solove, DJ, ‘Privacy and power: computer databases and metaphors for information privacy’ (2001) 53 Stanford Law Review 1393 Spiez Laboratory, Technical Workshop on Incapacitating Chemical Agents, Spiez, Switzerland, 8–9 September 2011 (Spiez Laboratory, Speiz, 2012) Stewart, MG and Mueller, JE ‘A cost-benefit and risk assessment of Australian Aviation Security measures’ (2008) 4(3) Security Challenges 45 Steyn, J, ‘Guantanamo Bay’ (2003) 53 International & Comparative Legal Quarterly 1 Stohl, M, ‘Cyber Terrorism: a clear and present danger, the sum of all fears, breaking point or patriot games?’ (2006) 46 Crime Law and Social Change 223 Tomkins, A, ‘Parliament, human rights and counter-terrorism’ in Campbell, T, Ewing, KD and Tomkins, A (eds), The Legal Protection of Human Rights: Sceptical Essays (Oxford University Press, Oxford, 2011) Tyler,T, ‘Toughness vs. fairness: police policies and practices for managing the risk of terrorism’ in Lum, C and Kennedy, L (eds), Evidence-Based Counter-Terrorism Policy (Springer, New York, 2012) UN Office of the High Commissioner for Human Rights, Report on the Protection of Human Rights and Fundamental Freedoms while Countering Terrorism (A/HRC/8/13) UN Special Tribunal for Lebanon (Appeals Chamber), Interlocutory Decision on the Applicable Law:Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, STL-11-01/I, 16 February 2011 UN Office on Drugs and Crime, Model Legislative Provisions against Terrorism (Vienna, 2009) Vladeck, SI, ‘Terrorism prosecutions and the problem of constitutional cross-ruffing’ (2014) 36 Cardozo Law Review 709 Vladeck, SI, ‘The D.C. Circuit After Boumediene’ (2011) 41 Seton Hall Law Review 1451 Walker, C, Blackstone’s Guide to the Anti-Terrorism Legislation (3rd edn, Oxford University Press, Oxford, 2014) Walker, C, ‘“Protect” against terrorism: in service of the state, the corporation, or the citizen?’ in Jenkins, D, Jacobsen, A and Henriksen, A, The Long Decade: How 9/11 Changed the Law (Oxford University Press, New York, 2014) Walker, C, Terrorism and the Law (Oxford University Press, Oxford, 2011) 474

Bibliography

Walker, C, ‘‘Know thine enemy as thyself ’: discerning friend from foe under anti-terrorism laws’ (2008) 32(1) Melbourne University Law Review 275 Walker, C, ‘The governance of the critical national infrastructure’ [2008] Public Law 323 Walker, C ‘Cyber-Terrorism: legal principle and law in the United Kingdom’ (2005/2006) 110 Penn State Law Rev 625 Walker, C, ‘Intelligence and anti-terrorism legislation’ (2005) 44 Crime, Law and Social Change 387 Walker, C, ‘Political violence and commercial risk’ (2003) 56 Current Legal Problems 531 Walker, C, ‘The commodity of justice in states of emergency’ (1999) 50 Northern Ireland Legal Quarterly 164 Walker, C and Broderick, J, The Civil Contingencies Act 2004: Risk, resilience, and the law in the United Kingdom (Oxford University Press, Oxford, 2006) Walker, C and Rehman, J, ‘“Prevent” Responses to Jihadi Extremism’ in Ramraj, V, and others (eds), Global Anti-Terrorism Law and Policy (Cambridge University Press, Cambridge, 2011) Walton, C, Empire of Secrets: British Intelligence, the Cold War and the Twilight of Empire (Harper Collins, London, 2013) Warnes, R, Terrorist Patterns of Behaviour (RAND, Santa Monica, 2014) Weill, S, The Role of National Courts in Applying International Humanitarian Law (Oxford University Press, Oxford, 2014) Weimann, G, Terror on the Internet: The New Arena, the New Challenges (United States Institute of Peace Press,Washington DC, 2006) Weissbrodt, D and Bergquist, A, ‘Extraordinary rendition: a human rights analysis’ (2006) 19 Harvard Human Rights Journal 123 Welchman, L, ‘Anti-terrorism law and policy in Arab States’ in Ramraj, V, Hor, M, and Roach, K Global Anti-Terrorism Law and Policy (2nd edn, Cambridge University Press, Cambridge, 2012) Wheelis, W, Rózsa, W, and Dando, M (eds), Deadly Cultures: Biological Weapons Since 1945 (Harvard University Press, Harvard, 2006) Wilkinson, P, Homeland Security in the UK (Routledge, Abingdon, 2007) Wilsher, D, Immigration Detention: Law, History, Politics (Cambridge University Press, Cambridge, 2011) Worsley, R, Rail Passenger Security Screening: Passenger and Stakeholder Perceptions (Ipsos MORI, London, 2010) Yoo, J, The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11 (University of Chicago Press, Chicago, 2005) Zaidi, SMA, Madrassa Education in Pakistan: Controversies, Challenges and Prospects (Centre for International and Strategic Analysis, Haslum, 2013) Zedner, L, ‘Fixing the future? the pre-emptive turn in criminal justice’ in McSherry, B and others (eds), Regulating Deviance: The redirection of criminalisation and the futures of criminal law (Hart Publishing, Oxford, 2009) Zedner, L, ‘Pre-crime and post-criminology?’ (2007) 11(2) Theoretical Criminology 261

475

Index

9/11 attacks see September 11 2001, attacks of Abbott,Tony, 307 Abdullah-X (website), 430–431 Abu Hamza, 431 access to courts, right of, 91 accountability see also constitutional accountability; legal accountability: compliance with, 396; as core value, 466; effectiveness and, 304, 325–329; governmental structures for, 320; homeland security, 328–329; issues of, 133, 141, 145–146, 332, 335, 464, 466; lack of, 140, 145, 444, 462, 467; network of, 111–114; notification orders, 461; special and military courts, 211–212, 214; stop and search, 345–346; surveillance powers, 427; upholding by courts, 96–97, 438 Acxiom (data broker), 149 administrative detention: aliens, 251, 252, 255, 264; criminal and military regimes in relation, 56–57, 222–223; human rights and, 224–225; introductory themes, 10–11; Israel see Israel; as pre-emptive measure, 222–223; use of, 55, 224 affiliates and supporters of terrorist organisations, 46–48 Afghanistan see Taliban airline insurance, compensation for terrorism victims, 285–286 airports and air transport: introductory themes, 13; security measures, 356–359 Al-Hayat (website), 429 Al Qa’ida see also September 11 2001, attacks of: As-Sahab website, 429; economic sanctions, 1, 32, 210, 238–249; nihilism, 434; Pakistan as safe haven, 73, 381;‘war on terror’, 53;Yemen hospital attack 2013, 311 al-Rimi, Qassim, 312 Alexander I, King of Yugoslavia, assassination, 21 Alexy, Robert, 117 Algeria, definition of terrorism, 31–32 alias organisations, proscription of, 444 aliens: administrative detention, 251, 252, 255, 264; closed material procedures (CMPs), 476

268–270; employment rights, 252; entry restrictions, 251–252; exclusion orders, 251; expulsion decisions, 251, 256–259; extraordinary rendition, 259–260; fair trial, 262; human rights protection by ECtHR, 252–259, 264; introductory themes, 11; legal differentiation from citizens, 251, 263–264; measures against, 251–265; non-refoulement, international protection, 252–255; prohibition of torture, 256–259; right to liberty and security of person, 260–262; right to respect for private and family life, 263; social rights, 252; supranational courts as effective protection, 264–265 'all-risks' concept: commercial property loss, compensation for, 287; introductory themes, 12; stop and search, 334–335 American Civil Liberties Union, 154 Anderson, David, 107, 109, 301 Annan, Kofi, 293 armed conflict see war ‘armed propaganda’, terrorism as, 417 armed struggles see liberation movements As-Sahab (website), 429 association, challenges to right of, 91 Australia: access to official data, 298–299; alias organisations, 444;‘best practices’ approach to counter-terrorism laws, 273–274; closed material procedures (CMPs), 269–270, 270–271, 272–276; control orders, 88; counter-terrorism laws, 52, 300–302; criminalisation of extremist expressions, 438; designation of terrorist organisations, 305, 433; effectiveness of laws, 310; engagement strategies, 435;‘Five Eyes’ nations, 11, 266; immigration control, 269–270; Independent National Security Legislation Monitor (INSLM), 107, 301, 444; judicial review, 274–275; legal accountability, 120; migration of terrorism law, 75, 76; Muslim community, 312, 410; Privacy and Civil Liberties Oversight Board (PCLOB), 107; prohibited behaviour orders, 270–271; proscription of

Index

terrorist organisations, 442–443; prosecutions, 61; securitisation, 275–276; terrorism threat assessment level, 446 aviation security see airports and air transport Bahamas, migration of terrorism law, 75 Bahrain, definition of terrorism, 78–79 Balfour, Gerald, 436 Barthou, Louis, assassination, 21 Basque seperatists see Spain Bernadotte, Count Folke, assassination, 30 ‘best practices’ approach to counter-terrorism laws, 273–274 Bingham of Cornhill, Lord, 113–114, 139 biological terrorism threat, 366 Blair,Tony, 102, 306 Breivik,Anders, 285, 432, 434 British Medical Association (BMA), 367 Bush, George W, 2, 206, 211, 212, 213, 241, 279 Cameron, David, 178, 425 Canada:‘best practices’ approach to counterterrorism laws, 273–274; closed material procedures (CMPs), 270, 271, 272–276; constitutional accountability, 103, 110–111; control orders, 88; counter-terrorism laws, 99; counter-terrorism measures, 5; criminalisation of extremist expressions, 439; definition of terrorism, 75–76; designation of terrorist organisations, 305;‘Five Eyes’ nations, 11, 266; immigration control, 270; judicial integrity, 118; judicial review, 274–275; legal accountability, 120; migration of terrorism law, 75–76, 82; privacy, protection of, 159; review bodies, 105; securitisation, 275–276; ‘special advocates’, 123; torture, information obtained by use of, 122–123 Carlile of Berriew, Lord, 75, 76, 108–109, 111 Chechnya see Russia chemical terrorism threat, 366 chemical weapons see incapacitating chemical agents (ICA) weapons China: definition of terrorism, 30; incapacitating chemical agents (ICA) weapons, 376 Churchill,Winston, 137 civil liberties, homeland security and, 327 civil litigation by victims, 291–292 civil rights, challenges to, 91 Clarke, Roger A, 151 closed material procedures (CMPs): beginnings in immigration control, 268–270;‘best practices’ approach, 273–274; causes for spread of, 272; definition of, 266; due process and, 266–267, 268, 280–281; further expansion beyond immigration control, 270–272; introductory themes, 11; judicial review, 271, 274–275; liberty and, 267; open justice,

276–278; public interest immunity (PII) doctrine, 271; securitisation and, 275–276; sensitive intelligence, 276; special tribunals, 278–280 collateral damage considerations, 327 commercial property loss, compensation for, 286–288 community relations, securitisation and, 14, 400–415 compensation see victims of terrorism computerised data see dataveillance constitutional accountability: accountability network, 111–114; agents for, 100; cherrypicking of recommendations, 110–111; definition of, 99–100; effectiveness, 107–111; enforcement power of, 109–110; introductory themes, 8; legislative process, 100–103; political loyalty and, 108; post-enactment, 103–107; precursor crimes, 199; review bodies, 104–107; scope of, 108–109; sunset clauses, 103–104; 'terrorism law' defined, 99 constitutionalism see also constitutional accountability: comparative constitutionalism, 160; as core value, 466; criminalisation and, 438; due process and, 91; effectiveness and, 436; engagement and, 436; homeland security, 332; judicial review see judicial review; law and, 143; liberty and, 89, 91; prohibition of torture, 90 CONTEST strategy see United Kingdom control orders, 88 convicted terrorists see penology Cory, Peter, 129 cost of counter-terrorism measures, consideration of, 327 cost–benefit analysis of laws, 307–308 Coulon,Auguste, 136 Council of Europe, victim redress measures, 293 counter-terrorism: cohesion within, 464–465; conceptual framework, 2–6, 463–467; conclusions, 463–467; content of current study, 6–15; core legal values and, 466–467; counter-productiveness of military force, 365; laws see counter-terrorism laws; propositions as to, 309–312, 325–326; research, distribution across themes, 466; security (concept) and, 3; shift from ‘War on Terror’ to, 2–3, 463; strategies, 3–4, 6–8; triggering events, 1–2; variation within, 465–466; war and, 7, 52–67 counter-terrorism laws: approaches to, 4–6; background to, 300;‘best practices’ approach, 273–274; cost–benefit analysis framework, 307–308; definition of, 99; effectiveness see effectiveness; Feindstrafrecht concept, 203–205; impact on human rights, 89–91; key features, 86–89; levels of, 86; monitoring bodies see monitoring bodies; proliferation of, 463; 477

Index

review see constitutional accountability; judicial review; specific national measures see orders and other instruments; terrorism as legal concept, 6–7, 19–37; theme of, 6–8 counter-terrorist finance (CTF) see financial counter-measures court processes see also judicial review: access to courts, 91; closed material procedures (CMPs) see closed material procedures (CMPs); exceptional courts see exceptional courts; legitimacy and effectiveness see legal accountability criminal justice see also emergency laws; policing: adaptation to counter-terrorism, 9–10; counter-terrorism and war in relation, 61–65; court processes, 10; definitions of terrorism, 19–37; direct criminalisation, 437–438; Feindstrafrecht concept, 203–205; Honest Politician’s Guide to Crime Control,The, 297; indirect criminalisation, 438–441; precursor crimes see precursor crimes; prosecutors and legal accountability, 120, 123–124; victim redress, 283–284 ‘criminal law of the enemy’ see emergency laws criminalisation, constitutionalism and, 438 cyber-attack see internet Czech Republic, incapacitating chemical agents (ICA) weapons, 376 dataveillance, 147–162; database uses, 149–150; effectiveness for counter-terrorism, 152–155; information gathering and storage, growth of, 148–149; introductory themes, 9; patternbased queries, 151–152; personal dataveillance and mass dataveillance distinguished, 151–152; predictive potential, 147, 150–151; privacy and, 147–148, 155–162; private data brokers, 149 de Menezes, Jean Charles, shooting of, 291 de Silva, Sir Desmond, 137 definitions of terrorism, 6–7, 19–37, 68–84 democratic values, counter-terrorism balanced with, 432–433, 436 Denning,Alfred Denning, Lord, 129 detention see also interrogation: administrative see administrative detention; control orders, 88; counter-terrorism and war in relation, 55–58; criminal and military regimes in relation, 163–178; human rights and, 88; illegal detention, 45–46; international humanitarian law (IHL), 176–177; introductory themes, 9; prolonged detention without charge, 42, 50 dialogue see engagement disaster relief, compensation for terrorism victims, 288–289 discrimination, securitisation and, 14, 400–415 displacement of terrorism threat, risk of, 330 478

domestic laws see national laws due process: constitutionalism and, 91; right to, 91; tradition of, 266 Dworkin, Ronald, 117 economic imperatives for transport systems protection, 364 economic sanctions, 1 effectiveness: access to official data for research on, 298–299; accountability and, 304, 325–329; case study, 307–308; conceptual issues in evaluating, 302–306; constitutionalism and, 436; cost–benefit analysis framework, 307–308; counterterrorism must be conducted in balance with competing interests of human life, financial cost, and civil liberty, 326; counter-terrorism must have short-term and long-term perspectives, 325;‘first order of impact’ concept, 302–303; frequency of attacks as measure, 311; homeland security, 325–327; importance of gauging, 300–302; indirect impact of measures, 303; introductory themes, 11; lack of research, reasons for, 299; law has no discernible impact, 310–311; law increases terrorism threat, 311–312; law is demonstrably effective, 309–310; of measures as constraints on security discourse, 303–304; methodological issues in evaluating, 304–305; need for research on, 297–298; propositions as to, 309–312, 325–326;‘second order of impact’ concept, 303; specific measures, direct impact of, 302–303; terrorism not wholly preventable, 325;‘third order of impact’ concept, 303–304; threat-reduction measurement, 308–312; value of research on, 312 Egypt: definition of terrorism, 31–32, 76–77; migration of terrorism law, 76–79 emergency laws: affiliates and supporters of terrorist organisations, 45, 46–48; case-law interpretation, 45–46; conceptual contradictions, 48; conclusions as to, 51; enhanced penalties, 42–43, 48–49; exceptions within ordinary criminal procedures, 42; illegal detention, 45–46; introductory themes, 7; pre-emptive punishment, 43–44; prolonged detention without charge, 42, 50; reform of existing criminal law, 40–41; security justifications for, 38–40; severity of punishment, 42–43 employment rights of aliens, 252 'enemy' law see emergency laws engagement strategies: constitutionalism and, 436;‘hearts and minds’, 13, 380, 436–437; use of, 436–437 enhanced interrogation, 88

Index

enhanced penalties, 48–49 enhanced sentences, 452–453 entry restrictions on aliens, 251–252 ETA (Euskadi Ta Askatasuna) see Spain Ethiopia, definition of terrorism, 83 European Court of Human Rights (ECtHR): aliens, 252–259, 264; closed material procedures (CMPs), 269–270; criminal investigations, 127; detention, 45, 123–124, 172, 176–177; exceptional courts, 218–219; extraordinary rendition, 96; informers and secrecy, 121; internet control, 424; interrogation, 174; legitimacy and effectiveness of judgments, 119; limits to legal accountability, 128–129; margin of appreciation, doctrine of, 94, 121–122; privacy, protection of, 160–161;‘special advocates’, 123; stop and search, 337, 340–341; surveillance powers, 122, 140, 141, 143; victim redress, 284 European Union: constitutionalism and human rights, 89; Counter Terrorism Strategy 2005, 3–4; definition of terrorism, 29, 36, 80–81; engagement strategies, 435; Eurojust, 186, 187; European Drugs Unit (EDU), 190–191; European Police Office (Europol), 186, 187, 188, 190–192; financial counter-measures, 87; harmonisation of laws, 69, 80–83, 187; internet control, 427–428, 430; judicial integrity, 119; judicial review, 93–97; legal accountability, 126–127, 128–129; legislative protection of human rights, 92; NATO and, 186; Nordic Passport Control Agreement (NPCA), 185; police cooperation, 179–181; Police Working Group on Terrorism (PWGT), 181, 186, 187, 188–190; policing strategies, 184–192; privacy, protection of, 90, 158, 160–161; Radicalisation Awareness Network (RAN), 429; Schengen Convention 1985, 184; Schengen Convention 1990, 186; surveillance powers, 87;TREVI group of ministers, 188–192; victim redress, 283, 285 evidence, intelligence as, 142, 143–145 exceptional courts: accountability of, 211–212, 214; appointments to, 215; assessment of, 221; authorisation basis, 210–212; characteristics of, 210–218; criticisms of, 218–220; demarcation from ordinary courts, 217–218; as democratic legal process, 206–208; due process and, 207–208; evidentiary rules, 214–215; independence of, 216; introductory themes, 10; jurisdiction, 213–214; operational limits, 212–213; ordinary courts’ rules compared, 214–215; political context, 210–212; procedural rules, 214–215; reasons for using, 208–210; sentencing powers, 216–217; use of, 206

exceptionalism see emergency laws executive powers, 10, 222–236 extradition: extraordinary rendition, 88, 96, 219, 259–260; pre-1945, 20, 21–22 extremist expressions: criminalisation (direct, 437–438; indirect, 438–441); democracy and control, 432–433, 435; engagement strategies, 436–437; introductory themes, 14; political strategy against, 434–435; political strategy of, 433–434; political tactical responses to, 436–445;‘preachers of hate’, 432; proscription, 441–445; prospects for successful control, 446–447 fair trial, right to, 262 family life, challenges to right to, 90 Farr, Charles, 141 Financial Action Task Force (FATF) see UN Financial Action Task Force (FATF) financial counter-measures: adoption, 87, 237–238; assessment of, 245–250; introductory themes, 10–11; judicial review, 95; key features, 238–240; legislation, 242–244, 248–250; obstacles to assessing, 240; reporting regimes, 244–245, 247–248; sanctions lists, 240–242, 246–247; Spain, 197–198; successes, 240–245; terrorism finance generally, 237 Finucane, Patrick, murder, 137, 174 fiscal responsibility, counter-terrorism measures and, 327 ‘Five Eyes’ nations, 11, 266 France: criminalisation of extremist expressions, 440; definition of terrorism, 30, 31; internet control, 420; legal accountability, 125;‘Op Charlie Hebdo’, 420 Franklin, Benjamin, 326 free speech, challenges to right to, 91 freedom of expression, right to, 419 Gambia, definition of terrorism, 83 geopolitical concerns as to counter-terrorism laws, 327 Germany: counter-terrorism strategy, 54; definition of terrorism, 31, 34; Feindstrafrecht concept, 203–205; harmonisation with EU law, 82; judicial review, 97; legal accountability, 124, 125; precursor crimes, 200–203 global law enforcement see policing ‘Global War on Terror’ see ‘War on Terror’ glorification of terrorism see extremist expressions Google, 149 Grenada, migration of terrorism law, 75 Guantánamo see United States

479

Index

Hamas: Israel and, 52; political strategy, 433; UN Draft Comprehensive Terrorism Convention, 26 Hamdi,Yaser Esam, 167–168 Hannigan, Robert, 426 Hawkins, Gordon, 297 ‘hearts and minds’ strategy, 13, 380, 436–437 Holder, Eric, 207–208 homeland security: accountability, 328–329; challenges for, 329–333; civil liberties and, 327; collateral damage, 327; constitutionalism, 332; definition of, 315–317; displacement of terrorism threat, 330; effectiveness, 325–327; fiscal responsibility, 327; frameworks, 317–325; frequency of reporting, 327; geopolitical concerns, 327; intelligence, validation of, 327; interdependencies, 330–331; introductory themes, 12; policing, 321–324; private sector involvement, 324–325, 332–333; rule of law and, 326; securitisation, 331–332; threat analysis, 326 Honest Politician’s Guide to Crime Control,The, 297 Hong Kong, legal accountability, 125 human rights see also European Court of Human Rights (ECtHR): accountability for abuses, 96–97; aliens, 252–259; constitutional accountability, 101–102; as core value, 466; counter-terrorism laws and, 85–98; internet and, 418; introductory themes, 8–9; legislative protection, 92; supranational courts as effective protection, 264–265 immigration control see aliens incapacitating chemical agents (ICA) weapons: chemical or biological terrorism threat, 366; Chemical Weapons Convention 1993, 365, 373–379; critiques of, 366–367; dangers of proliferation, 378–379; definition of, 366; delivery mechanisms, 371–372; development by terrorist groups, 378; dual-use concerns, 372–373, 378; introductory themes, 13; law enforcement uses, 374–375, 378; medical uses, 375–376; military uses, 374; monitoring, 372–373; national developments, 376–378; potential ICAs, 370–371; protective uses, 375, 378; research and development, 368; science and technology advances applied to, 369–373 India: administrative detention, 55; definition of terrorism, 72; incapacitating chemical agents (ICA) weapons, 376; internet control, 429; legal accountability, 124; Mumbai train attacks 2006, 350 individual human rights see human rights individual property loss, compensation for, 289 Indonesia: legal accountability, 124; rehabilitation schemes, 458–459 480

information, right to seek, receive, and impart, 419 information handling see closed material procedures (CMPs) informers and secrecy, 121 injury from terrorism abroad, compensation for, 290–291 insurance, victim redress see victims of terrorism intelligence see also surveillance powers: CMPs see closed material procedures (CMPs); definition of, 133, 142; as evidence, 142, 143–145; introductory themes, 8–9; protections against misuse, 142–143; sharing see closed material procedures (CMPs); uses of, 133–134; validation of, 327 Intelligence Services Commissioner, 140 interdependencies, homeland security and, 330–331 International Committee of the Red Cross (ICRC), definition of terrorism, 27–28 International Conferences for the Unification of Criminal Law 1930–1935, 20–21 international courts: judicial integrity, 118–119; legal accountability, 126–127, 128 International Criminal Court (ICC): definition of terrorism, 23–24; League of Nations Convention, 21; victim redress measures, 294–295 International Criminal Police Commission, 21 international criminal tribunals, 295 international human rights law see human rights international humanitarian law (IHL): definition of terrorism, 27; recognition of, 176–177 International Law Commission (ILC), definition of terrorism, 22–23 internet: blocking, 428–429;‘content control’ measures, 418–420; cyber-attack, 429; human rights, 419; introductory themes, 14; Islamic State, 418;‘negative’ control measures, 420–429; non-government anti-terrorist initiatives, 430–431;‘positive’ control measures, 429–431; prospects for successful control, 431; terrorist uses, 417; terrorist websites, 417–418 Interpol see policing interrogation, criminal and military regimes in relation, 163–178 IRA (Irish Republican Army) see Northern Ireland; United Kingdom Iran, incapacitating chemical agents (ICA) weapons, 376 Iraq: definition of terrorism, 78; detention, 56 Ireland: harmonisation with EU law, 82; judicial review, 97; legal accountability, 120, 128; media restrictions, 416; Special Criminal Court, 208, 213, 215 Islamic Human Rights Commission (IHRC), 383

Index

Islamic State:Al-Hayat website, 429; aspirations for statehood, 434; internet usage, 416, 418; rise of, 413 Israel: administrative detention (frameworks, 225–226; Israeli territory, 226–227; judicial review, 229–236; occupied territories, 227; Unlawful Combatant Act 2002, 57, 227–229; use of, 55); definition of terrorism, 30, 34; incapacitating chemical agents (ICA) weapons, 376–377; internet control, 419; judicial review (academic studies on, 95; administrative detention, 229–231; effectiveness, 233–234; fairness, 234–236; judicial management model, 231; special advocate model, 231–233); legal accountability, 124; military courts, 212; victim redress, 285;‘war on terror’, 52, 53; Yom Hazikaron, 285 Italy: harmonisation with EU law, 82; judicial review, 94 Jenkins, Brian M, 306 Jordan, definition of terrorism, 78–79 judicial review: failures, 92–94; judicial deference and, 93–94; jurisdictional rules and, 93; nonjudicial mechanisms see constitutional accountability; secrecy privilege and, 94; successes, 95–98; weakness, 274–275 Karzai, Hamid, 3 Katanga, Germain, 128 Kelsen, Hans, 116 Kennedy, Mark, 139, 144 Kenya, migration of terrorism law, 75 Khomeini,Ayatollah Ruhollah, 290 Koh, Harold Hongju, 207 Kohl, Helmut, 190 Kurdistan Workers’ Party (PKK), 312 law, constitutionalism and, 143 law enforcement see policing law of armed conflict (LOAC) see war Lawrence, Stephen, murder, 145 League of Nations: International Criminal Court (ICC), 21; terrorism conventions, 21 legal accountability: effectiveness as measure, 116, 117–118; efficacy in relation to categories of actors, 120–125; fairness and, 120–121; judges' counter-terrorism role, 116–119;‘legality’ as measure, 116–117; legitimacy as measure, 116, 117–118; limits to scope of, 127–130; margin of appreciation, doctrine of, 121–122; models for judicial counter-terrorism, 125–127; national security and, 129–130; secrecy and, 121; surveillance powers and, 122; torture, information obtained by use of, 122–123

legal transplantation of terrorism definitions, 68–84 legislature: constitutional accountability and, 100–103; legal accountability and, 120, 124–125; protection of human rights, 92 ‘less lethal’ weapons see incapacitating chemical agents (ICA) weapons liberation movements, definitions of terrorism, 25–26 liberty see also privacy, right to: constitutionalism and, 89, 91; definition of, 267 liberty and security of person, right to, 260–262 Litvinenko,Alexander, assassination, 129 Lloyd of Berwick, Lord, 71–72, 300–301 London see United Kingdom Macdonald of River Glaven, Lord, 106 Macedonia (FYROM), extraordinary rendition, 259–260 madrassas, 396–397 Maduro, Miguel, 93 Malaya campaign,‘hearts and minds’ strategy, 383, 436–437 Malaysia: definition of terrorism, 25–26, 74; migration of terrorism law, 74–75; perception of terrorism, 383–384; prevention strategies, 387–388, 393–399 manifestations of extremism see extremist expressions margin of appreciation, doctrine of, 121–122 marine transport, security measures, 349–360 media usage by terrorists, 416 see also Internet migration of terrorism law, 68–84 Miliband, David, 3 military courts see exceptional courts military force, counter-productiveness of, 365 military powers, detention and interrogation, 163–178 Mill, John Stewart, 436 Miranda, David, 331–332 monitoring bodies: Independent National Security Legislation Monitor (INSLM) (Australia), 107, 301, 443; Interception of Communications Commissioner (UK), 140; Joint Committee on Human Rights (JCHR) (UK), 101–102, 106, 110, 111, 112, 113; Privacy and Civil Liberties Board (UK), 109; Privacy and Civil Liberties Oversight Board (PCLOB) (Australia), 107; Special Immigration Appeals Commission (SIAC) (UK), 268–269 Morris, Norval, 297 Morrison, Danny, 433 Murphy, Cian, 81 Musharraf, Parvez, 72 Muslim community: human rights of, 91; madrassas, 396–397; perceptions of, 400–401; 481

Index

prevention strategies and, 385–386, 391–393; resentment against counter-terrorism measures, 155, 312; securitisation and see securitisation Mutallab, Umar Farouk Abdul, 357–358 national laws, definitions of terrorism: pre-2001, 30–32; responses to 9/11, 33–36 National Research Council (NRC), 371–372 NATO, information exchange with EU, 186 Nelson, Rosemary, murder, 174 New Zealand:‘Five Eyes’ nations, 266; legal accountability, 126 non-border suspicionless stop and search see stop and search non-discrimination, challenges to, 91 non-refoulement, international protection, 252–255 Northern Ireland: alias organisations, 444; arrest powers, 172; collusion inquiry, 129, 173; compensation for individual property loss, 289; criminal and military regimes in relation, 171; criminal injuries compensation, 283; Criminal Injuries Compensation schemes, 284; criminalisation policy, 9; definition of terrorism, 71; designation of terrorist organisations, 305; detention, 172–173; Diplock Courts, 212, 214, 217; early release scheme, 457–458; Independent Reviewer of Terrorism Legislation, 109; interrogation, 173–174; IRA campaign deaths, 38, 283; judges' counter-terrorism role, 118, 121, 123; juryless trials, 208–209; Key Persons Protection Scheme, 290; Limited Home Protection Scheme, 290; media restrictions, 417, 434; Omagh bombing, civil claims against perpetrators, 292; preventive strategy, 13; proscription of terrorist organisations, 443–444; protection for individuals, 290; sentencing, 453–454; Sinn Féin's political strategy, 433 Norway, compensation for Anders Breivik attacks, 285 notification orders, accountability, 461 notification schemes, 461–462 Obama, Barak, 153 Omand, Sir David, 331 ‘Op Charlie Hebdo’, 420 orders and other instruments: anti-social behaviour orders (ASBOS) (UK), 270; control orders (Australia), 88; control orders (Canada), 88; control orders (UK), 88, 106, 114; exclusion orders (UK), 251; prohibited behaviour orders (Australia), 270–271 Osama bin Laden, 384 Owen, Sir Robert, 129 482

Pakistan:Al Qa’ida in, 73, 384; definition of terrorism, 25–26, 72–73, 75; madrassas, 396–397; migration of terrorism law, 72–74; perception of terrorism, 383–384; prevention strategies, 388–391, 396–398;Taliban and, 389–390; United Kingdom and, 390 passport controls, 185, 312, 359, 462 penology: categorisation of terrorist prisoners, 447; early release, 457–458; enhanced sentences, 452–453; general sentencing laws, 448–452; imprisonment, 447, 454–459; incentives for cooperation, 453; introductory themes, 14; key aspects of, 447; MAPPA, 459–460; Northern Ireland see Northern Ireland; notification schemes, 461–462; passport controls, 462; policy priorities, 462; post-release treatment, 447, 459–462; rehabilitation schemes, 458–459; release on licence, 459–460; sentencing, 447–454 Phelps, Fred, 432 physical protection for individuals, state duty of, 290 Pitt,William, 134–135 Poindexter, John, 151, 155 Poland: extraordinary rendition, 259–260; harmonisation with EU law, 82, 83 Police Working Group on Terrorism see European Union policing: changes post-9/11, 179; cross-border strategies, 180–181; European Union, 179–181, 184–192; global and local level contrasted, 179–193; homeland security, 321–324; International Criminal Police Commission (ICPC), 181–182; International Liaison Officers (ILOs), 181, 182–184, 192; international networks, 179–184; Interpol, 181–182, 189, 191; introductory themes, 9; legal accountability and, 120, 121, 123–124; national level regulation, 179–181 Posner, Richard, 155 precautionary approach to terrorism risk, 465 precursor crimes: definition of, 194–195; function of, 195–196; Germany, 200–203; introductory themes, 10; preventive efficiency of, 203–205; Spain, 196–200 ‘Prepare’: CONTEST, 3; as theme, 6, 12 prevention strategies: comparative survey, 13, 383–399; CONTEST, 3; future of, 398–399; ‘hearts and minds’ approach, 13, 383; precautionary approach, 465; theme of, 6, 13–15 prison regimes see penology privacy, right to: challenges to, 90; dataveillance and, 147–148, 155; definition of privacy, 155–158; protection of, 158–162 private and family life, right to respect for, 263 private data brokers, 149

Index

private sector agencies, homeland security, 324–325, 332–333 PrivateEye (data broker), 149 Profumo affair, 129 propaganda and terrorism, 416–417 see also Internet property, challenges to right to, 91 proscription of terrorist organisations, 441–445 prosecutions see criminal justice ‘protective security’: CONTEST, 3; theme of, 6, 12–13 public interest immunity (PII) doctrine, 271 pursuit: CONTEST, 3; theme of, 6, 8–12 Qatar, definition of terrorism, 78 radicalisation, prevention of see prevention strategies rail transport, security measures, 354–356 Rawls, John, 117 Raz, Joseph, 117 Red Cross see International Committee of the Red Cross (ICRC) reflexive social impact perspective: analytical approaches, 410–411; core assumptions, 409; evidence basis, 410–411; key concepts, 409–410; methodology, 410–411; normative framework, 412–413; official information, use of, 411–412; policy implications, 413–414 regional organisations, counter-terrorism laws, 28–30 Reid, Richard, 356 religious discrimination see discrimination religious education and prevent strategy, 396–397 reporting of terrorism threats, frequency of, 327 respect for private and family life, right to, 263 Rifkind, Sir Malcolm, 141 Rigby, Lee, 405, 426 risk: 'all-risks' concept see 'all-risks' concept; death from terrorism, 304; displacement of terrorism threat, 330 road transport, security measures, 351–353 Robinson, Mary, 2 Romania, terrorism convention proposal, 20 Roosevelt, Franklin D, 326 Rossiter, Clinton, 434 Royal Society, 370, 371 rule of law, homeland security and, 326 Rushdie, Salman, 290 Russia: Chechen suicide bombings, 355; Chechnya operations, 66; definition of terrorism, 31–32; incapacitating chemical agents (ICA) weapons, 377; Moscow Metro bombing 2004, 362; rail transport security measures, 354

Sands, Bobby, 433 Saudi Arabia: definition of terrorism, 79; rehabilitation schemes, 457; Riyadh attacks 2003, 352 Scheinin, Martin, 89 Schmitt, Carl, 116 sea transport, security measures, 349–360 secrecy: informers and, 121; privilege, and judicial review, 94 sectoral counter-terrorism conventions, 24 securitisation: alternative framework see reflexive social impact perspective; analytical approaches, 404–405; core assumptions, 401–403; evidence basis, 404–405; homeland security, 331–332; introductory themes, 14; Islamophobia and, 404; key concepts, 403–404; legal systems, 275–276; methodology, 404; nondiscrimination and, 404; normative framework, 406; policy implications, 407–408; ‘securitisation thesis’, 400–401, 414–415; terminological approaches, 404–405 security (concept), Counter-Terrorism and, 3 security design challenges, transport systems, 363–364 security services: effectiveness reporting by, 304; legal accountability and, 120, 121–122 self-determination see liberation movements sensitive information see closed material procedures (CMPs) September 11 2001, attacks of: Compensation Fund, 286, 288–289; dataveillance, 150, 154; responses to, 1, 2, 32–36, 163 Shapiro, Martin, 117 Sharif, Nawaz, 72 Sherman, Lawrence, 298 Sinn Féin see Northern Ireland Smith, General Rupert, Sherman Snowden, Edward, 134, 147, 151, 331, 420 social rights of aliens, 252 South Africa: definition of terrorism, 30; legal accountability, 125, 128; migration of terrorism law, 75, 76 Spain:Accion Nacionalista Vasca (ANV), 47; collaboration, offence of, 196–200; constitutional accountability, 199; criminalisation of extremist expressions, 440; definition of terrorism, 31, 34; emergency laws, 38–51; ETA campaign casualties, 38; EU law, 197; financial counter-measures, 197–198; Gestoras Pro-Amnistia, 47; Grupos Antiterroristas de Liberacion, 40; Herri Batasuna (HB), 47; Koordinadora Abertzale Sozialista-Ekin (KAS-EKIN), 47; Parot case, 40; precursor crimes, 196–200; propaganda, offence of, 198–199; proscribed organisations, 46–48; prosecutions, 61; UK measures compared, 38–40, 50 483

Index

special courts, accountability of, 211–212, 214 Sri Lanka,Tamil Tigers campaign, 66 stop and search: accountability, 345–346; control over, 335; definition of, 334–335; introductory themes, 12–13; legality (assessment of, 343–345; UK, 340–341; US, 341–343); model framework, 345–347; powers, 335–336; UK and US compared, 334, 340–345, 348; use of, 337–340 suicide terrorism, measures, 360–363 sunset clauses, 103–104 supporters of terrorist organisations see affiliates and supporters of terrorist organisations surveillance powers see also intelligence: accountability, 427; historical context, 134–138; human rights and, 87; introductory themes, 8–9; judicial review, 122; legal framework, 138–141; mass surveillance see dataveillance suspicionless stop and search see stop and search Sykes, Sir Richard, assassination, 190 Syria, incapacitating chemical agents (ICA) weapons, 377 Taliban: economic sanctions, 1, 32, 238–249; Pakistan and, 386–387;‘war on terror’, 53 Tamil Tigers see Sri Lanka Tanzania: definition of terrorism, 83; migration of terrorism law, 75 Target (superstore), 149 terrorism: as ‘armed propaganda’, 417; codification as international crime, 22–24; as customary international law crime, 36–37; definitions of, 6–7, 19–37, 68–84, 117; differing perceptions of, 383–384;‘dream threats’, 306; existence of, ontological issues as to, 304; generic offences (composite, 33, 35–36; simple, 33, 34–35); Internet see Internet; legal transplantation of definitions, 68–84;‘new’ terrorism, claims of threat from, 305–306; as ‘ordinary crime’, 34; political strategy against, 434–435; political strategy of, 433–434; political tactical responses to, 436–445; pre-1945, 20–22; pre-2001, 22–32; propaganda and, 416–417; risk of death from, 304; sectoral conventions, 24; threat analysis, 326; threat assessment level, 445–446; as ‘violence for political ends’, 433 terrorism financing see financial countermeasures terrorism law see counter-terrorism laws terrorist movements: affiliates and supporters see affiliates and supporters of terrorist organisations; alias organisations, 444; designation of, 305; identification and comparison, conceptual issues as to, 304–305 terrorist prisoners see penology 484

terrorist suspects, legal accountability and treatment of, 120–121 Thatcher, Margaret, 71 torture: aliens, 256–259; constitutionalism and prohibition of, 90; enhanced interrogation, 88 ‘Total War on Terror’ see ‘War on Terror’ transport systems: air travel see airport policing; aviation security; deaths from terrorism and other causes in context, 350–351; economic imperatives for protection, 364; importance of, 349; introductory themes, 13; passenger movements in selected cities (table), 349; security design challenges, 363–364; security measures (air, 356–359; rail, 354–356; road, 351–353; sea, 349–360); stop and search, 334–348; suicide terrorism, measures against, 360–363; as top terrorist target, 349–350, 363 Tugendhat, Sir Michael, 139 Tunisia, definition of terrorism, 77 Turkey, definition of terrorism, 31–32 UN Counter-Terrorism Committee (CTC): definition of terrorism, 32, 33; establishment of, 1, 239; migration of terrorism law, 73; survey of counter-terrorism laws, 463 UN Draft Comprehensive Terrorism Convention, 25–28 UN Financial Action Task Force (FATF): migration of terrorism law, 78; recommendations, 239, 247, 248; reports, 244, 247–248 UN General Assembly: definitions of terrorism, 24–25; engagement strategies, 435 UN Global Counter Terrorism Strategy 2006, 4 UN Human Rights Committee: definition of terrorism, 33 UN Human Rights Committee, definition of terrorism, 32 UN Human Rights Council, victim redress measures, 293–294 UN Office of Crimes and Drugs, 72 UN Office of Drugs and Crime, definition of terrorism, 33 UN Security Council: definitions of terrorism, 32–33; financial counter-measures, 87, 95, 237–250; migration of terrorism law, 69; responses to 9/11, 1–2; UNSCR 1267, 238; UNSCR 1368, 1; UNSCR 1373, 1, 32, 33, 69, 239, 300; UNSCR 1566, 32–33, 37 UN Special Tribunal for Lebanon, definition of terrorism, 36–37 United Arab Emirates, definition of terrorism, 77 United Kingdom see also Northern Ireland: administrative detention, 55, 89; aliens, 251, 256–259, 261–262, 268–269; anti-social behaviour orders (ASBOS), 270; arrest power, 171–173;‘Bellwin’ scheme, 288;‘best

Index

practices’ approach to counter-terrorism laws, 273–274; Bow Street Runners, 135–136; British Transport Police (BTP), 322, 337; Carlile report, 75, 76; civil litigation by victims, 292; Civil Nuclear Constabulary (CNC), 323; closed material procedures (CMPs), 268–269, 270, 271–272, 272–276; commercial property loss, compensation for, 286–287, 288; concrete barriers, 352–353; constitutional accountability, 100–101, 108–110, 111–113; constitutionalism and human rights, 89; control orders, 88, 106, 114; counter-terrorism laws, 86, 99, 124–125; counter-terrorism strategy (CONTEST), 3–4, 6, 12, 13, 317, 329, 381, 388, 434, 462; Countering International Terrorism, 3; criminal injuries compensation, 283–284, 290; criminal justice and terrorism, 171, 174–175; criminalisation of extremist expressions (direct, 438; indirect, 439–440); dataveillance, 155; deaths from terrorism, 283–284, 350; definition of terrorism, 27, 28, 31, 34, 70–71; Department for Communities and Local Government (DCLG), 411–412; designation of terrorist organisations, 305, 433; detention (criminal justice, 172–173; maximum period, 108, 111; military powers, 177–178; review of, 113–114); emergency financial assistance for local authorities, 288; emergency legislation, 211–212; engagement strategies, 435, 436–437; exceptional courts, 210; exclusion orders, 251; financial counter-measures, 243; ‘Five Eyes’ nations, 11, 266; GCHQ, 137, 138; Government Code and Cipher School (GCCS), 138; Government Security Zone (GSZ), 352;‘hearts and minds’ strategy, 13, 380, 436–437; homeland security (accountability, 328–329; definition of, 315, 317; displacement of terrorism threat, 330; effectiveness, 326–327; framework, 320–321’ policing, 322–323; private sector involvement, 332; securitisation, 331–332, 332); immigration control, 268–269; imprisonment of terrorists see penology; incapacitating chemical agents (ICA) weapons, 367, 370, 371–372, 377; Independent Reviewer of Terrorism Legislation (IRTL), 107, 108–109, 110, 112, 243, 300–301; insurance, commercial property, 286–287, 288; intelligence see intelligence; Intelligence and Security Committee (ISC), 140–141; internet control, 423–427, 429–430; interrogation (criminal justice, 173–174; military powers, 178); Investigatory Powers Tribunal (IPT), 138, 140; IRA attacks, 286–287, 288, 330, 337, 351–352; IRA campaign deaths, 38; Joint Committee on Human Rights (JCHR),

101–102, 106, 110, 111, 112, 113; judicial integrity, 118; judicial review, 95, 96, 274–275; Justice and Security Act 2013, 272; legal accountability, 120–126, 128–129; Lloyd inquiry, 71–72, 300–301; local authorities (community cohesion measures, 411–412; emergency financial assistance, 288); Lockerbie bombing 1988, 350, 357; London bombings of July 7 2005, 38–39, 102, 247, 284, 299, 350, 353, 360–361, 382, 387; London ‘Ring of Steel’, 351–352; Metropolitan Police Force (MPS), 337; MI5, 136, 137, 138, 429–430; MI6, 136, 138, 142; migration of terrorism law, 70–76; military powers, 175–178, 178; Ministry of Defence Police (MDP), 322–323; Muslim community, 155, 312, 382–383, 388–390 see also reflexive social impact perspective; securitisation; national security, 129–130; Newton Committee, 104–105, 109–110, 112, 113–114; Pakistan and, 387; penology see penology; policing (homeland security, 322–323; police powers, 123–124); precursor crimes, 195; Prevention of Terrorism Acts (PTA), 211–212; prevention strategies, 13, 381–383, 388–390, 395–396; prison regimes see penology; Privacy and Civil Liberties Board, 109; private sector agencies, 332; Project Channel, 383, 389, 436; prolonged detention without charge, 50; proscription of terrorist organisations, 441–442, 445; prosecutions, 61; protection for individuals, 290; public interest immunity (PII) doctrine, 271; rail transport security measures, 354–356; Regulation of Investigatory Powers Act 2000 (RIPA 2000), 137–139, 141, 142–143, 145; review bodies, 104–105, 106–107; Review of Counter-Terrorism and Security Powers, 106, 109, 114;‘Ring of Steel’ in London, 351–352; road transport security measures, 351–354; secrecy, 121; Secret Service Bureau, 136; Securing the Future of Afghanistan, 3; securitisation see securitisation; sentencing policy see penology; Spanish measures compared, 38–40, 50; Special Branch, 136; Special Immigration Appeals Commission (SIAC), 268–269; stop and search, 334–348; sunset clauses, 103; Terrorism Act 2000, 70–71, 99, 102, 106, 107, 171–173, 195, 243, 300, 326–327, 335–336, 337, 413, 423–425, 438, 439, 441–442; Terrorism Prevention and Investigation Measures (TPIMs), 145, 269, 381; terrorism threat assessment level, 445–446; torture, information obtained by use of, 122–123; Troika Insurance Company Limited, 286; USA PATRIOT Act, 70, 72; vehicle barriers, 352–353;Victims of Overseas Terrorism 485

Index

Compensation Scheme, 290–291 United States: 9/11 attacks see September 11 2001, attacks of; 9/11 Commission, 244; airline insurance, 286;Alien Terrorist Removal Court (ATRC), 278–279; Boston bombing 2013, 299; Central Intelligence Agency (CIA), 88; Centre for Strategic Counterterrorism Communications (CSCC), 430; civil litigation by victims, 292; Classified Information Procedures Act (CIPA), 277–278; closed material procedures (CMPs) (open justice, 276–278; sensitive intelligence, 276; special tribunals, 278–280); commercial property loss, compensation for, 287; commitment to democratic values, 207–208; constitutional accountability, 102–103, 108, 110, 112–114; constitutionalism and human rights, 89; counter-terrorism laws, 86, 99; criminal injuries compensation, 283; criminal justice and terrorism, 163–164, 166; criminalisation of extremist expressions, 437–438; dataveillance, 149–162; definition of terrorism, 31, 34–35; Department of Homeland Security (DHS), 315; Department of Justice (DOJ), 105–106; designation of terrorist organisations, 305; detention (criminal justice, 164–165; human rights and, 89; military powers, 167–168; use of, 55, 88); disaster relief, 288–289; due process, 207–208; engagement strategies, 434; enhanced interrogation, 88; extraordinary rendition, 88, 96, 219, 259; Federal Bureau of Investigation (FBI), 106, 328; financial counter-measures, 87, 243–244;‘Five Eyes’ nations, 11, 266; Fort Hood shooting 2009, 299; Fusion Centers, 150; Guantánamo, 57, 63, 88, 89, 93, 96, 124, 209, 214–215, 216, 219–220, 260, 261; homeland security( accountability, 328; definition of, 316, 317; Department of Homeland Security (DHS), 315; framework, 317–320; Hurricane Katrina and, 315; National Strategy for Homeland Security 2007, 316; policing, 323–324; private sector involvement, 332–333);‘human security’, concept of, 316; incapacitating chemical agents (ICA) weapons, 368, 372–373, 377; Inspectors General (IGs), 105–106, 112; insurance, victim redress (airline insurance, 286; commercial property, 287); International Terrorism Victims Compensation Program, 291; internet control, 420–423, 430; interrogation (criminal justice, 165–166; military powers, 168–169); judicial integrity, 118; judicial review, 93–96; legal accountability, 120, 124, 128; legislative protection of human rights, 92; losses from

486

attacks, 299; military commissions, 169–170, 206, 209, 211, 213, 279; military powers, 166, 170–171; National Security Agency (NSA), 87, 134; national security letters (NSLs), 102, 104, 105–106; National Strategy for Combating Terrorism 2006, 4; ‘Obama–Clinton Doctrine', 207;‘political question’ doctrine, 128; Presidential Military Orders, 4; privacy, protection of, 90, 155–162; private sector agencies, 332–333; prosecutions, 61, 63–64; Protecting Individual Privacy in the Struggle Against Terrorists, 152–153; review bodies, 105–106; risk of death from terrorism, 304; special military tribunals, 279; stop and search, 334–348; sunset clauses, 104; surveillance powers, 87; Total Information Awareness (TIA) programme, 150;Transportation Security Administration (TSA), 319, 323; US Coast Guard (USCG), 319, 320, 324; USA PATRIOT Act 2001, 2, 4, 70, 72, 87, 99, 102–103, 104, 151, 212, 420;‘war on terror’, 52, 53 victims of terrorism: civil litigation, 291–292; compensation (airline insurance, 285–286; commercial property loss, 286–288; criminal compensation schemes, 283–285; disaster relief, 288–289; individual property loss, 289; injury from terrorism abroad, 290–291; physical protection for individuals, 290; schemes, 285); International Criminal Court (ICC), 294–295; international criminal tribunals, 295; international-level redress, 293; introductory themes, 11; priority given to, 282, 295–296; regional measures, 294; special recognition, need for, 283–285; UN measures, 293–294 Vietnam, Counter-Terrorism Law 2013, 464 Walker, Clive, 72, 108, 334 war: conflict as counter-terrorism, 65–67; Counter-Terrorism and, 7, 52–67; criminal justice and, 61–65; definitions of terrorism, 26–28; detention and, 55–58; law of armed conflict (LOAC), description of, 54–55; targeting, 58–61; use of force, 58–61 ‘War on Terror’: promulgation, 2; rejection, 3; shift to Counter-Terrorism, 2–3, 463 websites see internet Yemen, hospital attack 2013, 311 Zia-ul-Haq, General, 386 Zimbabwe, definition of terrorism, 83