notes on terrorism

When we looked at organised crime we saw how recent measures aimed at combatting organised crime involved the weakening of some traditional features of our criminal system as regards due process and civil liberties. Terrorism raises very similar issues.  When we looked at the case study of political intervention allegedly to stop criminal investigation into a major case of business crime we saw how activities are suspect to competing forms of labelling: 'crime' versus 'vital to national interests'. Terrorism raises similar issues here too: should we regard, and respond to, terrorism as primarily a form of criminal activity or as a form of warfare. As we shall see, this is not just a matter of words. Which label is chosen may profoundly influence the legitimacy of various methods of combating terrorism.

As Tony Blair, said on 5th August 2005, outlining new anti-terrorism measures in the wake of the July '7/7' bombings in London: "Let no one be in any doubt. The rules of the game are changing."

There are various definitions of terrorism but the following elements are fundamental

1. violence, often spectacular in its effects, aimed at civilians and property, with the goal of creating panic and fear.

2. the groups are not states. States may use such tactics. Some historians would condemn the mass fire bombing of the city of Dresden in Germany during the Second World War by the British as an act of 'terrorism' but this term would only be used polemically because the action was carried out by the airforce on government orders. Terrorists are defined as non-state groups.

3. the motives are political. By contrast with organised crime that simply wants to get rich, terrorism is aimed at political change. Some groups have clearly defined aims. The Provisional IRA in Northern Ireland wanted to end British rule. They had a degree of support among the Nationalist communities. Where the aims are specific, then terrorism may be substituted by politics if the leaders calculate that the aims can be better obtained in that way. Thus Gerry Adams is credited with leading the IRA away from armed struggle towards politics in Northern Ireland through the 'Good Friday Agreemeent'

4. the use of 'asymmetric warfare'. This refers to the fact that terrorists are innovators. They don't normally have access to the military arsenals of armies and thus attempt to use materials more readily to hand but often with devastating effect. The hijacking of civilian aircraft and flying them into the World Trade Center in New York was by far the most devastating act of 'asymmetric warfare' in modern times.

Many commentators see the emergence of groups like Al Qaeda as characteristic of a new style of terrorism. The characteristics of this type of terrorism are what were in Tony Blair's mind when he talked about the necessity to change the 'rules of the game'. Some of the new characteristics are held to be as follows:

1. new forms of spectacular violence.

There was great concern when a Japanese terrorist group spread gas in the Tokyo subway system. Some commentators thought this was the beginning of a new 'technological' terrorism. But the main development, as far as religious inspired terrorism is concerned, has been the emergence of the suicide bomber. The suicide bomber has, by definition, no concern with escape routes or covering their tracks and is not deterred by the likelihood of being detected afterwards. The London bombers of July 2005 left their credit cards in their luggage. This makes it all the more important to catch the conspiritors before they act. There is also concern that terrorists are becoming more sophisticated in their ability to use computers and global networks. the phrase 'cyber-terrorism' is sometimes used to describe the possibility of a disruption to global communications which could easily (so it is said) bring the international financial system to collapse.

2. new forms of organisation.

There is a development in terrorist organisation similar to that which we noted in the case of organised crime. Older groups, focused on particular local struggles, such as the IRA, were rather like old Mafia groups with a 'Godfather' at the head and a heirarchy of lieutentants and middle ranking decision makers. Although much was done to keep communications to a minimum and also minimise the number of members who knew how the organisation as a whole functioned, it was possible for the Security Services, Police and Military in Northern Ireland to send in undercover agents and recruit informants who could gain some knowlege about who were the significant members and what actions were planned.

Al Qaeda undoubtedly has, or had, a leadership core skillfully hiding themselves in the mountains of Afghanistan or thereabouts. As far as the West is currently (2009) concerned, the Al Qaeda leadership is located somewhere in the border regions between Afghanistan and Pakistan. It is associated with the militant Islamic Taliban movement which provides sanctuary and support. The current preoccupation of the West is that not only has Western intervention failed to stabilise Afghanistan but the Taliban movement is now a threat in Pakistan. The 'nightmare' scenario for the West is the establishment of some sort of pro-Taliban regime in Pakistan with sympathy and support for Al Qaeda... Pakistan has nuclear weapons.

But what is important about Al Qaeda is that it operates on a global scale. Actions attributed to the group have occurred in Kenya, Turkey, as well as the notorious bombing of Madrid and of course '9/11'. It is very difficult to track these actions because outside the core leadership mentioned above there is a shifting, flexible, loose network of 'followers' who may have various degrees of involvement. In this respect Al Qaeda is rather like the loose organised crime networks we mentioned last week. It is hard for the Security Services to send in undercover agents: where do they sent them? Where is the organisation? For example the young men from Yorkshire who planted the bombins in London last July: were they 'members' of Al Qaeda? Did they have 'contacts' with Al Qaeda people, and if so what sort of contacts? Maybe the bombers were simply 'inspired by' Al Qaeda as a name rather than being in any sense members of an organisation of that name. Maybe they acted entirely independently. At this time (May 2006) there are no clear answers to these questions.

3. New forms of Ideology.

Religious fundamentalism, in this case Islamic fundamentalism as an inspiration is harder to deal with than, for example, the rather pragmatic Nationalism of the IRA. it was reasonably clear under what circumstances the IRA would switch from terrorism to politics but this is much less clear in the case of groups that espouse a religious ideology.

As far as those branches of the State concerned with combatting terrorism (in the UK mainly police Special Branch, and the Security Services MI5 and MI6) are concerned, the features of the new terrorism throw up some formidible problems. On the one hand features like suicide bombing make it imperative to intercept terrorist actions when they are still at the stage of conspiracy. On the other hand, because of the loose network forms of organisation involved and the lack of communications between 'members' of the terrorist organisation, intelligence gathering is likely to be patchy and partial. The police and security services, as they see it, need to act decisively and swiftly but on the basis of patchy intelligence, certainly not sufficient to secure convictions in the courts. Finally the security services see a need to protect their fragile sources of what intelligence information they have managed to glean by not making public what the sources of this information were.

These factors create, in the minds of the police and security services, and the current British government, a pressure to adopt tactics which compromise in may ways on our traditions of due process and civil liberties as far as criminal justice is concerned. This issues were eloquently stated by the former Director General of MI5, Dame Eliza Manningham-Buller, in a speech in The Hague, Netherlands, 1 September 2005

So what influence has this type of thinking had on the criminal justice system?

There has been a tremendous amount of anti-terrorist legislation since 2000 much of it, as in the United States, a highly controversial subject of intense political debate. You do not need to know the details of all the legislation but here for the sake of convenience are the main Acts of Parliament in sequence. Aspects of each will be discussed below. 

- Terrorism Act 2000

- Anti-Terrorism Crime and Security Act 2001

- Prevention of Terrorism Act 2005

- Terrorism Act 2006

- Counter Terrorism Act 2008
 
It is useful to group the effects of legislation on civil liberties and due process under the following headings

Some critics are concerned that the legislation is widening the definition of terrorism too much. Because there are more potential targets for asymmetric warfare the temptation is to go for wider definitions. Thus the 1974 Prevention of Terrorism Act, passed in the midst of the IRA terrorism campaign, defined terrorism as "the use of violence for political ends" and "the use of violence for the purpose of putting the public, or any section of the public, in fear." (see Hewitt 2008: 19) In a similar way the United Nations in 2005 defined terrorism as action "intended to cause death or serious bodily harm to civilians or non-combatants with the purpose of intimidating a population or compelling a government or an international organization to do or abstain from doing any act."

But the UK Terrorism Act 2000defines terrorism as "use or threat of serious violence against persons or serious damage to property, designed to influence the government or intimidate the public... for the purpose of advancing a political, religious, or ideological cause." The inclusion of damage to property which may or may not be associated with violence against people, widens the concept of terrorism very considerably. Furthermore, serious violence is defined as including actions "seriously to interfere with or seriously to disrupt an electronic system." So, argue critics, this means that simple computer hacking now can be construed as a form of terrorism. Also the phrases "threat" and "ideological cause" seem to introduce a wider, more vague conception of terrorist activity.

Meanwhile the recent Terrorism Act 2006 outlaws the activity of 'glorification' of terrorism. This has been widely condemned as so vaguely worded as to constitute an attack on the right of free speech. The viability of this notion has yet to be tested in the courts

In our discussion of organised crime we saw that loose network organisation had demonstrated the difficulty of making charges of criminal conspiracy when people are very vaguely connected. There has been no legislation yet in the organised crime area but there has as regards terrorism

The Anti-Terrorism, Crime and Security Act 2001 makes it possible to charge an individual with having 'links' with members of 'an international terrorist group' Critics argue that the terms 'international terrorist group' and 'link' are too vague and subject to all sorts of vague definitions. What would be evidence of a link. By contrast the older law which prohibited 'membership' of a 'banned organisation' was relatively clear both as regards terrorism and organised crime

This theme has led, it is argued, to some really serious restrictions on liberty. Thus the  Anti-Terrorism Crime and Security Act 2001 provided for indefinite detention of non UK citizens considered by the Home Secretary as "suspected international terrorists" and a "national security risk" This inaugurated the notorious detention regime at Belmarsh prison in London. In 2004 House of Lords ruled that such detention was discriminatory (it applied to foreigners) and incompatible with the Human Rights Act.

The government responded with the Prevention of Terrorism Act 2005 which instituted control orders: restrictions can be imposed by the Home Secretary on anyone (thus it is non-discriminatory) suspected (that is to say that the Home Secretary only has to demonstrate 'reasonable suspicion') of 'terrorism-related' activity. There are two types of control orders. 'Derogating' control orders involving house arrest. They are called derogating because they directly violate human rights under the Human Rights Act and so the Home Secretary has to activate a special clause in the Human Rights Act which allows it to be derogated (= suspended) under conditions of 'national emergency'. Non-derogating control orders involved restrictions on liberty such as confiscation of passport, restrictions on the right to travel or to use any form of communications media (phone, email, etc.) necessity to report regularly to the police, electronic tagging, etc.

Control Orders have been characterised as 'political ASBOs' and you might like to consider the similarities with an ordinary ASBO in terms of the type of evidence required and the types of restrictions imposed. That apart, they have been seen as fundamental departures from due process and civil liberties. The ability of the Home Secretary (who is a politician not a Judge) to restrict your liberty on the basis of 'reasonable suspicion' without being convicted in the courts of any offence is seen as a serious inroad into civil rights and the right not to be punished without being convicted of an offence.

Deportation of foreign nationals is still seen as desirable. The Human Rights Act prohibits deportation to a country in which the individual is likely to be tortured. The government is attempting to get around this by signing various 'memoranda of understanding' with governments such as Algeria, Egypt, Jordan that none of their nationals deported back there from Britain will be subject to torture. Critics say these 'memoranda' are not worth the paper they are written on.

There has, since the 2005 Act introduced control orders, been much criticism, including by senior judges. While not able to overthrow the legislation as such, certain aspects have been ruled as violations of justice. Thus in 2007the highest court in the UK, the House of Lords (now renamed the Supreme Court) ruled that control orders which included 18 hour curfews were a breach of the European convention on human rights. Then, in  June 2009 the House of Lords ruled, in the case of three men subject to control orders that the refusal of the government to disclose even the 'gist' of the evidence against them denies their right to a fair trial under the Human Rights Act. In the ruling, Lord Philips, the senior Law Lord said: "A trial procedure can never be considered fair if a party to it is kept in ignorance of the case against him." The issue does, of course go right back to the fundamentals of due process discussed in the first session in this course. It relates to the discussion below on 'protecting the sources of information.'

In response to the 2009 House of Lords ruling, the home secretary at that time, Alan Johnson, said the judgment was extremely disappointing. "Protecting the public is my top priority, and this judgment makes that task harder," he said. "Nevertheless, the government will continue to take all steps we can to manage the threat presented by terrorism."

The new coalition government formed after the general election of May 2010 has announced its intention to repeal, or at least seriously modify the system of control orders. But at the time of writing (Febuary 2011) it is still not clear what will replace them

One of the features of control orders and the Belmarsh detention regime that preceded them was that the individual detainee was not able to see, yet alone challenge, the information which formed the basis of their detention. Secondly, in terms of appeal -- a very important part of the criminal justice process -- critics argue the government is marginalising the power of the judiciary to intervene and decide appeals.

Thus detention in Belmarsh under the Anti-Terrorism Crime and Security Act 2001 could be appealed by the detainee but not decision by a Judge in open court but to a Special Immigration Appeals Tribunal at which the Home Secretary could reveal his special evidence but the detainee would be represented only by a security cleared 'Special Advocate'. who could not communicate to the detainee what the special evidence was. Thus there was no effective defence process.

Likewise the recipients of control orders under the Prevention of Terrorism Act 2005 face a similar regime. A judge must decide on a derogating control order (House Arrest) but again the Home Secretary only has to convince the Judge of his 'reasonable suspicion'. The Judge cannot overturn the order. Nor can the detainee see or challenge the evidence. Likewise non-derogating control orders can be reviewed by Judges within a week of being imposed but here, as before, the Home Secretary can present his secret evidence which neither the defendant nor their lawyer can hear and the standard of proof is less than 'beyond reasonable doubt'. Finally there is no requirement to bring matters to a head after a certain time with a proper prosecution and trial. Therefore indefinite detention is possible on the basis of the Home Secretary's 'reasonable suspicion'

It might be responded that there are very few of these control orders issued so far At the end of 2005 there were only 9 orders still in place (others had been deported. But, critics argue, the important thing is that the precedent has been set. One suspicion that critics have is that the secrecy of the evidence means that although evidence obtained by torture is not admissable in a British court, such evidence, obtained from torture overseas, could be passed to the British authorities and used as the basis of a control order.

Critics of the legislation described above, and similar legislation elsewhere have to deal with the argument that these measures are 'reluctantly necessary' to deal with a new terrorist threat. Among the basic arguments deployed by critics are:

1. the threat is exaggerated. Actually the number of terrorist actions is lower in recent years. Is it worth compromising our civil liberties for something that happens infrequently? The declaration by George Bush (and Tony Blair) of a 'war on terror' after 9/11 was a wrong move. If terrorism was seen instead as a fundamentally criminal matter the rush to authoritarian measures would not have been so intense. If we introduce a draconian regime the terrorists have actually achieved one of their goals of bringing liberal society to its knees.

2. the effectiveness of the new measures is to be doubted. Reasonable suspicion can be a basis for police surveillance leading to eventual arrest and charge and it transpired that at least one of the London bombers of July 2005 was under surveillance but the police moved their attention elsewhere. This was an operational error and no amount of draconian legislation will avoid these sorts of wrong decisions.

3. a draconian regime of control orders and detentions, particularly if it falls on a particularly ethic or religious community can alienate that community and dry up the very sources of information that leads to the apprehension of actual terrorists. Just prior to the passing of the  Prevention of Terrorism Act 2005 George Churchill-Coleman, who was head of Scotland Yard's anti-terrorist squad during the IRA campaigns of the late 1980s and early 1990s, said, in an interview with the Guardian," I have a horrible feeling that we are sinking into a police state, and that's not good for anybody. We live in a democracy and we should police on those standards." (Guardian Friday January 28, 2005). He went on to directly criticise the measures which were embodied in the legislation: "I have serious worries and concerns about these ideas on both ethical and practical terms. You cannot lock people up just because someone says they are terrorists. Internment didn't work in Northern Ireland, it won't work now. You need evidence."

4. A major source of the inroads into due process and civil liberties is the alleged need to protect sources of information. But what is more important to protect: sources of information or our tradition of civil liberties. Actually, if telephone and other communication intercepts were admissible as evidence in court, which they are in every country except the UK and the Republic of Ireland - with no noticeable collapse of the effectiveness of the Security Services - then a lot more successful convictions in the courts could be brought.