Secret intelligence and an adversarial court system do not live easily togetherby David Omand / December 16, 2006 / Leave a comment
Published in December 2006 issue of Prospect Magazine
The latest report on counter-terrorism strategy, from the Joseph Rowntree Reform Trust and Democratic Audit, “The Rules of the Game,” rehearses much of the familiar liberal left discourse on the importance of human rights and the failings of the Bush/Blair axis. But the reader will also find compelling insights into where we risk going wrong in fighting terrorism—and I say that as a hardened British “securocrat” and former director of GCHQ.
The authors—Andrew Blick, Tufyal Choudhury and Stuart Weir—do not ignore the reality of the threat from jihadist terrorism, nor do they argue that the government’s strategy is misguided—indeed, they describe it as balanced and sensible. But they warn that it could fail through the unintended consequences of some of its short-term measures and by trimming too far to the prevailing populist wind. Tough talking, rushed legislation and hastily contrived security measures will, the report concludes, alienate precisely those groups from which the extremists hope to recruit. Means as well as ends matter in fighting terrorism.
Such criticisms are not new, and no one can seriously argue that the government is not aware of the importance of working with Britain’s Muslim communities to isolate the terrorists, even if it struggles at times to find the right tone and interlocutors (see John Ware, Prospect online, on the Muslim Council of Britain’s fall from favour). Nevertheless, the charge of inconsistency between the government’s strategy and some of the security measures it adopts deserves to be taken seriously, since it raises dilemmas for civil libertarians as well as for the security establishment.
Consider the following. There is a significant terrorist threat to the public from revolutionary jihadism, with a worrying number of British recruits. These terrorist cells are becoming more proficient and further attacks are likely. The first duty of government, the intelligence and security services and the police is to protect the public. That is best achieved through a combination of action to reduce the threat directly and to reduce vulnerability to the threat. The latter will only be achieved by preventing the radicalisation of another generation of Muslims, both in Britain and abroad. But that task is hard, and will not be achieved quickly. The former depends upon vigorous pursuit of the present terrorist networks to keep down the level of violence and allow longer term measures to work. Successful pursuit should lead to prosecutions through the courts and deportation for those who have abused the asylum system (obtaining assurances of fair treatment from receiving states where necessary).
Two important, mutually reinforcing propositions follow. The first, given welcome recognition in the report, is that in pursuing such a strategy, intelligence is the key to public safety. It will come from two directions: modern, professional intelligence collection using all the human and technical tradecraft of which we are capable; and information volunteered from within the Muslim community in rejection of the extremists and their ideology. To make possible the former, we need, as the report acknowledges, to accept the necessity of intrusive surveillance and investigation, under proper oversight. This will be at the expense of some aspects of privacy rights and runs counter to the current calls to curb the so-called surveillance society, but is preferable to suspending other human rights or tinkering with legal process. To make possible the flow of good information from the Muslim community means maintaining community confidence in the actions of the state, including the protection provided by the human rights framework. The hard-won lesson from the early days of the campaign in Northern Ireland is that sound intelligence reassures the community, by removing extremists and disrupting potential attacks without having to fall back on blunt discriminatory measures that alienate the support effective policing depends on.
The second proposition is that winning a terrorist campaign means denying the terrorists what they most seek. The current aim of the al Qaeda ideologues is not just to inspire highly destructive acts of revengeful violence against us. It is to try to create the impression throughout the Muslim world that a global struggle against oppression is under way, in which violent jihad against “the head of the snake” is a personal duty since, in al Qaeda’s eyes, the policies of the US and its allies towards the Muslim world are incurably discriminatory and at heart imperialist. Through constantly tempting us into over-reaction, terrorists want to expose the values of western societies as fragile and hypocritical.
Thus in pursuing its strategy, the government must constantly persuade the public to hold fast to that which we are defending from the terrorists—our liberties, freedoms and rights, including the rule of law. The security of the majority cannot be secured at the expense of the rights of a minority.
But if the threat is so serious and will be with us for years ahead, and if the logic of the strategy for reducing the risk is so clear, then why are governments tempted to go for headline-grabbing legislation or n-point plans making the long term aim harder to achieve? The report places some of the blame for these lurches on creeping authoritarianism. That is wide of the mark as a criticism of a government that incorporated European human rights law into our own legislation. Moreover, the quiet dismantling of the special Diplock courts in Northern Ireland shows that emergency measures need not last for ever. In my experience, what drives ministers and officials is genuine fear for public safety and, of course, concern that they will be found wanting by the public if they are not seen to be doing everything in their power. They are burned by media firestorms demanding public reassurance after each plot uncovered or adverse judgment in the courts.
Apparently inconsistent behaviour from the government may also be a consequence of three factors which form a unique British combination. First, a global intelligence capability (indispensable given that we are in the front line of Islamic terrorism) that would be severely hampered if all operational counter-terrorist intelligence had to be managed, recorded and transcribed according to our strict rules of evidence just in case it might one day be relevant to a prosecution. Second, an adversarial judicial system resting on equality between prosecution and defence when it comes to disclosure and testing of evidence, and with no equivalent to the French type of specialised counter-terrorist investigating magistrate, operating behind closed doors. Third, the incorporation of human rights law into our domestic legislation, which severely limits the special procedures that might otherwise be devised for handling sensitive evidence that cannot be disclosed to the defence or whose provenance cannot be fully explored in court. There is no lack of senior government ministers—understandably agitated by the flow of worrying intelligence they receive—to argue the need for ways to be found to enable more evidence to be brought to bear to secure prosecutions. The Rowntree report itself calls for intercepted communications to be admissible as evidence. But if it was so simple it would have already been done. Short of going down the French-style “special court” route, no scheme has been devised that does not undermine either the efficiency of the security services or key aspects of British legal tradition.
The other recommendations in the report are mostly very general. The authors stress that their call for a rethink of our “unquestioning stance” alongside the US is not knee-jerk anti-Americanism, but that is how it is liable to be read. What is really needed is to keep emphasising firmly and patiently to all levels of the US administration that Britain has its own preferred strategic approach to countering the threat from terrorism, and it is very different from the cruder manifestations of the war on terror.