In his response to the attempted terrorist bombings in London and the attack in Glasgow, British Prime Minister Gordon Brown may have revealed a change of approach to counterterrorism. There was no overreaction, despite the seriousness of the threat, and no rush to introduce new security measures that flout human rights.
But will this lead to a reversal of government policies that, in the name of national security, are undermining two key pillars of liberty: the absolute prohibition of torture and the fundamental rule against prolonged detention of suspects without charge?
After 9/11, the then British Prime Minister Tony Blair sought to justify sending terrorism suspects to governments that routinely torture by securing unenforceable promises that, at least for those individuals, the government would suddenly behave. As a back-up plan, he pressed the European Court of Human Rights to allow governments to invoke security to override the law against sending suspects to places where they risk mistreatment.
Similarly Blair, and even Brown, pushed for the power to detain suspects without charge not just for 28 days — already the longest period in the West — but for 90.
Communications
The irony is that Blair refused to press for the one law-enforcement tool that could make a difference: the introduction at trial of intercepts of suspects’ criminal communications. So long as a judicial warrant for the intercept was obtained after a showing of reasonable suspicion that criminal activity would be discussed, admitting intercept evidence at trial is entirely consistent with international human rights law. With the announcement of a privy counsellor review of the subject, Brown seems to realise that it is time for a new approach.
What is behind intelligence services’ objections to intercepting criminal communications? Partly fear that secret methods will be compromised, but it is no surprise to the average terrorist that his communications might be monitored. The security services also fear that defence lawyers might request the release of material that would jeopardise ongoing investigations unrelated to the prosecution at hand. But countries with similar legal systems have found ways to limit the disclosure of such material without undermining the right to a fair trial.
Although US President George W Bush claims that “tough” interrogation techniques are the key to cracking terrorist conspiracies, a far more important source of information is tips from the general public. For example, a member of the Muslim community led the police to discover the plot to bomb transatlantic aircraft. Relatives reportedly gave information that led to the arrest of those accused of the 21 July attempted bombings.
Winning or losing
Maintaining the moral high ground and winning what Brown calls “the struggle of ideas and ideals” are also essential in the high-stakes struggle with terrorist recruiters. Most people are law-abiding and would never resort to terrorism. Others are firmly committed to terrorism and need no provocation. But the fight against terrorism will be won or lost in the “swing vote” — the angry young men who have deeply felt grievances and are trying to figure out how to address them.
As jihadist websites demonstrate, terrorist recruiters have long understood that abuses in the name of counterterrorism are among the best recruiting devices they have. By delegitimising the counterterrorism effort, they facilitate the terrorists’ essential task of replenishing their ranks.
Brown has already shown himself open to thoughtful reconsideration of the Blair approach. His emphasis on the need to win the hearts and minds of ordinary Muslims offers the hope that with his unemotional, businesslike approach to counterterrorism, Brown means it when he promises “change”.
So rather than risk losing the moral high ground by considering the lawless ways advocated by Blair, Brown should press for the authorised use of intercept evidence in court.
(Observer)