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Rethinking the War on Terrorism

​THE UNITED KINGDOM responded to the terrorist attacks of September 11, 2001, in the United States and the July 7, 2005, London transit bombings by passing a host of laws to strengthen law enforcement and intelligence collection. The three most significant powers were precharge detention, random stop and search by police, and control orders. The first granted police the authority to detain terrorism suspects for longer periods of time without charge; the second gave police the power to randomly stop and search anyone without suspicion in defined geographical areas; and the third provided law  enforcement with the authority to place highly restrictive control orders on terrorism suspects.

Critics have objected to the impact of the expanded police powers on civil liberties and have questioned their efficacy in thwarting terror. Now, following a seven month review, the new Conservative and Liberal Democratic coalition government is scaling back these powers.

Security Management looks at what both the proponents and detractors have to say about these three core powers and how they are currently being reformed.

Precharge Detention
Under the precharge detention authority, police can detain someone without charging him or her. The authority existed before 9-11, but in 2003, it was enhanced to permit police to hold a terrorism suspect for up to 14 days. In 2006, Parliament rebuffed Prime Minister Tony Blair’s push for an extension to 90 days. Instead, Parliament extended it to 28 days, with the proviso that the government justify extending the power annually, or it would revert back to 14 days. Later, Prime Minister Gordon Brown made an unsuccessful attempt to have the time allowed extended to 42 days.

Acknowledging that the 28-day precharge detention was unnecessarily long, Home Secretary Theresa May, who is responsible for British homeland security, refused to provide a justification as required in January, and the extended authority expired. A day later, May released the government’s counterterrorism review, which included the administration’s recommendation that the 14-day period be made permanent.

Precharge detention, according to its defenders, is an essential counterterrorism tool, given the unique nature of the terrorist threat. Terrorism, they argue, unlike ordinary crime, does not give police the luxury of waiting for an act to be committed before making an arrest. Police may have to strike preemptively, arresting suspects before they’ve collected enough evidence to prosecute the subjects. With precharge detention, police have time to collect enough evidence to prosecute suspects while denying them the opportunity to leave the country or, worse, to carry out their attack.

Proponents also argue that the unique nature of jihadist plots requires precharge detention. Police must investigate multiple suspects and map their networks, collect evidence from electronic devices that is sometimes in different languages, and collaborate with counterparts in foreign countries that often have very different legal systems. These factors, they argue, make terrorism investigations harder to conduct quickly.

As proof that more than 14 days of precharge detention are necessary, police point to the 2006 liquid-bomb plot in which perpetrators sought to blow up 10 airliners over the Atlantic Ocean. When the London Metropolitan Police and British domestic intelligence agency MI5 broke up the plot, 24 suspects were arrested and mountains of evidence were collected. When Brown sought to have Parliament extend precharge detention to 42 days, he explained that “400 computers, 8,000 disks, and more than 25,000 exhibits” were seized by police during the investigation, dubbed Operation Overt, making for an incredibly time-consuming and complex investigation.

Conservative Freshman Member of Parliament (MP) Dominic Raab, however, says these arguments don’t stand up to scrutiny. “Looking at the cases since 2006, only one has gone beyond 14 days—an isolated case of 19-day detention. I am confident it is safe to reduce the excessive 28-day limit without impairing public protection or law enforcement,” he tells Security Management.

Other critics of 28-day precharge detention concur. They call the power abusive and out of step with other liberal democracies around the world. In the United States, for instance, police can only hold a suspect for 48 hours before a charge must be brought. Even in Russia, a country constantly plagued by terrorist attacks and described as “not free” by the civil rights group Freedom House, suspected terrorists can only be held for five days without charge.
The new coalition government’s review noted that the power to detain a suspect for longer than 14 days hadn’t been used since July 2007. In its recommendations, the Home Office concluded that 14 days of precharge detention was a sufficient amount of time for police to make a case against a terrorism suspect.

To placate proponents of a longer precharge detention limit, the review also recommended that “[e]mergency legislation extending the period of precharge detention to 28 days should be drafted and discussed with the Opposition, but not introduced, in order to deal with urgent situations when more than 14 days is considered necessary, for example in response to multiple coordinated attacks and/or during multiple large and simultaneous investigations.”

Following through on that recommendation in the recently introduced Freedom Bill, the coalition government has asked Parliament to limit the amount of time a terrorism suspect can be detained without charge to 14 days. At the same time, the Home Office drafted emergency legislation to temporarily extend the 14 day precharge detention limit to 28 days in extraordinary circumstances. In an emergency, the government could introduce the legislation and Parliament could decide whether the circumstances warranted 28 days again on a temporary basis.

Whatever happens, Peter Clarke, the former head of New Scotland Yard’s Anti-Terrorism Branch, doesn’t believe the government will cut precharge detention limits any further. “Fourteen days is still double where we started from in 2000,” he notes, referring to the Terrorism Act of 2000, which allowed police to hold a terrorism suspect for seven days maximum. “The fact that they have kept the provision that there could be a further extension subject to parliamentary scrutiny [means] they too recognize that there might be occasions when 14 days is insufficient,” says Clarke, currently a fellow at New York University’s Center on Law and Security.

Stop and Search
As with the precharge detention, the authority police are given to stop and search anyone in a specified public area without suspicion predates 9-11. It was enacted as Section 44 of the Terrorism Act of 2000 to fight Irish Republican Army terrorists in London, but the power took on new importance after al Qaeda’s attack on the United States.

Written in broad language, Section 44 gave police officers the right to randomly stop and search pedestrians and vehicles in an area deemed at risk of a terrorist attack by a police official and confirmed within 48 hours by the Home Secretary. For example, greater London has been a designated area since 2001, though this is not widely known even among Londoners.

Police say this authority gives them both a practical and psychological advantage over terrorists: the element of surprise. Opponents, however, say the authority is subject to misuse by police. They also call it ineffective, a claim that seems borne out by the fact that although police used stop-and-search powers 392,000 times between 2006 and 2010, its use has not resulted in a single terrorism conviction.

Police and proponents argue that convictions were never the power’s intent. “What it was actually about was deterring terrorists,” says Lord Toby Harris, the Home Secretary’s representative to the Metropolitan Police Authority and a former Labour politician.

Nevertheless, this perceived lack of results, combined with its widespread use, made this power the most unpopular counterterrorism measure, according to the review. Unlike precharge detention or control orders, it inconvenienced everyone.

British Muslims particularly disliked Section 44 because they felt police targeted them. However, the reverse was also true, others say. Out of a fear of appearing Islamophobic, officers made a point of stopping and searching people who did not fit the presumed profile.

Police “shouldn’t be reduced to using politically correct…exercises in order to justify who they stop,” says Daniel Hamilton, the campaign director for Big Brother Watch, a right-of-center British civil liberties organization. They should simply stop people they have suspicions about, and “not just random members of the public,” he says.

But the coup de grace for Section 44 came in early 2010 when the European Court of Human Rights ruled that it violated Europe’s Convention on Human Rights, specifically a person’s right to privacy. The ruling also declared that the law did not have “adequate legal safeguards against abuse.” The United Kingdom tried to appeal, but Europe’s human rights court refused to hear the government’s argument last summer.

In response, Home Secretary May said she would follow the court’s ruling while working on new legislation that would appease the court. In the meantime, she issued interim rules that allowed police to stop a pedestrian only when an officer had a reasonable suspicion that a person was a terrorist.

The review’s recommendations repeated this guidance, although the Home Office concluded that stop and search “without reasonable suspicion in exceptional circumstances is operationally justified.” The review came to this conclusion after police argued that a piece of intelligence could alert them to an imminent attack, yet carry no description of a suspect. In such a case, random stop and searches would be urgently needed.

The coalition government asked for Section 44’s repeal in the same bill that would limit precharge detention to 14 days. Even if it becomes law, police will still have authority to designate areas where it will be permissible to stop and search pedestrians and vehicles without having any direct reason to suspect the individuals being stopped of terrorism.

It will be harder, however, to justify designating an area as one where stop and search is appropriate. A senior police officer will only be able to grant constables that power in a specified area when he or she “reasonably suspects that an act of terrorism will take place.” Previously, senior police officers could allow constables to stop and search any person or vehicle without suspicion in a specified area if they considered “it expedient for the prevention of acts of terrorism.”

By setting the bar a bit higher, the Home Office believes the new policy “should result in a significant and permanent reduction in the volume of stop and searches compared to the use of Section 44 powers,” Harris says.

International advocacy group Human Rights Watch argues these reforms do not go far enough. Even though, under the bill, stop and search is “more narrowly drawn and with a higher threshold for authorization and use,” the group says it still gives police too much power that could be abused.

MP Raab tells Security Management that Section 44 powers “create more discontent” in the affected Muslim and Asian communities, and thus, they are “a poor tactic...from a counterterrorism point of view.”

Raab says, however, that the reform language in the Freedom Bill represents progress, because it reduces the arbitrary nature of the previous law. Raab expressed hope that stop-and-search reform would build better counterterrorism partnerships between the police and Britain’s Muslim population.

Control Orders
By far the most controversial counterterrorism power confronted by the Home Office review was control orders. Introduced as emergency legislation in 2005, control orders allow the Home Secretary to impose a range of restrictions on a person the government reasonably suspects is involved in terrorist activities.

Suspects placed under control orders have been electronically tagged and tracked, barred from using mobile phones and the Internet, placed under house confinement for 16 hours a day, forbidden from meeting with certain people, and forcefully relocated hundreds of miles away in a process critics call “internal exile.”

The British government imposes control orders on terrorism suspects in one of two instances. First, the suspect is a foreign national who cannot be deported to his home country for fear he will be tortured. Second, the evidence linking the suspect to terrorist activities was gained through secret intelligence that cannot be used in criminal court.

Control orders are seen by their proponents as a necessary evil and by their detractors as a violation of core principles of justice. British human rights group Liberty has called control orders “the most shameful legislative legacy of Britain’s domestic ‘War on Terror’” because they allow the government to restrict the freedom of terrorism suspects based on “secret intelligence and suspicion rather than charges, evidence, and proof.”

Contrary to criminal proceedings, suspects under control orders cannot see the evidence amassed against them or directly challenge constraints on their freedom. Instead, a special advocate cleared to see intelligence material argues their cases, while those subject to the orders only learn the “gist” of the cases against them.

Critics also point out that control orders don’t work, noting that seven of 48 suspected terrorists placed under control orders have disappeared. Assuming that the government wants to take a tough approach to fighting terrorism, “control orders simply are not an effective way of doing that,” says Big Brother Watch’s Hamilton.

This type of police authority also has critics in Parliament. Currently only eight people are subject to control orders. MP Raab tells Security Management that the miniscule number of suspects under control orders doesn’t compute with what MI5 tells the British public about the domestic threat. “I fail to see the security relevance of eight control orders if we have a sea of 4,000 terror suspects,” he says.

Criminal prosecution is the only way to combat terrorism and uphold Britain’s values, says Raab. He and others on the right argue that true terrorists deserve a prison cell, not something approximating house arrest. “The justice system is a weapon, not an impediment to fighting terror,” according to Raab, who looks to the United States as a model for disrupting and deterring terrorist attacks through prosecution.

Jaime Bartlett, head of the Violence and Extremism Program at the liberal think tank Demos, however, notes that critics who cite the statistic about suspects under control orders absconding omit context. None have disappeared since 2007, he says, because the police have addressed the program’s early problems.

The government review ultimately struck a compromise, calling for control orders to be replaced with a new tool, Terrorism Prevention and Investigation Measures (T-PIMs). According to the Home Office, T-PIMs represent “a system which will protect the public but will be less intrusive, [and] more clearly and tightly defined.

T-PIMs will, however, retain many of the old program’s components. Forced relocations will end, curfews will be eased, and communication restrictions will be relaxed, but terrorism suspects will still have to wear electronic tags, report to police regularly, and stay home at night.

The Home Secretary also promised police more resources for surveillance to monitor suspects and to aid them in evidence collection. This move was the Home Office’s acknowledgment that control orders had been used as an alternative to prosecution, thus creating a system that may have punished some people for crimes they did not commit.

In one marked change, however, the Home Secretary will have to obtain approval from the High Court before imposing T-PIMs unless it’s an emergency situation. Additionally, individual orders will only last a maximum of two years. Then, the restrictions will expire unless the Home Secretary can provide new evidence to renew the restrictions.

These reforms don’t go far enough for civil libertarians, who derisively call TPIMs “control orders lite.” “[They] are still the same authoritarian policy that the government tweaks along the edge with a new name,” Hamilton says.

But MP Jullian Huppert, a Liberal Democrat, says that the review’s recommendations represent progress. “There are some very good things,” he says, noting that terrorism suspects can no longer be forcibly relocated to another part of the country and can go about their lives relatively unmolested. Nevertheless, he said, T-PIMs need to lead to prosecution: “The ideal outcome is that somebody who is accused of terrorist activity is prosecuted, hopefully convicted, and jailed.”

Others view the coalition compromise as a “Goldilocks” solution—not too draconian, not too liberal, but just right. “They recognize that if you’re going to lessen the actual restraints that are placed on people, you’ve got to have an alternative mechanism to make sure they don’t do anything to harm the public,” Clarke says. “And so they boosted the amount of resources available for surveillance.”

Lord Harris said T-PIMs are “probably a reasonable [and] workable alternative” to control orders, although he said that the devil will be in the details once the new power is instituted.

Only time will tell what those details are. Unlike the counterterrorism reforms, the specifics on T-PIMs are not included in the Freedom Bill. The government will craft a separate piece of legislation to replace control orders with T-PIMs.

Meanwhile, to ensure that terrorism suspects now under control orders are not simply cut loose, the Home Office has extended the existing authority until the end of the year while the T-PIMs legislation is prepared and debated by Parliament. The Home Office will draft but not introduce another piece of emergency legislation. If “exceptional circumstances” arise, Parliament will have the option of reinstating the more draconian aspects of control orders.

Right Balance 
The ultimate goal is to strike the right balance between liberty and security, not an easy task. Bartlett counts himself as a supporter of the Home Office’s counterterrorism reforms. “It’s more oversight, more accountability, and with some pretty useful clauses in there [so] that if there’s another terrorist attack, that we can revert back to slightly more draconian measures but always with parliamentary oversight,” he says.

Lord Harris, a defender of Labour’s counterterrorism powers, recognizes that such strong government policies must be “reviewed from time to time.” Overall, he believes the Home Office’s recommendations were “not unreasonable.”

Even the former head of antiterrorism for New Scotland Yard believes the review accomplished its goal of rolling back some intrusive and coercive state powers without jeopardizing public security. “I think it’s a very carefully struck balance,” Clarke says. “Overall, it’s just about right.”

Perhaps the greatest sign that the Home Office had achieved its goal came from Lord Ken MacDonald, a liberal lawyer and a former director of public prosecutions for England and Wales during Prime Minister Blair’s term of office. Charged by Home Secretary May with providing independent oversight of the review, MacDonald assessed the recommendations.

“The reduction in precharge detention to 14 days, the repeal of Section 44…and the outright removal of those aspects of control orders that most resemble house arrest are all to be regarded as reforms of real significance,” he concluded. “They point to an unmistakable rebalancing of public policy in favor of liberty.”