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Counter-Terrorism - International Law and Practice edited by Salinas de Frías, Ana María; Samuel, Katja; White, Nigel D (1st January 2012)

Part II Multidisciplinary Perspectives On The Rule Of Law In Action, 13 Counter-Terrorism Policing and the Rule of Law

Keith Weston

From: Counter-Terrorism: International Law and Practice

Edited By: Ana María Salinas de Frías, Katja Samuel, Nigel D White

Rule of law — Terrorism

(p. 323) 13  Counter-Terrorism Policing and the Rule of Law

The Best of Friends

1.  Introduction

Who are the police? Are they citizens in uniform, are they an arm of the government, are they your best friend, or your worst enemy? The answers to these questions depend on who you are, and where you are from. The police are a reflection of the society they police. The purpose of this chapter is to provide an insight into how the police ‘do’ counter-terrorism. Because of the scale and nature of the challenge, this chapter will concentrate on policing counter-terrorism from the perspective of a liberal democracy. This will be predominantly from the viewpoint of the British policing model, but with references to policing in other jurisdictions to provide a comparative analysis.

In particular, the relationship between the police and intelligence agencies will be considered; reference will be made to the implementation of specific counter-terrorism legislation; and recurring perceptions that adherence to the concept of the rule of law undermines counter-terrorism will be examined.

2.  Context

From a British law enforcement perspective, there are three key conclusions which may be drawn from the development of the threat of international terrorism since the 1990s. The first is a new dimension of potential harm to the public. The agenda is mass murder. The second is that this dimension is enduring. Endeavours to contain the worst dangers will require many years of effort. The third is that a new balanced (p. 324) normality is achievable, but it will require a major commitment of leadership and sustained hard work.1

Police in Great Britain and London in particular have been responding to, investigating, and preventing terrorism since police forces were introduced in the early 1800s. As the nature of terrorism changed, and the methodology of the terrorist developed, counter-terrorism policing evolved also. However, the mission remained the same, the protection of the public.

3.  The Development of the Role of the Police in Countering Terrorism

In the 1970s, terrorist activity by the anarchist group ‘the Angry Brigade’ resulted in the formation of a specialist police team in London to combat this threat. A small team of Metropolitan Police Special Branch (MPSB) officers and detectives with experience of investigating serious crimes were brought together to form the ‘Bomb Squad’. Then, in 1976 this team was renamed the Anti-Terrorist Branch2 and worked closely with MPSB to investigate all politically motivated crimes. Eventually, MPSB and the Anti-Terrorist Branch were combined in 2006 to become the Counter Terrorism Command.

Initially, terrorism was investigated by specialist teams of officers from the Metropolitan Police, travelling from London to assist their colleagues at the scenes of terrorist crimes. They investigated what Peter Clarke, a former Metropolitan Police Deputy Assistant Commissioner and National Coordinator of Terrorist Investigations, described as:

… essentially a domestic campaign using conventional weaponry, carried out by terrorists in tightly knit networks who were desperate to avoid capture and certainly had no wish to die. The use of warnings restricted the scale of the carnage, dreadful though it was. The warnings were cynical and often misleading but, by restricting casualties, were a factor in enabling the political process to move forward, however haltingly.3

However, the Counter Terrorism Command in London is now supported by four regional counter-terrorism units and four regional intelligence units to increase police capabilities across the country. This reflects the changing nature of terrorism, and resultant counter-terrorism responses, post 9/11:

[Terrorism] is global in origin, reach and ambition. The networks are large, fluid, mobile and incredibly resilient. We have seen how Al Qaeda has been able to survive a prolonged multi-national assault on its structures, personnel and logistics … Suicide (p. 325) has been a frequent feature of attack planning and delivery—a stark contrast with the Irish determination to avoid capture. There is no evidence of looking to restrict casualties. There are no warnings given and the evidence suggests that on the contrary, the intention is frequently to kill as many people as possible.4

The overarching role of the Counter Terrorism Command is to provide a full operational capability with teams of officers immediately available to respond to any type of incident or investigation. Its primary responsibilities include:

  1. (1)  To bring to justice those engaged in terrorist, domestic extremist and related offences.

  2. (2)  To provide a proactive and reactive response to terrorist, domestic extremist, and related offences, including the prevention and disruption of terrorist activity.

  3. (3)  To support the National Coordinator of Terrorist Investigations outside London.

  4. (4)  To gather and exploit intelligence on terrorism and extremism in London.

  5. (5)  To assess, analyse, and develop intelligence to drive operational activity.

  6. (6)  To engage in partnership with London’s communities in order to understand their concerns and to provide reassurance and support where needed.

  7. (7)  To provide specialist security advice and services internally and externally.

  8. (8)  To provide an explosive ordnance disposal and Chemical, Biological, Radiological and Nuclear (CBRN) capability in London.

  9. (9)  To assist the British Security Service and Secret Intelligence Service in fulfilling their statutory roles.

  10. (10)  To be the police single point of contact for international partners in counter-terrorism matters.

  11. (11)  To assist in the protection of British interests overseas and the investigation of attacks against those interests.5

The police response to terrorism in the UK has been pragmatic. Historically, the police concept was one of patrol by uniformed constables to which all other specialisms were ancillary,6 from which the creation of specialist counter-terrorism police units was an evolutionary process. In particular, the lessons underpinning this UK model reflect the long term investment in the development of specialist counter-terrorism police officers, together with their geographic distribution across the country rather than being concentrated within the capital.

(p. 326) 4.  Does the Security Imperative Defeat the Rule of Law?

One of the most dangerous temptations for a government facing violent threats is to respond in heavy-handed ways that violate the rights of innocent citizens. Terrorism is a criminal act and should be treated accordingly–and that means applying the law fairly and consistently. We have found, through experience around the world, that the best way to defeat terrorist threats is to increase law enforcement capabilities while at the same time promoting democracy and human rights.7

When Madeleine Albright spoke these words in 2000, she could not have foreseen how the US response to the events of 9/11 would have impacted on the concept of the rule of law. As Professor Conor Gearty has commented, ‘the supersession of the criminal model based on justice and due process by a security model that is based on fear and suspicion [is] the single greatest disastrous legacy of the war on terror from a human rights point of view’.8

In a liberal democracy the rule of law underpins fundamental principles of human rights, which include the right to liberty, justice, and freedoms of opinion, speech, and religion. It is about values, standards, and beliefs. Why, therefore, might conflicts, perceived or actual, between security and the rule of law arise in the context of counter-terrorist policing, especially as ultimately both concepts should be concerned with the same subject of public safety?

For the purpose of this chapter, the notion of the rule of law referred to is that described by Lord Bingham: ‘All persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts.’9 Even he accepts that this definition is flawed and that there will be exceptions, but he emphasizes that, ‘any departure from the rule I have stated calls for close consideration and clear justification’. Lord Bingham goes on to observe that:

… the hallmarks of a regime which flouts the rule of law are, alas, all too familiar: the midnight knock on the door, the sudden disappearance, the show trial, the subjection of prisoners to genetic experiment, the confession extracted by torture, the gulag and the concentration camp, the gas chamber, the practice of genocide or ethnic cleansing, the waging of aggressive war.10

(p. 327) One of the problems that may have contributed especially to any perceived conflicts between security and the rule of law is the nature of the modern democratic state whereby:

Authority is concentrated at the top, and is directed downwards through hierarchies in the form of laws, directives and commands. The officials who run the state are usually tightly woven into the circles of the elite, concentrated in the capital. At the heart of the state the officials responsible for security operate in a culture that is instinctively hostile to openness, public activism and discussion.11

Mulgan considered that a potential solution to such institutional and hierarchical barriers was the development of trust rather than suspicion, and through dialogue rather than secretiveness. He believed that ‘more visibility, openness and mutual surveillance could increase the security of both sides. The more these measures are put into practice the more they would become second nature; learning to negotiate; learning to understand the other’s point of view; learning to trust; or understanding that that being open does not mean laying yourself open to attack.’12

The principal lesson that may be drawn from this is that security imperatives must not be allowed to defeat or undermine the rule of law. There is a danger that if the state overreacts to threats from terrorism by imposing draconian measures on its citizens, it will lose its legitimacy to govern and may increase support for the very terrorists the state is seeking to counter. Rather, states should aspire for the counter-terrorism model set out by Madeleine Albright referred to above, mindful of the perils if they fail to do so which are so clearly identified by Lord Bingham.

5.  Intelligence Agencies and the Police—A Critical Partnership

5.1.  Establishing the Strategic Partnership

In the UK there have been some important developments in the forging of relationships that have led to the breaking down of barriers and creation of a culture of trust within and between the security and intelligence agencies and the police. This is particularly noticeable in the relationship between the police service and the Security Service. Clarke has noted:

No longer can the police service feed off the crumbs falling from the end of the intelligence table. In the past a case would sometimes come to the police after there had been a great deal of investigation by the intelligence agencies. Sometimes we would have little insight into what lay behind the case, and this was often deliberately the case—to protect the evidential investigators from knowledge that could lead them (p. 328) into difficulties when giving their evidence in court. This is no longer acceptable for very sound legal reasons, but it is also not acceptable in terms of public safety. We can no longer wait until the terrorist is at or near the point of attack before intervening. It might give us the strongest evidence to capture the terrorist with the gun or the bomb, but the risk to the public, in the age of suicide bombers and no notice attacks, is simply too great…. The police and Security Service now work together in every case from a much earlier stage than would ever have happened in the past. The intelligence that is gathered and assessed by the Security Service is in large part the lifeblood of counter-terrorism in the UK. Exploiting it is a shared endeavour. Setting joint objectives and agreeing investigative strategies is not exceptional. It has become the daily routine.13

The development of the collaborative model as described by Clarke was not an easy journey, especially because in the relatively recent past the relationship between the police and the Security Service had not been one of openness, trust, and sharing. Intelligence would be developed without consideration of the rules of evidence. Informants, ‘agents’, or other intelligence sources were used in roles that placed them too close to criminal activity, or, if arrests were to be made, the identity of the source would have to be revealed, thus compromising an individual or a sensitive technique. This resulted in some terrorist operations being deliberately disrupted to protect the identity or methodology of a source of intelligence. For many in the police service, particularly in MPSB, to see terrorists who had been under surveillance walk away without being arrested and convicted was an anathema. Additionally, some police officers held the Security Service responsible for failing to collect intelligence in a manner that could be presented as evidence in a court of law, as its use would compromise a source, technique, or methodology.

The current relationship dates back to 1992, when the Security Service was given the lead responsibility in Great Britain for the collection, assessment, and dissemination of intelligence relating to Irish Republican terrorism, and is now based on openness, sharing, and trust. However, the transition has not been an easy one. For example, at the time there were many in MPSB who resented losing the lead responsibility which, since 1883, they had sustained and protected, to the Security Service which was perceived to have little or no expertise in counter-terrorism. Furthermore, the Security Service was considered by many MPSB officers to be comprised of ‘Cold War Warriors’ who were desperately seeking a new role following the collapse of the Soviet Union and the resultant perceived reduction in the threat from both espionage and subversion.

Conversely, some within the Security Service saw no role for MPSB in the new working arrangements and desired to work directly with the Metropolitan Police Anti-Terrorist Branch whom they believed they could direct to arrest terrorists ‘red handed’ at the culmination of an intelligence operation. At either end of this spectrum, relationships were very frosty. Such sentiments are reflected within (p. 329) Christopher Andrews’ authorized history of MI5, Defence of the Realm, which records that in 1992 Director T (Domestic and Irish Counter-Terrorism Branch), Stephen Lander, described the change in responsibility as ‘a wounding experience for some B (Special Branch Irish) Squad staff and they are naturally disappointed at the outcome’.14

Nevertheless, individuals in the police and the Security Service worked hard to form a strong, cooperative, and mutually supportive partnership, not least to overcome such historic rivalry and tensions between them. To this end, a range of approaches was adopted, which included the secondment of experienced junior and middle ranking MPSB officers to work alongside Security Service officers in both analytical and operational roles, as ‘desk officers’ or ‘agent handlers’. In addition, a Detective Superintendent from MPSB was attached to the Senior Management Group of the Security Service to liaise on policy and operational issues and provide guidance on police related matters when necessary.

Similarly, a small team of Security Service personnel worked out of New Scotland Yard. They examined the vast amount of operational files on Irish Republican Terrorism contained in the MPSB Registry. Where appropriate they extracted intelligence records on Irish Republican terrorism to ensure that the Security Service had the most comprehensive, complete, and up to date database that was available. Whilst located within New Scotland Yard, this team of Security Service staff did not work alongside MPSB officers on investigations as all investigative work was conducted out of the Security Service Headquarters.

Two key individuals in this new partnership were Sir David Veness, who retired in 2005 as Assistant Commissioner Specialist Operations, and Dame Eliza Manningham-Buller, a Security Service officer who headed up the Security Service T2 Branch (Irish Republican Investigations) and eventually became Director General of the Security Service. The strong strategic working relationship based on trust and mutual respect ensured that any petty squabbles or ‘turf wars’ were very quickly dealt with, defused, and were not allowed to interfere with, or impede, operational activity. This became of paramount importance following the terrorist attacks in the US in 2001, when it was vital for public safety that the police and Security Service worked as one team, with one mission against a common enemy. As Manningham-Buller described this relationship in 2007: ‘We have key partners, the police being the main ones, and I’d like to applaud those police officers working alongside us on this huge challenge, those who collect intelligence beside us, help (p. 330) convert it into evidence for courts and face the dangers of arresting individuals who have no concern for their own lives or the lives of others.’15

It is evident from this recent UK experience that the establishment of an effective relationship between national intelligence agencies and the police is not a simple process, and will often not be an easy association. In particular, a primary underpinning source of potential tension remains the fundamental differences in their respective primary missions: that of an intelligence agency is to gather, assess, and disseminate intelligence based on a defined ‘customer need’; whilst that of the police is to enforce the law of the land as prescribed by the government of the day. Nevertheless, as this model also clearly demonstrates, the existence and effectiveness of such strategic partnerships, which must be the product of mutual respect and understanding of their mutual complementary roles and resultant trust, are critical to effective counter-terrorist responses. However, such effectiveness is not solely dependent upon the building of relevant partnership; rather it must be built upon solid foundations of adherence to the rule of law and its accompanying principles.

5.2.  The Relationship between Rule of Law Principles, Law Enforcement, and Intelligence Agencies

5.2.1.  Adherence to the Rule of Law and Operational Effectiveness

A recurring theme in recent counter-terrorist discourse concerns the relationship that exists between rule of law principles and the work of both law enforcement and intelligence agencies, in particular related tensions. The current author is strongly of the view that this relationship is neither contradictory, nor is it separable. Not only is the protection of individual human rights believed to be paramount and non-negotiable, but their compliance and respect lie at the heart of the legality, legitimacy, proportionality, and eventual effectiveness of counter-terrorist policing.

The essential link between perceptions of legitimacy and adherence to the rule of law, and the ability to ensure public safety against terrorist threats, are illustrated by a significant challenge that the police and Security Services have had and will, in all probability, continue to have to overcome, namely allegations of ‘exaggerating the threat’, which entered public discourse following public concern regarding governmental justifications for invading Iraq. As former Cabinet Minister Robin Cook, who resigned over the war, subsequently said: ‘the unavoidable conclusion of the content of the Butler report [is] that we committed British troops to action on the basis of false intelligence, overheated analysis and unreliable sources’.16

(p. 331) In terms of the potential impact of such sentiments upon domestic counter-terrorist operations, this is illustrated by the experiences of Peter Clarke who, as National Coordinator for Terrorist Investigations from 2002, oversaw an investigation into a terrorist conspiracy that proved to be the forerunner of future international terrorist attacks in the UK:

… the trail took us to Thetford, where in the unlikely surroundings of rural Norfolk we found the first real indication since 9/11 of operational terrorist activity here in the UK—recipes for Ricin and other poisons. That led us eventually to Wood Green and the chemicals, the Finsbury Park Mosque, and of course the terrible murder of Detective Constable Stephen Oake in Manchester in January 2003. That case taught us many things, not least about our ability to operate across borders, both within the UK and overseas. It showed us the difficulties that international terrorist conspiracies pose for our domestic judicial system. For the police, it also marked the beginning of our understanding of the impact that the emerging distrust of intelligence in early 2003 would have on our relationship with the media and therefore the public. This was the first time, in my experience, that the police service had been accused of exaggerating the threat posed by terrorists in order, it was alleged, to help the government justify its foreign policy.17

Such allegations of ‘exaggerating the threat’ are unwarranted, unjustified, and only assist in increasing the perception of fear. Senior police officers are required to comply with the ‘sub judice’ rule and are unable to explain the true nature of the threat posed by those who have been arrested. It is only at the subsequent trial that the full facts emerge, which can be up to two years after the initial arrests. Strict adherence to the rule of law, and in particular due process, will in the longer term reinforce public confidence in the intelligence agencies, the police, the prosecution agencies, and the judiciary. Any erosion of trust between these institutions and the public, particularly in the area of counter-terrorism, will have a severe detrimental impact on the rule of law.

5.2.2.  Rule of Law Principles in Operation

Intelligence agencies and law enforcement agencies that have a firm foundation on the rule of law are much less likely to contravene international conventions or domestic legislation designed to protect and preserve values and standards, not least those of human rights.

A key example of such rule of law principles in action concerns their impact upon covert operations, including surveillance, property interference, or interception of communications, all of which must be the subject of appropriate authorization as prescribed by the law. Similarly, the recruitment of human intelligence sources must be carried out in accordance with clearly defined standard operating procedures. Unethical and illegal behaviour, such as torture, or cruel, inhuman, or degrading (p. 332) treatment, will always constitute unacceptable behaviour for any intelligence officials or police officers, such that those that employ such practices should always be the subject of criminal prosecution. This is essential too if a slippery slope of unacceptable accountability gaps in terms of governmental impunity is to be reduced, or better still, avoided altogether.

Similarly, the activities of secret intelligence agencies must be overseen by an independent, parliamentary level, oversight body to ensure that any complaints regarding the activities of intelligence officers are the subject of unhindered scrutiny.18 This will further assist in strengthening public confidence that fundamental values, legal, and ethical standards are not being abused.

It is also important to recognize and accept the inherent limitations of intelligence gathering and covert work, namely that whilst it may prevent particular terrorist acts from occurring, its nature is such that its outputs may not always be admissible in subsequent criminal proceedings due to legal parameters arising from the rule of law. As Manningham-Buller commented in a speech in 2006:

Wherever possible we seek to collect evidence sufficient to secure prosecutions, but it is not always possible to do so: admissible evidence is not always available and the courts, rightly, look for a high standard of certainty. Often to protect public safety the police need to disrupt plots on the basis of intelligence but before evidence sufficient to bring criminal charges has been collected.19

She also acknowledged that intelligence can be ‘patchy, fragmentary and uncertain, to be interpreted and assessed. All too often it falls short of evidence to support criminal charges to bring an individual before the courts, the best solution if achievable. Moreover, we need to protect fragile sources of intelligence, including human sources.’20

Once again, such constraints, both operational and attributable to the rule of law, may be the source of significant tension between, and even impact negatively upon, the effectiveness of partnerships between intelligence agencies and relevant counter-terrorism police organizations. In order to mitigate these, and operate within the rule of law, strong leadership from each of the agencies, coupled with a willingness to work closely together, is essential, once again based on mutual trust and understanding of the other organization’s needs as previously described in relation to the UK’s model.

(p. 333) Key sources of tension remain different central objectives, with a primary requirement for an intelligence agency to protect its sources and methodology in order to remain efficient and effective, whereas the police need to collect sufficient evidence to secure a prosecution. Undoubtedly, the latter’s requirements can pose particular challenges to the work of intelligence agencies in their intelligence gathering activities, not least in terms of not compromising key sources or techniques. Nevertheless, there can be resultant benefits also in terms of adherence to rule of law principles, not least through the imposition of increased operational safeguards to avoid human rights violations, where increased pressure and expectation exist for the production of potentially admissible evidence in court.

The recent experience in the UK is that the equilibrium between the need for security and working within the ‘rule of law’ is very finely balanced. There is an acceptance that, in countering terrorism, the police and Security Service must work together in a very close partnership. Neither partner can tell the other what they must do, rather decisions must be the product of consensus. Whilst at times there may be operational differences of opinion as to which is the better option, the balance must always be determined by the exigencies of public safety in a rule of law compliant manner.

5.3.  Operational Independence and Effective Accountability

One key aspect of ensuring increased rule of law compliance in counter-terrorist policing is the establishment of effective accountability mechanisms. In the UK model already considered, this is achieved through the police and Security Service being independently liable for their actions. Furthermore, the Security Service is not part of the police service, and has no law enforcement or police powers. Whilst both services enjoy operational independence in terms of not being controlled or directed in their day to day work by the Home Secretary, nevertheless they remain ultimately responsible at all times to this Government Minister, not least for any allegations of violations of rule of law principles.

This independence has also created the need for interdependence. When the Security Service develops an intelligence investigation to the point where it believes there to be sufficient evidence to warrant arresting the suspects, it liaises with the police who then consider the evidence. If they agree that sufficient evidence exists to support the suspicion of terrorist activity, they apply for warrants to carry out the arrests and commence property searches. Following the arrests and searches, the Security Service then cooperates with the Crown Prosecution Service, and the police ensure that all relevant material is made available to the courts.

This independence and interdependence of the police, intelligence agencies, and the prosecutor provides the necessary checks and balances that support the rule of law principles. It provides for independent scrutiny of the grounds for arrest and weight of evidence against those suspected of terrorist related crimes. Without such (p. 334) checks and balances, there are opportunities for unwarranted detention and malicious prosecution, leading to an infringement of human rights and a serious miscarriage of justice.

5.4.  Canadian Experience

So far this chapter has principally drawn upon examples of recent UK practice. The examination now turns to consider the situation in Canada, which provides a further opportunity to consider a relationship between the police and an intelligence agency in a modern liberal democracy, but from a different perspective. Historically, the relationship between the Canadian national intelligence agency and the national police force was not effective, which led to a serious miscarriage of justice following the failure to convict those behind a terrorist attack that resulted in the largest loss of life pre-9/11. The linkage is better today with improved liaison and joint operations.

The initial relationship between the Canadian national police, the Royal Canadian Mounted Police (RCMP), and the Canadian intelligence agency, the Canadian Security Intelligence Service (CSIS), was not a cooperative joint venture at the time the latter was formed in 1984. One of the first tests of the relationship was the investigation into the threat posed by Sikh separatists in 1985. As John C Major, the retired Canadian Supreme Court Judge who conducted the inquiry into the investigation of the 1985 bombing of Air India Flight 182, noted in his final report published in June 2010:21 ‘[a]lthough relations continue to improve, there remains a lack of understanding on the part of each agency of the other’s functions and national security mandates.’22

Major identified that the primary source of conflict existing between the CSIS and the RCMP stemmed from their respective core mandates. In particular, he pointed out that the ‘CSIS as an intelligence agency relied on secret sources and information received in confidence from allies to inform the Government of Canada about threats to the security of Canada. In contrast, the RCMP as a police force was dedicated to collecting evidence of crimes for public prosecutions.’23

For its part, the RCMP chose to manage the relationship with the CSIS by treating it as a ‘tip service’. By applying a philosophy of ‘the less information we obtain from (p. 335) CSIS, the better’24 the RCMP hoped to lessen the chances of a conflict with the CSIS and increase the likelihood of a successful police investigation. At the very least, such an attitude had the potential for duplication of effort but, and more important, life-saving intelligence may not be passed on. It would appear that rather than developing a cooperative partnership, the two organizations developed processes and procedures that precluded integration or teamwork. Consequently, they concentrated on a separation of activities that ensured each agency worked in isolation.

However, this status quo had to change following two bomb explosions which occurred on 23 June 1985, one of which killed the 329 passengers and crew of Air India Flight 182 in mid-flight over the Atlantic Ocean. The other had exploded some 59 minutes earlier at Tokyo’s Narita Airport whilst two baggage handlers were offloading luggage from a Canadian Pacific Airlines flight. The luggage had been destined for an Air India flight. Both bombs were planted in suitcases by the same group of Sikh terrorists, only one of whom, the bomb maker, has ever been convicted. This remains the largest mass murder in Canadian history and was the result of a cascading series of errors.25

The ‘Key Findings’ of the ‘Commission of Inquiry into the Investigation of the Bombing of Air India Flight 182’,26 which published its report in June 2010, clearly illustrate the likely consequences where policies and practices of non-cooperation between the police and a domestic intelligence service are pursued. The ‘Key Findings’ detail 80 points, divided into six sections. In particular, there are a number of points, listed here, which should be closely studied by senior intelligence officials and police officers, and drawn upon as a timely reminder of the unacceptable cost to public safety when intelligence agencies and law enforcement agencies act as competitors and not collaborators:

  1. (1)  ‘Government agencies were in possession of significant pieces of information that, taken together, would have led a competent analyst to conclude that Flight 182 was at high risk of being bombed by known Sikh terrorists in June 1985.’27 This illustrated a failure to utilize the skills and expertise of trained analysts.

  2. (2)  ‘The institutional arrangements and practices of information gathering agencies were wholly deficient in terms of internal and external sharing of information, as well as analysis.’28 This illustrated a failure of analysis and intelligence sharing.

  3. (p. 336)
  4. (3)  ‘CSIS surveillance was ineffective. Surveillants were unable to distinguish one traditionally attired Sikh from another. When a CSIS surveillance team observed experiments involving a test explosion conducted by Sikh extremists in the woods in Duncan, British Columbia in June 1985, the loud sound heard was misinterpreted as a gunshot. No photograph was taken of the unknown third person present (Mr X) because surveillants had not brought a camera.’29 This illustrated failures of expertise and professionalism by personnel who should have been skilled in surveillance.

  5. (4)  ‘Excessive secrecy in information sharing prevented any one agency from obtaining all necessary information to assess the threat. Excessive secrecy also prevented those on the frontlines from obtaining information necessary to put in place security measures responsive to the threat.’30 This illustrated an example of the rigorous application of the ‘need to know’ principle, rather than the ‘need to share’ principle. Nor were such inter-agency cooperative difficulties limited to their activities prior to the terrorist attacks, rather they similarly hindered subsequent criminal justice efforts.

  6. (5)  ‘CSIS often failed to disclose promptly to the RCMP information relevant to the criminal investigation, particularly information from human sources; or it disclosed information without sufficient detail, or in a manner that prevented the RCMP from using the information.’31 This illustrated another example of the rigorous application of the ‘need to know’ principle, rather than the ‘need to share’ principle.

  7. (6)  ‘CSIS was mesmerized by the mantra that “CSIS doesn’t collect evidence,” and used it to justify the destruction of raw material and information. CSIS erased the tapes that caught coded conversations possibly related to the planning of the bombing, and CSIS investigators destroyed their notes that recorded the information CSIS sources provided in relation to the Air India bombing. Both of these actions compromised the prosecution’s evidentiary position at trial.’32 This illustrated the failure to recognize the need for intelligence agencies and the police to cooperate in terrorist investigations to ensure the protection of public safety.

At the time of the publication of the report, Major was concerned that the following gaps still existed in the relationship between CSIS and the RCMP.

  1. (7)  ‘There is a lack of institutionalized coordination and direction in national security matters. Canadian agencies have developed a culture of managing information in a manner designed to protect their individual institutional interests.’33 (p. 337) This illustrated another failure to recognize the need for intelligence agencies and the police to cooperate in terrorist investigations to ensure the protection of public safety.

  2. (8)  ‘The current practice of attempting to limit the information CSIS provides to the RCMP in order to prevent its disclosure in potential criminal proceedings is misguided, as disclosure obligations at trial are engaged by potential relevance, not by which agency has the information. The result of such efforts to deny intelligence to the police is seen as an impoverished response to terrorist threats.’34 This illustrated a further failure to recognize the need for intelligence agencies and the police to cooperate in terrorist investigations to ensure the protection of public safety.

  3. (9)  ‘There is no “silver bullet” solution to reconciling the needs of intelligence and law enforcement. Neither interest is absolute and neither one can trump the claims of the other in all situations. Reform must be directed at improving decision-making by ensuring that the decision-maker is capable of taking into account both sets of interests as well as the broad national interest.’35

This final comment by Major succinctly encapsulated the controversy surrounding the relationship between intelligence and the police. The primary lesson learnt was that national intelligence agencies must be staffed by professionally trained and adequately equipped personnel, from analysts, to agent handlers, to surveillance officers, to legal advisers. Those staff, when engaged on the investigation of terrorist conspiracies, must have an understanding that one of the outcomes of their operations may be the prosecution of the suspects, requiring inter alia the admissibility of evidence gathered, inseparably linked also to adherence to key rule of law principles.

Fortunately, subsequent remedial action was taken to address many of these identified weaknesses and key lessons learnt, not least those that Major had identified regarding poor inter-agency cooperation. This is illustrated by the arrests in Canada in June 2006, and subsequent convictions in June 2010, of a number of terrorists who had been planning to detonate a series of fertilizer based bombs in Toronto. According to media reports of the trial, both CSIS and RCMP informants were involved and gave evidence.36 Had the plot succeeded there is little doubt that many people would have been killed and others seriously injured. Similarly, it is encouraging to note that CSIS and the RCMP appear to be continuing to work at further developing a closer and more effective professional working relationship, which will assist in better ensuring that Canada is seen as a hostile environment for terrorists and a safe environment for its citizens and visitors.

(p. 338) 5.5.  US Experience

A brief look at the situation in the US suggests that primary lessons on effective inter-agency partnerships and adherence to the rule of law are still being learned. That the US Government is committed to the rule of law is not questioned. As President Obama stated in April 2010: ‘The enduring legal principles of due process and equal protection of the law, judicial independence, access to justice, and a firm commitment to the rule of law will continue to allow us to address today’s concerns while anticipating tomorrow’s challenges.’37

However, previously he had criticized his intelligence agencies in January 2010 following their failure to prevent the, fortunately unsuccessful, attempt to explode an improvised explosive device on a passenger aircraft by Umar Farouk Abdulmutallab, the so-called Christmas Day bomber:

The U.S. government had sufficient information to have uncovered this plot and potentially disrupt the Christmas Day attack. But our intelligence community failed to connect those dots, which would have placed the suspect on the ‘no fly’ list. In other words, this was not a failure to collect intelligence; it was a failure to integrate and understand the intelligence that we already had. The information was there. Agencies and analysts who needed it had access to it. And our professionals were trained to look for it and to bring it all together … Intelligence, by its nature, is imperfect, but it is increasingly clear that intelligence was not fully analyzed or fully leveraged…. In short, we need our intelligence, homeland security and law enforcement systems—and the people in them—to be accountable and to work as intended: collecting, sharing, integrating, analyzing, and acting on intelligence as quickly and effectively as possible to save innocent lives—not just most of the time, but all the time.38

This was a serious criticism of the failure of the intelligence system; fortunately, on this occasion, the terrorist failed too.

The US intelligence system is different to many other systems, complicated especially by the plethora of agencies involved in the collection, assessment, and dissemination of intelligence which is conducive to producing conditions wherein the ‘dots are not connected’. Also, unlike many other liberal democracies, the US does not have an independent domestic intelligence agency; rather the domestic intelligence role is performed by the Federal Bureau of Investigation (FBI) which is a national law enforcement agency. The FBI has a long history of investigating human rights violations within the US, and its agents are well aware of the need to work within the rule of law and in accordance with due process.

(p. 339) The following case study is a good example of the consequences of failing to abide by either due process or the rule of law. Ali Soufan is a former FBI agent who was involved in international counter-terrorism operations before 9/11 and subsequently was involved in interviewing some of the key al Qaeda detainees in Guantánamo Bay, including Abu Zubaydah. He is very critical of the use of what he refers to as ‘enhanced interrogation techniques’, which both victims and many others consider to constitute torture or, at the very least, ‘cruel, inhuman or degrading’ treatment.39 The primary objective of such interrogation techniques is, generally, to elicit confessions, or information about past or future terrorist activity.

From my experience—and I speak as someone who has personally interrogated many terrorists and elicited important actionable intelligence—I strongly believe that it is a mistake to use what has become known as the ‘enhanced interrogation techniques’, a position shared by many professional operatives, including the CIA officers who were present at the initial phases of the Abu Zubaydah interrogation.40

Soufan was concerned that the techniques were both ineffective and unreliable: ‘These techniques, from an operational perspective, are ineffective, slow and unreliable, and as a result harmful to our efforts to defeat al Qaeda.’41 Furthermore, he stated that:

A second major problem with this technique is that evidence gained from it is unreliable. There is no way to know whether the detainee is being truthful, or just speaking to either mitigate his discomfort or to deliberately provide false information. A third major problem with this technique is that it is slow. A fourth problem with this technique is that ignores the end game. In our country we have due process, which requires evidence to be collected in a certain way. The CIA, because of the sensitivity of its operations, by necessity, operates secretly. These two factors mean that by putting the CIA in charge of interrogations, either secrecy is sacrificed for justice and the CIA’s operations are hampered, or justice is not served. Neither is a desirable outcome.42

The following extract from a declassified ‘Top Secret’ letter, written in 2002 from the US Department of Justice to the CIA, described some of the ‘enhanced interrogation techniques’ to which Soufan objected:

You would like to place Zubaydah in a cramped confinement box with an insect. You have informed us that he appears to have a fear of insects. In particular, you would like to tell Zubaydah that you intend to place a stinging insect into the box with him, you would, however, place a harmless insect in the box…. Finally, you would like to use a technique called the ‘waterboard’. In this procedure, the individual is bound securely … A cloth is placed over the forehead and eyes. Water is then applied to the (p. 340) cloth in a controlled manner…. This … produces the perception … of drowning…. the procedures will be stopped if deemed medically necessary to prevent severe mental or physical harm to Zubaydah.43

Ali Soufan clearly and concisely set out some of the primary objections to and dangers of using unethical, unnecessary, and unwarranted forms of interrogation. Any admissions from a person subjected to such treatment would be inadmissible in any reasonable court of law. When intelligence agencies are involved in extracting information from suspects under extreme duress, justice is denied. Justice is not only denied to the suspect, but also to the victims of his past atrocities. Law enforcement and intelligence agencies in liberal democracies must adhere to a code of conduct that clearly sets out the rule of law standards of behaviour to be adopted in the interviewing of suspected terrorists.

President Obama remains committed to the rule of law. This commitment is exemplified by his issuance of Executive Order 13491 on 22 January 2009, in which he prohibited the use of torture or cruel, inhuman, or degrading treatment on any person detained by US personnel in armed conflict:

All executive directives, orders, and regulations inconsistent with this order, including but not limited to those issued to or by the Central Intelligence Agency (CIA) from September 11, 2001, to January 20, 2009, concerning detention or the interrogation of detained individuals, are revoked to the extent of their inconsistency with this order…. [I]ndividuals detained in any armed conflict … shall in all circumstances be treated humanely and shall not be subjected to violence to life and person (including murder of all kinds, mutilation, cruel treatment, and torture), nor to outrages upon personal dignity including humiliating and degrading treatment), whenever such individuals are in the custody or under the effective control of an officer, employee, or other agent of the United States Government or detained within a facility owned, operated, or controlled by a department or agency of the United States.44

This Executive Order had the effect of ensuring that US intelligence and law enforcement agencies complied with the rule of law, which is what Ali Soufan was pressing for.

6.  International Law Enforcement Cooperation

One further significant aspect of law enforcement that is relevant to the current discussion concerns the importance of, and ways of developing, effective international (p. 341) inter-agency cooperative efforts. This is especially important in the current context in which terrorist activities have become increasingly transnational in nature.45 The following case study illustrates the positive outcomes that can be achieved from the development of excellent liaison between two police organizations from different jurisdictions, working to different criminal justice systems.

On the morning of 8 June 2000, the British Defence Attaché in Athens was murdered whilst driving to work in his official vehicle. As he sat in rush hour traffic, waiting for the traffic lights to change, he was fatally shot at close range by two men on a motorbike. Brigadier Stephen Saunders had become the twenty-third murder victim of the ‘Revolutionary Organization November 17’ (N17), a Greek domestic terrorist group that had been active for 25 years, with no previous arrests or prosecutions of its members.

In response, a small team of detectives from the Metropolitan Police headquarters at New Scotland Yard, including the current author, were despatched to Athens to provide assistance to the British Ambassador and his staff; to provide advice and support to Brigadier Saunders’ family; and to establish a liaison with the Greek police. It quickly became apparent that the Greek police did not possess the requisite skills, expertise, or proficiency to investigate this murder effectively. Consequently, offers of UK assistance were quickly, and gratefully, accepted by the Greek police and Government. This was a unique experience for the personnel involved, both from the UK and Greece.

The murder of Stephen Saunders rightly provoked a sense of outrage both in the UK and in Greece, with Stephen’s widow, Heather, working tirelessly to ensure that the murder of her husband would not be allowed to become another statistic to be ignored. However, consequently it was also a very sensitive operation, especially because the Greek police were being heavily criticized by the domestic and international media over their failure to arrest, let alone prosecute, any member of N17. Nevertheless, the Scotland Yard team were successful in establishing an excellent working relationship with their Greek colleagues, based on mutual trust and the understanding that they were working to a common purpose, which was to bring to justice the murderers of Brigadier Stephen Saunders.

In terms of strengthening existing Greek policing practices and related criminal justice rule of law principles, the British police team identified a number of key gaps in the capability and capacity of the Greek police whilst working alongside the Greek investigators. The subsequent reports to both the British and Greek Governments resulted in key recommendations being implemented. Additionally, other gaps in (p. 342) the Greek Government’s strategic response were identified by reviews conducted by the British Foreign and Commonwealth Office.

Most encouragingly, the Greek police and Government reacted very rapidly and positively to the recommendations made by their British counterparts. As the Greek Minister of Public Order, Michalis Chrysochoidis, noted: ‘… the culminating effect of Brigadier Stephen Saunders’ assassination was to create the full awareness, a conscious awareness, in the Greek mind, that terrorism was compromising Greek national interests and seriously damaged the nation’s external image. Moreover, the Greek people could not accept the human side of the Saunders family’s grief and expressed their outrage in the murder.’46

This demonstrated also some growing recognition of related needs and rule of law rights of victims of terrorism attacks.47 The Minister outlined some of the improvements being introduced in Greece, following recommendations from the UK:

[First, t]he substantial increase of awards to $4.2 million for any information that may lead to arrests or dismantling of November 17. Second, we [have] created two confidential hotlines for citizens wishing to remain anonymous, [to] call with information that could assist in our investigations. Third, a comprehensive strategy proposal for the effective handling of terrorism based on a three-axle strategy: Law Enforcement, Investigations, and Communication policy. This policy is now being implemented. Fourth, the Ministry of Justice has prepared a bill to be presented in Parliament next month reforming our laws so that they come closer to that of our European partners. Changes in this bill include the right to try terrorists in a non-jury special high court, a witness protection program, and the creation of undercover police squads. Finally, there have been major changes within the Ministry of Public Order’s Counter-terrorist Unit, one of the most important ones being [the] creation of an independent Intelligence Unit made up of 80 officers. All these measures will make a qualitative difference in our counter-terrorist efforts. There is no going back or falling between the cracks anymore. We feel the urgency. We see the dangers. Greece is, and has been, the ultimate victim of terrorism. We are determined to make all the changes necessary to ensure an institutionalized infrastructure capable of combating terrorism effectively.48

This was a very rapid and positive response to the murder of Stephen Saunders, given that Minister Chrysochoidis announced these measures within three months of the murder.

(p. 343) The improvements proposed by the Scotland Yard team were immediately adopted by the Greek police, including:

  1. (1)  Critical incident training for first responders, and their supervisors, to a crime scene or major incident, including, ‘First steps at the scene of a crime’.

  2. (2)  Terrorist crime scene training, including crime scene management and the identification, collection, and preservation of evidence. This training included ‘Bomb Squad’ officers and terrorist crime investigators being trained together.

  3. (3)  Training in the interviewing of terrorist prisoners, particularly in the ethical treatment of prisoners whilst in police custody. This training also involved the Public Prosecutor.

  4. (4)  Forensic training, including the provision of specialist forensic support at crime scenes and laboratory examination procedures. This included the ad hoc secondment of a specialist fingerprint expert from New Scotland Yard who worked closely with his Greek counterparts.

  5. (5)  Analytical training, which included the establishment of an Analytical Research Unit, based on a similar unit within New Scotland Yard. It also included training sessions on how to process information and provide added value to an investigation.

  6. (6)  Intelligence development, including methods of collecting intelligence and how to turn intelligence into evidence. The Greek police lacked basic skills and knowledge of the concept of ‘Intelligence led Policing’.49

The underpinning philosophy of this comprehensive training programme was to educate the Greek police officers in the value of crime scene management, preservation, and collection of evidence supported by the development of an analytical intelligence capability. Historically, Greek courts placed a lot of weight on confessions from the accused. Therefore, in the absence of overwhelming forensic evidence, the temptation was for the Greek police to use a degree of coercion during interviews in order to secure a confession of guilt from the alleged perpetrator. Given the high level of interest in this investigation, and the involvement of British police officers, it was crucial that any arrests and interviews were conducted in accordance with due process, that suspects were not subjected to any form of abuse, and that all possible evidence was collected and presented to the court. In effect the partnership that developed between the British and Greek police officers ensured that key rule of law principles were not only fully understood, but also complied with, with the evidence collected resulting in the conviction of the terrorists.

Significantly, whilst this training programme was progressing, a small team of UK analysts continued to work alongside their Greek colleagues reviewing 25 years of attacks by N17. Every one of the 103 separate incidents was critically analysed resulting in previously undiscovered links being identified, thereby enabling more (p. 344) effective and proactive operations to be mounted against the terrorist organization and to support any future prosecutions.

Subsequently, in June 2002, two years after their previous attack, N17 struck again. This time, while attempting to plant two small bombs at a ferry terminal in the port of Piraeus, one of the bombs exploded prematurely injuring the bomber. Police quickly attended the scene and within weeks had succeeded in arresting the entire N17 group and recovered the entire cache of weapons and explosives, together with other terrorist paraphernalia. Significant admissions were made by the terrorists and a wealth of overwhelming forensic evidence recovered.

The outcome of the two year partnership between the British and Greek police, supported by both Governments, was the complete destruction of a domestic terrorist group that had operated unscathed for 27 years. In December 2003, 15 members of N17 were convicted in Athens and sentenced to long terms of imprisonment. Then, on 14 May 2007, the Athens Court of Appeals issued consolidated sentences in the N17 appeals trial. There were 226 counts of major felonies (murder, attempted murder, attacks with explosives) in the original trial, resulting in convictions on 224 counts. Six members of the operational core of N17 received a total of 44 life sentences. This was a clear victory for, and clearly demonstrates the significant benefits of, upholding the rule of law, even in the face of significant popular and/or political pressure to secure convictions.

The fundamental lesson from this investigation is that law enforcement officers must work within the rule of law. They must not use violence, oppression, or threats to gain admissions from suspects, but present them with overwhelming evidence, gained from forensic examination, and seek their explanation. It is only through these means that terrorists will be ‘safely’ convicted and their sentences confirmed should they subsequently appeal against conviction.

This example of bilateral cooperation also highlights more generally the benefits of international liaison, not least in terms of learning, teaching, and/or passing on good policing practices amongst law enforcement officers. However, it is regrettable that, in many cases, it takes a tragic loss of life before such liaisons are established.

7.  Policing Counter-Terrorism Tools and the Rule of Law

Police officers employed in countering terrorism have a range of tools available to them to enable them to do their job more efficiently and effectively. These tools include a wealth of additional powers from the variety of statutes dealing with terrorism and terrorists; an enhanced forensic science capability; specialist equipment, including devices for surveillance, communication, and data transmission, as well as a raft of specialist training and exercises.

(p. 345) However, some terrorist legislation may be regarded as being ‘draconian’ and undermining, rather than strengthening, core foundational rule of law principles, not least those of human rights. One such example is the Northern Ireland Prevention of Terrorism Bill which, when presented to Parliament in 1974, was actually described by the then Home Secretary, Roy Jenkins, in terms of being ‘draconian measures unprecedented in peacetime’.50 In particular, the Bill provided police with the power to arrest and detain suspected terrorists for up to 48 hours in the first instance, and for a maximum of seven days if the police applied to the Home Secretary for additional time; and also allowed for exclusion orders to be made against people suspected of involvement in terrorism. Under the now repealed Prevention of Terrorism Acts, exclusion orders could be issued by the Home Secretary ‘as expedient’ to prevent terrorism relating to Northern Ireland. Orders were issued against individuals either to prevent them entering or being in Great Britain, to exclude them from Northern Ireland, or to exclude them from the UK. It was an offence to breach an order or to aid another in effecting entry; the maximum sentence was five years’ imprisonment and an unlimited fine.51

Despite the continual need to reassess particular security imperatives against rule of law implications, anti-terrorism legislation remains an important counter-terrorism tool, especially due to the important differences which exist between ‘terrorism’ crimes and ‘ordinary domestic’ crimes. The former are often concerned with politically motivated crimes targeted directly at the state; agents of the state, such as the police, military, judicial, or political figures; or even indiscriminate attacks on the general public with murderous intent. In contrast, ‘ordinary domestic’ crimes are normally motivated by personal gain, which could be financial, sexual, physical (that is, violent), etc. Whilst the methodology of the perpetrators may sometimes be similar—for example, serious organized criminals may use assault rifles or improvised explosive devices in their criminal endeavours, whilst terrorists may use vehicle theft, fraud, and robbery as part of, or in support of, their terrorist crimes—their overarching objectives, and resultant impact, are fundamentally different. Consequently, a primary reason for counter-terrorism legislation is to provide law enforcement agencies with special powers to prevent terrorists from inflicting a scale of public harm that far outweighs the scale of public harm that domestic criminals are normally prepared to inflict.

The primary purpose of good counter-terrorism law and policies is to provide the necessary additional powers to the police to investigate, interdict, and prevent acts of terrorism before they pose a threat to public safety. However, as already noted, these are issues where significant tensions may exist between the ultimate objectives (p. 346) of operational policing, and specific rule of law principles, especially to ensure that any exceptional measures do not slip into becoming the norm, which is a potential risk inherent within any security related legislation and policies. As Lord Carlile has pointed out: ‘… it is essential that the public need to be reassured that counter-terrorism law is used only for counter-terrorism purposes. A continuous narrative is needed from government as to the nature of current terrorist threats and how the authorities are progressing against those threats. Good counter-terrorism law is law understood by the public, as to rationale and means.’52

Similarly, such civil liberty tensions were articulated on 13 July 2010 by the Home Secretary, Theresa May: ‘National security is the first duty of government but we are also committed to reversing the substantial erosion of civil liberties. I want a counter-terrorism regime that is proportionate, focused and transparent. We must ensure that in protecting public safety, the powers which we need to deal with terrorism are in keeping with Britain’s traditions of freedom and fairness.’53

Therefore, whilst legislation must be the foundation of the police response to countering terrorism, from a rule of law perspective it is essential that it is kept under constant review, being amended or updated as is necessary to keep it aligned to, and proportionate with, the threat to public safety. As pointed out by Edmund Burke, as far back as 1780, ‘bad laws are the worst sort of tyranny’.54

In addition to safeguarding fundamental rights which include liberty, and those of due process such as the presumption of innocence, it is essential to the effectiveness of counter-terrorism policing that other significant human rights are also protected. One which has certainly been at the centre of recent controversies relating to UK practices, which is illustrated by the Belmarsh detainees controversy, is the importance of avoiding, or at the very least mitigating where possible, discriminatory legislation and policies.55 This is especially important in counter-terrorism responses due to the very nature of terrorism as a methodology adopted by the few and the weak against the many and the strong, a primary objective of which is to undermine the rule of law; and as a tactic employed by individuals who use minority ethnic communities as ‘safe havens’ for their violent activities. With respect to the latter, any resultant stereotyping of groups of individuals, ethnic groups, or members of a particular religion, as ‘terrorists’ is likely to prove counter productive, divisive, and (p. 347) to lead to an increase in tension and accompanying reduction of intelligence from the communities where such terrorists originate.

Other underlying, and related, security imperative tensions are attributable to the challenge of combating the modern threat from terrorists whose mission is to kill as many people as possible and who are prepared to die to achieve their purpose. This is an example of the ‘tame’ and ‘wicked’ problems theory, as originally postulated by Rittel and Webber in 1973,56 and later adapted by Grint, to include ‘critical’ problems. As Grint explains:

Wicked problems are problems that you have either never faced before or never been able to resolve. Tame problems are problems which we spend all our day doing because we know how to do them, and so the application of standard procedures is how we deal with tame problems. Critical problems are basically a crisis, where you don’t have time to worry about standard procedures, nor do you have time to do what you would do with a wicked problem, which is to ask lots of questions and to engage collaboration. You have to make the decisions there and then and you have to do something decisive.57

This concisely identifies the overarching challenge for police officers when dealing with the threat from terrorism. Whilst tame problems are not necessarily easy problems, they have an end state, a ‘right’ or ‘wrong’ solution, or a ‘yes’ or ‘no’ answer. They have precedents and have been dealt with before. The challenge of a wicked problem is identifying it as a wicked problem rather than a tame problem. Tame problem solutions will not work for wicked problems, which have a ‘better’ or ‘worse’ option or a solution that results in ‘more’ or ‘less’ harm.

The added challenge for police officers engaged in countering terrorism is the ‘critical’ element of time, where decisions have to be made there and then. It is therefore vital that the nature of the problem is identified as soon as possible, to ensure that the correct methodology (namely ‘tame’ or ‘wicked’) to address the challenge is applied at the earliest opportunity.

Senior police officers engaged in countering terrorism need to accept that at times they may have to make immediate and urgent decisions because of the risk to public safety. These decisions may be based on scenarios that they have not previously experienced or even contemplated. The lesson is that senior police officers engaged in countering terrorism must be well trained in counter-terrorism strategy and tactics; understand the complex nature of the threat and the consequences of their actions, or inaction; and have an in-depth knowledge, respect, and understanding (p. 348) of key rule of law principles which they instinctively draw upon and factor into such difficult and complex operational decision-making.

8.  Key Rule of Law Recommendations for Counter-Terrorism Policing

This final section seeks to draw together the key rule of law lessons identified throughout this chapter in the form of a proposed outline of generic code of practice for law enforcement practitioners engaged in countering terrorism, representing minimum acceptable standards.

Certainly, all counter-terrorism policing should be underpinned by a code of practice which at the very least builds upon and reinforces the ‘Code of Conduct for Law Enforcement Officers’ published by Interpol.58 Whilst the Interpol Code of Conduct is useful in that it provides the foundation for ethical policing, it is insufficient on its own for counter-terrorism policing due to its generic nature which does not address these specific issues in any detail. Consequently, it should be supported by a specific code of practice for law enforcement and intelligence officers engaged in countering terrorism. The following is proposed as an initial attempt to develop a draft code of practice.

8.1.  Draft Code of Practice for Law Enforcement Officers engaged in Counter-Terrorism

  • •  The fundamental principle for all law enforcement officers is that they must maintain a high standard of professional behaviour when interviewing, or otherwise dealing with, individuals involved in, or suspected of, terrorism.

  • •  In all of their law enforcement activities, officers must work within fundamental rule of law principles (especially those of human rights and criminal law). Consequently, the security imperative must never be allowed to defeat the rule of law. There is a danger that if the state overreacts to the threat from terrorism by imposing draconian, unlawful, or illegitimate measures on its citizens, the state will lose its legitimacy and effectiveness to govern, thereby increasing support for the terrorists it is seeking to counter.

  • •  It is never legally, legitimately, or morally defensible for law enforcement officers to utilize violence, oppression, or threats to gain admissions or confessions from suspects. Instead, it is essential to present such suspects with evidence of their involvement in any alleged terrorist crime(s), supported by forensic or other expert evidence where available, and seek their explanation.

  • (p. 349)
  • •  The primary purpose of effective counter-terrorism law is to provide additional powers to law enforcement officers to investigate, interdict, and prevent acts of terrorism before they pose a threat to public safety. Such legislation, which is generally more onerous and restrictive in nature, should be confined to terrorist related investigations and never applied to ordinary domestic criminal investigations.

  • •  The relationship between law enforcement organizations and national intelligence agencies should be complementary, based on trust, mutual understanding and supported by effective and efficient cooperation and collaboration, when and where necessary. It is essential that all of their policy and operational decision-making processes are clearly informed and influenced by applicable rule of law principles, thereby reflecting a strong commitment to the indivisible nature of the rule of law.

  • •  It is essential that senior law enforcement officers understand the need to develop a close working partnership with their counterparts in the domestic intelligence service, supported to this end by the necessary specially trained and dedicated personnel with access to specialist equipment.

  • •  All law enforcement officers must have a basic awareness of the nature of the threat from terrorism. They must be clear about their specific role and responsibility in the detection, deterrence, and disruption of terrorist activity. They must work with the communities they police to counter the threat from terrorism.

  • •  Although the outcome of terrorist crime is predominantly murder and damage to property, as far as is reasonably possible every effort should be made to develop and employ specially trained and dedicated law enforcement officers to investigate such offences, due to their specific inherent challenges and complexities not generally encountered in the investigation of ordinary criminal offences. Ideally, there should exist a permanent cadre of experienced counter-terrorism investigators, or detectives, who undergo specialist, on-going training and participate in exercises including other domestic/international counter-terrorist agencies.

  • •  Senior law enforcement officers engaged in countering terrorism must be well trained in counter-terrorism strategy and tactics; understand the complex nature of the threat and the consequences of their actions, or inaction; and be very familiar with rule of law principles which may be reflected instinctively within their responses.

8.2.  Conclusion

The overarching conclusion drawn from the current examination is that in order for counter-terrorist policing to be effective, the police must have the support of the public. Countering terrorism is something that the police do in partnership with the public, not something that they impose on the public.

This partnership is closely linked to the need for law enforcement agencies and governments to demonstrate moral courage, especially through being willing to identify and learn from their own failures as well as those of others, in addition to (p. 350) building upon their successes. Both need to be reflected as appropriate within their own standard practice, which should never be static, but rather constantly evolving and being refined. Ultimately, however, the achievement of public confidence, and the effectiveness of counter-terrorist operations and policies are indivisibly linked with, and proportionate to, an agency’s respect for and adherence to the rule of law in the fulfilment of its security imperative objectives.


Sir D Veness, ‘Foreword’ (2005) 17 Terrorism and Political Violence 1.

G Mason, The Official History of the Metropolitan Police (Carlton, London 2004) 96.

P Clarke, Deputy Assistant Commissioner, ‘Learning From Experience—Counter Terrorism in the UK since 9/11’ (The first Colin Cramphorn Memorial Lecture hosted by Policy Exchange, 24 April 2007) http://www.gees.org/documentos/Documen-02228.pdf〉 accessed 2 August 2011.

Clarke (n 3).

‘MPS Specialist Operations’ http://www.met.police.uk/so/counter_terrorism.htm〉 accessed 14 February 2011.

R Reiner, The Politics of the Police (OUP, Oxford 2000) 75.

M Albright, ‘US Secretary of State speech’ (Speech at University of World Economy and Diplomacy, Tashkent Uzbekistan 2006) cited in R Bingham, The Rule of Law (Allen Lane, London 2010) 133.

C Gearty, ‘Human Rights in an age of Counter-Terrorism’ (Oxford Amnesty Lecture, 23 February 2006) cited in Bingham (n 7) 137.

Bingham (n 7) 8.

10  Bingham (n 7) 9.

11  G Mulgan, Good and Bad Power, the Ideals and Betrayals of Government (Penguin, London 2007) 245.

12  Mulgan (n 11).

13  Clarke (n 3).

14  C Andrew, The Defence of the Realm: The Authorized History of MI5 (Allen Lane, London 2009) 776.

15  E Manningham-Buller, ‘The International Terrorist Threat to the UK’ in P Hennessy (ed), The New Protective State; Government, Intelligence and Terrorism (Continuum Publishing Group, London 2007) 72. Similar sentiments were expressed by Peter Clarke with respect to the police’s relationship with the Security Services: Clarke (n 3).

16  ‘“Serious Flaws” in Iraq Intelligence’ BBC News (14 July 2004) 〈http://news.bbc.co.uk/1/hi/uk_politics/3890961.stm〉 accessed 14 February 2011.

17  Clarke (n 3).

18  See further J Oikarinen, ‘Parliamentary Oversight of Counter-Terrorism Policies’, Chapter 34 of this volume.

19  E Manningham-Buller, ‘The International Terrorist Threat to the United Kingdom’ (Speech at Queen Mary’s College, London, 9 November 2006) 〈https://www.mi5.gov.uk/output/the-international-terrorist-threat-to-the-uk-1.html〉 accessed 11 February 2011.

20  E Manningham-Buller, ‘The International Terrorist Threat and the Dilemmas in Countering it’ (Speech at The Ridderzaal, Biennenhof, The Hague, 1 September 2005)https://www.mi5.gov.uk/output/director-generals-speech-to-the-aivd-2005.html〉 accessed 12 February 2011.

21  Commissioner JC Major, ‘Air India Flight 182: A Canadian Tragedy’ (Commission of Inquiry into the Investigation of the Bombing of Air India Flight 182, 17 June 2010 (Commission of Inquiry)) 〈http://epe.lac-bac.gc.ca/100/206/301/pco-bcp/commissions/air_india/2010-07-23/www.majorcomm.ca/en/reports/finalreport/default.htm〉 accessed 25 October 2010.

22  JC Major, ‘Air India Flight 182: A Canadian Tragedy Volume 3: The Relationship Between Intelligence and Evidence and the Challenges of Terrorism Prosecutions’ (Commission of Inquiry) 22 〈http://epe.lac-bac.gc.ca/100/206/301/pco-bcp/commissions/air_india/2010-07-23/www.majorcomm.ca/en/reports/finalreport/volume3/volume3.pdf〉 accessed 12 February 2011.

23  Major (n 21) 22.

24  Major (n 21) 22.

25  JC Major, ‘Air India Flight 182: A Canadian Tragedy Volume 1: The Overview’ (Commission of Inquiry) 1 〈http://epe.lac-bac.gc.ca/100/206/301/pco-bcp/commissions/air_india/2010-07-23/www.majorcomm.ca/en/reports/finalreport/volume1/volume1.pdf〉 accessed 12 February 2011.

26  Major (n 21).

27  Major (n 21) Key Findings 1.

28  Major (n 21) Key Findings 1.

29  Major (n 21) Key Findings 1.

30  Major (n 21) Key Findings 2.

31  Major (n 21) Key Findings 4.

32  Major (n 21) Key Findings 4.

33  Major (n 21) Key Findings 7.

34  Major (n 21) Key Findings 7.

35  Major (n 21) Key Findings 7.

36  I Teotonio and N Javed, ‘The Aftermath’ Toronto Starhttp://www3.thestar.com/static/toronto18/index.6.html〉 accessed 14 February 2011.

37  President B Obama, ‘Presidential Proclamation—Law Day USA’ (A Proclamation, The White House Office of the Press Secretary, 29 April 2010) 〈http://www.whitehouse.gov/the-press-office/presidential-proclamation-law-day-usa〉 accessed 12 February 2011.

38  President B Obama, ‘Remarks by the President on Security Reviews’ (Speech, The White House Office of the Press Secretary, 5 January 2010) 〈http://www.whitehouse.gov/the-press-office/remarks-president-security-reviews〉 accessed 14 February 2011.

39  See further R Pregent, ‘Torture, Interrogation, Counter-Terrorism, and the Rule of Law’, Chapter 20 of this volume.

40  A Soufan, ‘Testimony of Ali Soufan’ (US Senate Committee on the Judiciary, 13 May 2009) 〈http://judiciary.senate.gov/hearings/testimony.cfm?id=e655f9e2809e5476862f735da14945e6&wit_id=e655f9e2809e5476862f735da14945e6-1-2〉 accessed 2 August 2011.

41  Soufan (n 40).

42  Soufan (n 40).

43  JS Bybee (US Assistant Attorney General), ‘Memorandum for John Rizzo Acting General Counsel of the Central Intelligence Agency: Interrogation of al Qaeda Operative’ (Office of the Assistant Attorney General, 1 August 2002) 3 〈http://s3.amazonaws.com/nytdocs/docs/151/151.pdf〉 accessed 10 February 2011.

44  President B Obama, Executive Order 13491 of 22 January 2009 〈http://edocket.access.gpo.gov/2009/pdf/E9-1885.pdf〉 accessed 1 February 2011.

45  See too M Coninsx, ‘Strengthening Interstate Cooperation: The Eurojust Experience’, Chapter 35 of this volume.

46  M Chrysochoidis, Greek Minister of Public Order (Speech at Woodrow Wilson International Center for Scholars, 7 September 2000) 〈http://www.wilsoncenter.org/event/crime-terrorism-and-law-enforcement-southeastern-europe〉 accessed 26 July 2011.

47  See further I Bottigliero, ‘Realizing the Right to Redress for Victims of Terrorist Attacks’, Chapter 33 of this volume.

48  Chrysochoidis (n 46).

49  Author’s personal knowledge and experience as the British Police Senior Investigating Officer.

50  ‘A Chronology of the Conflict 1974’ (CAIN Web Service) 〈http://cain.ulst.ac.uk/othelem/chron/ch74.htm〉 accessed 14 February 2011.

51  See, for example, Prevention of Terrorism (Temporary Provisions) Act 1989 (now repealed) 〈http://www.legislation.gov.uk/ukpga/1989/4/contents〉 accessed 2 August 2011.

52  Lord Carlile of Berriew QC, ‘Report on the Operation in 2009 of the Terrorism Act 2000 and Part 1 of the Terrorism Act 2006’ (Independent Reviewer of Terrorism’s Annual Report 2009, July 2010) 5 〈http://www.homeoffice.gov.uk/publications/counter-terrorism/independent-reviews/ind-rev-terrorism-annual-rep-09〉 accessed 14 February 2011.

53  ‘Rapid review of counter-terrorism powers’ (Press Release, Home Office Media Centre, 13 July 2010) 〈http://www.homeoffice.gov.uk/media-centre/press-releases/counter-powers〉 accessed 14 February 2011.

54  E Burke, Speech at Bristol previous to the Election (1780).

55  See further D Moeckli, ‘Anti-Terrorism Laws, Terrorist Profiling, and the Right to Non-Discrimination’, Chapter 23 of this volume.

56  M Webber and H Rittel, ‘Dilemmas in a General Theory of Planning (1973) 4 Policy Sciences 155–69.

57  K Grint, ‘Leadership, Management and Command: Rethinking D-Day’ (Interview with Professor Keith Grint, Knowledge Interchange, Cranfield University School of Management, 2008) 〈http://www.som.cranfield.ac.uk/som/dinamic-content/media/knowledgeinterchange/booksummaries/210/Transcript.pdf〉 accessed 12 February 2011.

58  ICPO-INTERPOL Resolution AGN/68/RES4, ‘The Seoul Declaration’ 〈http://www.interpol.int/Public/ICPO/GeneralAssembly/agn68/Resolutions/agn68RES4.pdf〉 accessed 2 August 2011.