Week 7: Counter-terrorist law and policing

Did September 11th change the world - has there been a major change in the way governments respond to terrorism? The answer is "yes and no" - there was a big change in British governments' approaches to counter-terrorism at around that time, but not in September 2001.

The big change was what happened in May 1997, when Tony Blair was elected Prime Minister. Under Margaret Thatcher (Prime Minister from 1979 to 1990) there was a whole series of terrorist attacks in Britain, including the assassination of a number of senior political figures (and personal friends of the Prime Minister) and an attempted assassination of the PM herself. On one occasion while John Major was PM (1990-97), the IRA managed to bombard 10 Downing St while Cabinet was in session (nobody was hurt). What didn't happen between 1979 and 1997 was the introduction of any significant new counter-terrorist measures. When Thatcher became PM, the main counter-terrorist Act was the Prevention of Terrorism Act, passed (under Labour) in 1974. Thatcher's and Major's governments made some minor additions to the PTA, but they didn't feel the need to pass a counter-terrorist Act of their own, or to respond to each attack by bringing in a new law.

In 1997 Blair became Prime Minister. In 1998 the IRA signed a peace deal - the Good Friday Agreement - which effectively ended the main threat of terrorism at that time. Over the next ten years, Blair's government passed

• the Criminal Justice, Terrorism and Conspiracy Act 1998 (in response to the Omagh bombing carried out by a dissident Irish republican group)
• the Terrorism Act 2000
• the Anti-Terrorism, Crime and Security Act 2001 (ATCSA) (in response to 11/9/2001)
• the Terrorism Act 2005 (in response to ATCSA being found illegal)
• the Prevention of Terrorism Act 2006 (in response to 7/7/2005)
• the Counter-Terrorism Act 2008 (in response to the Glasgow Airport attack of 30/6/2007)

It's an impressive total: five reactive counter-terrorism acts - attempts, at best, to shut the stable door before the next horse bolted. All that, plus one big, catch-all counter-terrorism act, which was passed at a time when Britain didn't even appear to be under any significant terrorist threat.

Why is there such a big difference between the records of the Conservative governments of 1979-97 and the Labour governments of 1997-2010? There are a number of different ways of looking at it, but I think a key difference is that the Blair government used the precautionary principle when thinking about terrorism. The usual way to think about security risks is to quantify the severity of the danger and the probability of it happening, and multiply the two together. Something that only has a 1% chance of happening, but which will cause £10,000 worth of damage if it does, has a projected cost of 1% x £10,000 = £100; as such, it has exactly the same importance as something which will only cause £200 worth of damage but has a 50% chance of happening. The same calculations can be done using projected deaths, if you're feeling macabre.

Using the precautionary principle in this context means taking terrorism very seriously indeed - seriously enough, perhaps, to think in terms of emergency. And in an emergency drastic measures can be taken...

Awake, arise, you drowsy sleeper
Awake, arise, it’s almost day.
No time to lie, no time to slumber,
No time to dream your life away.

It was a gorgeous summer's morning
It was a gorgeous summer's day.
His cotton jacket was all he carried
As he walked out to face the day...

Changing gear a bit, here are a few questions about the shooting of Jean-Charles de Menezes in July 2005.

What if they'd got the right man?

The operation which led to the shooting of de Menezes was a horrific example of poor communication and lack of co-ordination. The initial failure to identify de Menezes was compounded by failures of leadership and organisation, culminating in the public execution of an innocent man. Public opinion was outraged, and counter-terrorist policing has never been quite so aggressive since. But what if the man the police shot in the head had been Hussain Osman - perhaps Hussain Osman on the run, unarmed, without any explosive, posing no danger to anyone? Would the police have faced any kind of prosecution, or even criticism?

Shouldn't somebody have said he wasn't the right man?

On the face of it, this seems to be a very straightforward failing: nobody (up to and including Cressida Dick) was willing to step up and say, "I don't think this is our man, everybody stand down". The trouble is that nobody knew that de Menezes wasn't the right man. Members of the surveillance team expressed doubts, but nobody was prepared to say that they were absolutely certain. Back in the operations room, Cressida Dick heard the reports that people were doubtful, but she wasn't prepared to convert that doubt into certainty either. The underlying problem was that the stakes were too high - see above re: 'precautionary principle'. If there was any realistic possibility that de Menezes was one of the bombers from the day before, and that he was planning another explosion, the police couldn't take the risk of letting him go. But they could only establish that he wasn't Hussain by stopping and questioning him - and they weren't about to do this, because this was a Kratos operation.

Or was it?

Apparently a Kratos codeword was never given, so strictly speaking this wasn't a Kratos operation. However, what happened when the firearms unit got to the tube station suggests very strongly that they, at least, were thinking in terms of a Kratos operation: in other words, intelligence tells you who the suspect is, and you neutralise the suspect without trying to make an arrest (since if you try and arrest a suicide bomber he's likely to blow himself up, taking you with him).

Whether Kratos was officially invoked or not, the de Menezes shooting demonstrates the awful contradiction at the heart of Kratos and similar policies. On one hand, suicide bombers can't realistically be arrested, so identifying somebody as a suicide bomber is essentially a death sentence (something which suicide bombers, by definition, can't really complain about). On the other, suicide bombers can do a great deal of harm, so even the smallest suspicion that somebody is a suicide bomber should make the police take action. But what can that action be? Arresting the suspect or even talking to him or her is a risk that the police can't afford to take, if they're dealing with an actual suicide bomber - but they can't always know for certain whether they are. In effect, Kratos means that the police are committed to using lethal force with imperfect information. Sooner or later it was bound to go horribly wrong. Perhaps we were lucky that it was 'sooner'.

There's one more unanswered question:

What was actually going on when de Menezes was shot?

We don't know what was going through the minds of the main participants, and it's quite hard to reconstruct. If "Ivor" thought that de Menezes was a suicide bomber, why did he sit so close to him - and why, in particular, did he drag him back onto the seat and hold him down? Wouldn't that be insanely dangerous? But if he didn't think de Menezes was a suicide bomber, why did he point him out to the armed officers (instead of, perhaps, shaking his head) - and why did he then, essentially, hold de Menezes down to be executed? The questions for the armed officers are similar: if they didn't think de Menezes was a suicide bomber, why did they shoot him repeatedly in the head? And if they did think he was a suicide bomber, why on earth did they get so close? A related question has to do with policy and training. Presumably what they did on the tube train wasn't something the firearms officers thought up themselves on the spur of the moment; presumably they were following procedure. Does police procedure for dealing with suicide bombers involve executing the suspect at point-blank range?

It was a gorgeous summer's morning
It was a gorgeous summer's day.
His cotton jacket was all he carried
As he walked out to face the day.

Jean-Charles de Menezes, 1/7/1978 - 22/7/2005

Week 5: Defining 'terrorism'

There's a big problem with the generally-accepted academic definitions of 'terrorism'. There's a consensus right across the literature: terrorism means indiscriminate attacks on civilians and 'symbolic' targets, carried out with the aim of inducing terror and changing political behaviour - by intimidating the general public and/or by influencing the government. Some terrorist groups certainly fit the bill some of the time: Al-Qaida is only the most obvious example.

But there wasn't very much that was 'terrorist' (according to the textbook definition) about the activities of the Red Brigades in Italy or the Provisional IRA in Ireland or the Palestine Liberation Organisation. Generally speaking, "armed struggle" groups don't bomb newspaper offices or murder police officers or assassinate their opponents because they want to terrorise the general public, or even because they want to intimidate journalists and police officers and politicians; they do it because they believe they're fighting a war and those targets represent their enemies.

If the textbook definition of 'terrorism' doesn't describe actual flesh-and-blood terrorists, what does it describe? In political discourse, the word 'terror' goes back to the French Revolution. The first 'Terror' was an eleven-month clampdown on political opponents, involving mass executions of enemies of the regime; between September 1793 and the following July, tens of thousands died on the guillotine. Subsequently the word 'terror' was widely used to describe indiscriminate killing by governments, particularly in the aftermath of an attempted revolution - the Hungarian "White Terror" of 1919-21 is only one example. When the development of military aircraft permitted it, "terror bombing" was carried out in World War II (Dresden, Hamburg), during the Spanish Civil War (Guernica) and in Britain's colonies (Mesopotamia, a.k.a. Iraq). There's no textbook definition for "terror bombing" - or "state terror" - but when you look at the textbook criteria for terrorism (indiscriminate attacks on civilians and 'symbolic' targets, carried out with the aim of inducing terror and changing political behaviour) both Dresden and Guernica seem to fit quite well.

In other words, governments are much more likely to use terror tactics than most people who are called 'terrorists'. State terror is a state crime (in war it's a war crime), and as such it can only happen on the basis of 'organisational deviance' - a phrase which here means 'a government collectively thinking that it's above the law'. Ironically, counter-terrorism - with its associated concepts of 'exceptional situations' and 'emergency measures' - makes a fertile breeding ground for organisational deviance in government.

Week 4: The War on Terror

The 'War on Terror' label was originally applied to US and British operations in Afghanistan (from 2001) and Iraq (from 2003). The counter-terrorist justification for the invasion of Iraq was always weak; all it really amounted to was an additional reason why Saddam Hussein should not be permitted to develop weapons of mass destruction, i.e. in case they became even more dangerous by falling into the hands of terrorists. When the US/British invasion had established that Saddam Hussein's arsenal of chemical and biological weapons had indeed been destroyed (confirming the UN inspection team's reports), it was argued instead that the invasion gave Britain the opportunity to defeat jihadists in Iraq instead of waiting for them to come to Britain. Whether the people of Iraq would think this was a good trade-off is another question. The invasion certainly hasn't brought a just and enduring peace to Iraq. According to UN figures from 2014, "7,818 civilians and 1,050 security forces died in violent attacks across Iraq in 2013 - making last year the bloodiest in Iraq since 2008".

The rationale for invading Afghanistan was a lot more straightforward: the Taliban were in power and they were harbouring Osama bin Laden, so the only way to get bin Laden was to overthrow the Taliban and set up a new, more legitimate government instead. There was no possibility of negotiating with the Taliban - say, for example, getting them to hand bin Laden over - because this would mean, well, negotiating with the Taliban. It's certainly true that leaving the Taliban in power would have had very bad results, and that the degree of democracy and political freedom the Afghan people currently enjoy is a big improvement on the situation in 2001. Whether the democratic and egalitarian reforms brought about by the occupying forces are permanent - whether the Taliban's exclusion from power is permanent, even - is another question. A decade-long war which has killed 3,000 US and allied troops and somewhere around 20,000 Afghan civilians may turn out not to have been the best way to flush out bin Laden or to encourage reform in the Afghan government.

It may also turn out to have been illegal. In international law, it is almost impossible to justify an aggressive war, particularly one which - like the invasion of Iraq - was explicitly embarked on to achieve political goals (the disarmament and/or removal from power of Saddam Hussein). There are provisions in international law for a legal invasion: the "Caroline" argument justifying anticipatory self-defence dates back to 1837. More recently, it has been argued that the UN Security Council should approve of invasions carried out to prevent large-scale loss of life, under the "responsibility to protect" doctrine (formulated in 2005) - although the decision in R2P cases rests with the UN Security Council.

It is not impossible to make arguments like these cover Afghanistan or Iraq, but it is very difficult. There were UN resolutions calling on Iraq to disarm; however, most people did not see those resolutions as justifying war, let alone a war carried out by a self-selected alliance of nations without the approval of the UN Security Council. The legality of the two wars - in terms of whether it was legal to declare war (ius ad bellum) - is highly suspect. And, as we know, the legality of the wars in terms of how they have been conducted (ius in bello) is also very questionable; at best, the wars have been scarred by numerous war crimes, from Abu Ghraib to the most recent drone strikes. At worst, the aggressor nations have been guilty of state crimes.

Although the development of the R2P doctrine might seem to make future interventions easier to initiate, in practice the international community is not likely to support anything on the scale of the Iraq war. The corruption and disorder of post-Taliban Afghanistan is bad enough; the chaos of Iraq, and the rise of Islamic State, attests that destroying a state - even a repressive state - is not the best way to build peace and tolerance. Meanwhile the experience of Libya - where a UN peacekeeping mission metamorphosed into a regime change operation, with disastrous consequences for the people of Libya - has amply demonstrated the dangers of armed interventions, even carried out with the best of intentions. The West's lack of appetite for any intervention in Syria - articulated most powerfully and effectively by Ed Miliband - attests to this new mood. The new battleground of the War on Terror is the mountainous Tribal Areas of Pakistan, where lurking jihadis are surgically picked off, one by one, by remotely-operated drones. Whether this is a lawful way to fight any kind of war is another question - although not one that is widely being asked.