Rethinking the War on Terrorism

By Matthew Harwood
The United Kingdom responded to the terrorist attacks of September 11, 2001, in the United States and the July 7, 2005, London transit bombings by passing a host of laws to strengthen law enforcement and intelligence collection. The three most significant powers were precharge detention, random stop and search by police, and control orders. The first granted police the authority to detain terrorism suspects for longer periods of time without charge; the second gave police the power to randomly stop and search anyone without suspicion in defined geographical areas; and the third provided law enforcement with the authority to place highly restrictive control orders on terrorism suspects.
Critics have objected to the impact of the expanded police powers on civil liberties and have questioned their efficacy in thwarting terror. Now, following a seven month review (.pdf), the new Conservative and Liberal Democratic coalition government is scaling back these powers.
Security Management looks at what both the proponents and detractors have to say about these three core powers and how they are currently being reformed.
Precharge Detention
Under the precharge detention authority, police can detain someone without charging him or her. The authority existed before 9-11, but in 2003, it was enhanced to permit police to hold a terrorism suspect for up to 14 days. In 2006, Parliament rebuffed Prime Minister Tony Blair’s push for an extension to 90 days. Instead, Parliament extended it to 28 days, with the proviso that the government justify extending the power annually, or it would revert back to 14 days. Later, Prime Minister Gordon Brown made an unsuccessful attempt to have the time allowed extended to 42 days.
Acknowledging that the 28-day precharge detention was unnecessarily long, Home Secretary Theresa May, who is responsible for British homeland security, refused to provide a justification as required in January, and the extended authority expired. A day later, May released the government’s counterterrorism review, which included the administration’s recommendation that the 14-day period be made permanent.
Precharge detention, according to its defenders, is an essential counterterrorism tool, given the unique nature of the terrorist threat. Terrorism, they argue, unlike ordinary crime, does not give police the luxury of waiting for an act to be committed before making an arrest. Police may have to strike preemptively, arresting suspects before they’ve collected enough evidence to prosecute the subjects. With precharge detention, police have time to collect enough evidence to prosecute suspects while denying them the opportunity to leave the country or,worse, to carry out their attack.
Proponents also argue that the unique nature of jihadist plots requires precharge detention. Police must investigate multiple suspects and map their networks, collect evidence from electronic devices that is sometimes in different languages, and collaborate with counterparts in foreign countries that often have very different legal systems. These factors, they argue, make terrorism investigations harder to conduct quickly.
As proof that more than 14 days of precharge detention are necessary, police point to the 2006 liquid-bomb plot in which perpetrators sought to blow up 10 airliners over the Atlantic Ocean. When the London Metropolitan Police and British domestic intelligence agency MI5 broke up the plot, 24 suspects were arrested and mountains of evidence were collected. When Brown sought to have Parliament extend precharge detention to 42 days, he explained that “400 computers, 8,000 disks, and more than 25,000 exhibits” were seized by police during the investigation, dubbed Operation Overt, making for an incredibly time-consuming and complex investigation.
Conservative Freshman Member of Parliament (MP) Dominic Raab, however, says these arguments don’t stand up to scrutiny. “Looking at the cases since 2006, only one has gone beyond 14 days—an isolated case of 19-day detention. I am confident it is safe to reduce the excessive 28-day limit without impairing public protection or law enforcement,” he tells Security Management.
Other critics of 28-day precharge detention concur. They call the power abusive and out of step with other liberal democracies around the world. In the United States, for instance, police can only hold a suspect for 48 hours before a charge must be brought. Even in Russia, a country constantly plagued by terrorist attacks and described as “not free” by the civil rights group Freedom House, suspected terrorists can only be held for five days without charge.
The new coalition government’s review noted that the power to detain a suspect for longer than 14 days hadn’t been used since July 2007. In its recommendations, the Home Office concluded that 14 days of precharge detention was a sufficient amount of time for police to make a case against a terrorism suspect.
To placate proponents of a longer precharge detention limit, the review also recommended that “[e]mergency legislation extending the period of precharge detention to 28 days should be drafted and discussed with the Opposition, but not introduced, in order to deal with urgent situations when more than 14 days is considered necessary, for example in response to multiple coordinated attacks and/or during multiple large and simultaneous investigations.”
Following through on that recommendation in the recently introduced Freedom Bill, the coalition government has asked Parliament to limit the amount of time a terrorism suspect can be detained without charge to 14 days. At the same time, the Home Office drafted emergency legislation to temporarily extend the 14 day precharge detention limit to 28 days in extraordinary circumstances. In an emergency, the government could introduce the legislation and Parliament could decide whether the circumstances warranted 28 days again on a temporary basis.
Whatever happens, Peter Clarke, the former head of New Scotland Yard’s Anti-Terrorism Branch, doesn’t believe the government will cut precharge detention limits any further. “Fourteen days is still double where we started from in 2000,” he notes, referring to the Terrorism Act of 2000, which allowed police to hold a terrorism suspect for seven days maximum. “The fact that they have kept the provision that there could be a further extension subject to parliamentary scrutiny [means] they too recognize that there might be occasions when 14 days is insufficient,” says Clarke, currently a fellow at New York University’s Center on Law and Security.




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